Worker Empowerment

12^th June, 2009

New ongoing violations after the implementation of

Labour Contract Law in China

-         Calling workers to learn the labour legislations actively

-         Calling the society to pay close attention on workers’ rights

-         Calling the government to monitor the law implementation and enforce severely

 

Wrote by Shenzhen Dagongzhe Migrant Worker Centre

Translated by Workers Empowerment and IHLO

 

Since 1 January 2008, the PRC’s “Labour Contract Law” has come into effect, which shows the government’s focus on re-adjusting labour relation and its dedication on safeguarding workers’ legal rights and interests.

 

After several months, it is time to ask, have workers’ legal rights and interests been effectively protected? In order to understand the effect of the law, Shenzhen Dagongzhe Migrant Worker Centre conducted a survey and interview workers in different areas of Shenzhen city, together with several invited civil organizations. In total 320 valid questionnaires, out of 380, were returned. Ten workers were invited for in-depth interviews, as the organization intended to know certain specific phenomena better, and nine valid interviews were done. From the results, we could tell that the unbalanced power relation, sometimes detrimental, between workers and employers still maintained. Even in the wake of the Contract Law, some employers continue to turn a blind eye to the new law, coming up with new “trick”. There is the summary of the major violations:

 

I.       All sorts of peculiar labour contracts

1.      English contract

Some employers translate the labour contracts into English, knowing that ordinary workers could not read English. Example, Mr. Yu, works at a foreign-invested toy factory, says “in the process of signing the labour contract, most workers didn’t know the English contents, so at first, we all refused to sign. Later, the management forced us to sign it, they said the contract was for one year (the real term is for two years) and we could quit the jobs whenever we want to. So most of the workers signed it, but I didn’t because I couldn’t read it.”

 

2.      Two contracts at a time

Mr. Pan, a skilled electrician in a Hong Kong-invested enterprise, reveals, “The basic monthly wages at the factory is set at 1,500 Yuan. However, the factory required me to sign two identical contracts, each of them saying our basic wages is at 750Yuan per month, so in total, it is the same 1,500 Yuan. Other technical workers also had to sign two contracts.” To divide the 1,500 Yuan wages into two separate contracts and using only one of them as an official contract, the factory calculates the overtime wages at a half-rate and saves a significant social security premium. After the launch of Labour Contract Law, enterprises tend to use this “trick” to reduce the overtime payment for workers.

 

3.      6 six-day a week, each day 6.7 hours

“According to your contract, how many hours do you work per day?”, workers usually answer this question with dissatisfaction, “the legal standard is set at 5 day and 8 hour a day. However, the enterprises divide 40 hours into 6 six days, each day our shift lasts 6.7 hours. In this case, we don’t get overtime payment for the 6.7 hours we work on Saturdays.” Such a practice shows that some enterprises try to interpret the law for their own interest, to avoid paying overtimes wages, which most workers work extremely hard to get it.

 

4.      Incomplete or even blank contracts

From the survey, 3.8% of the contracts do not provide the location of employment, 10.6% do not state a clear job description, some workers report that they were offered to sign a blank paper and 5.9% of the contracts are blank contracts. It is rather risky for workers to sign blank or incomplete contracts.

Some employers even covered the content of the contracts, only showing the signature areas to workers to sign. Mr. Sun from a plastic factory said, “the company covered the contents of the contracts and asked us to just sign. At first, we all refused to sign as we found it unreasonable. However a week later, the management said those who refused to sign would have an one-month wages deduction, so we were then forced to sign.”

 

5.      Two different stamps on the labour contracts

In our in-depth interview, Mr. Li, 28 years old, said, “since January 2008, our factory gave us contracts to sign, they even agree to give us un-limited timeframe contracts. But we saw the stamps of two different legal entities on the contracts, so we all refused to sign. The factory put out a notice, saying that workers who refused to sign contracts by 31 January would need to take unpaid leave. The factory later threatened the workers that they would be dismissed without compensation if they didn’t sign contracts. At the end, most of the workers other than 23 them signed the contracts”

 

It is rather common for a company to register several subsidiary-companies under it. When one subsidiary committed any violation and workers take it to court, the parent-company would unregistered the company in questioned and transfer the other workers to another subsidiary. The behaviour of Li’s factory, to have two different stamps on the contracts, may suggest something suspicious.

 

II.    Abuse and manipulate the factory regulations

1.   Price hikes on meals and dormitory

The survey shows that 22.2% of workers suffered from an increase in the price for food and accommodation. Ms Yang from a toy factory said angrily, “our food charges have gone up to 250 Yuan a month. We heard that minimum wages has been increased and therefore the employer would charge us more for food and accommodation. But we have less overtime work now but a higher bill on food and penalties. How come our government doesn’t regulate the price on food anymore?”

 

2.   A growing list of penalty items

The survey shows that 22.3% of the workers told that the items of penalty have gone up. 57.2% of the workers said they did not agree with those regulations. Mr. Sun, a some 30-year old puncher at a metal factory said, “our factory regulation says, 50 Yuan fine for a minor mistake, which includes late for work for a minute or verbal argument with supervisors. For major mistakes, like arguing with the manager, the fine goes up to 200 Yuan. The factory often sends us warning letters and each warning letter costs us 50 Yuan. The second warning letter means dismissal…”

 

III.       The Enforcement of the Labour Contract Law is not so Sanguine

1.      Many factories still not offer a contract to workers

General lack of contracts amongst local invested, small factories, 73.4% of workers from the survey said they had signed a contract (though they have all sorts of problems as mentioned above), while 26.6% of workers still work without contracts. 41.9% of local-capital factories and among small-scale factories, i.e. less than 1000 workers, 35.8% of them do not offer contracts to their workers. For larger factories, i.e. with more than 1,000 workers, only 6.1% of them do not sign contract with workers.

 

2.      28% of the contracts with wages lower than legal minimum wages

The survey shows that 28% of the contracts offer monthly wages lower than 750 Yuan, and 51.60% of contracts offer wages between 750 and 1,200 Yuan. Starting from October 2007, the legal minimum wages for outskirt Shenzhen was set at 750 Yuan and it would be increased to 900 Yuan on 1 July 2008. The legal minimum wages is the bottle line for workers to live and factories fail to live up to that standard, how could they talk about workers’ personal development?

 

3.      Falsehoods between the contracts and reality

When we asked the workers “are there any falsehoods between the contracts and the reality at workplace?”, a majority of them, 63.83% said their work hours are different from the contracts, 4.26% said they work in a different location than stated on the contract, 3.19% revealed there are difference between factory names and other types of differences reach 11.70%.

 

IV.        Calling for better implementation, join hands by all sectors of the society

The survey shows that 79.2% of workers are dissatisfied with the situation in the factories. It shows that the labour contract law needs further and better implementation.

 

1.      Circumvent is never a solution

As a company, deducting workers’ wages and avoiding the overtime payment as a mean to operate, instead of improving their technical level, creativity and management skill, which tends to exploit workers to keep up in competition is not a sustainable move. They would soon either be punished by government or would lose workers, suffer from the so-called labour shortage. Currently it is established to have 740,000 workers short in Shenzhen, which is a warning to the enterprises, telling them that if they want to develop, they would need to be law-abiding and establish a correct direction of development.

 

2.      Calling the workers to get familiar labour legislations

As a worker, aware of their own rights, methods to safeguard themselves could help themselves to combat with their employers, at labour departments, at courts, by clearly telling their demands. It is the only effective way to get the Labour Contract Law fully implemented.

 

3.      Close attention to workers’ rights from all sectors in the society

Workers are the creator of social wealth, as well as the motivity of social development. As a member of this society, we all have responsibility and obligation to pay close attention to labour right and the workers’ condition. If most of the workers cannot enjoy a sustainable life, it definitely will impact on the stable and development if the society. Furthermore, if the worker cannot develop and build up their capacity, it will limited the overall development of the society as well.

 

4.      Calling the Government for strengthen on promotion, monitoring and enforcement

In this research, it clearly showed that large scale of illegal practices is still exist in the labour contracts signed. If we ignored the voice of the workers and only concentrate on the rate of contract signed, it will definitely lead to misapprehend. The workers know about the illegal situations in the factories most clearly. Therefore, the Government should pay more attention to the actual situation of workers and listen to their voice; at the same time, encourage the people’s organization such as the trade union, women federation, and civil groups to display their function on promotion, communication, facilitation and monitoring of Labour Contact Law. Meanwhile, the Government could set up clear incentive payment to encourage the social groups and individuals to report the illegal enterprise.

 

Since the Labour Contract Law came to effective, “tricks” happened frequently in those illegal enterprise, these acts not only undermined the legal right of the workers, but also defied and trampled down the Law. In front of such a rigorous situation, we are calling the workers to get familiar labour legislations; calling for a close attention to workers’ rights from all sectors in the society; and, calling the Government for strengthen on promotion, monitoring and enforcement

 

Please refer to http://www.ngocn.org/?11799 for a full Chinese version of the report.

For any further enquiry or transshipment, please contact Suzanne Wu workerempowerment@gmail.com.

 

Press Release

2008.12.24

Demand for fair and open trialInternational and Hong Kong Civil Community watch the assault on the legal person of Dagongzhe Centre 

Around 15 representatives of international and Hong Kong labour and civil organizations were packed in the Shenzhen Longgang People’s Court for the hearing of Huang Qingnan’s attack case. The attendees showed the full support to the victim and urged for a fair and open trial, severe penalty against the attackers in according to the law.

The labour organization under attacks is called “Dagongzhe Centre (DGZ Centre)”, which registered as “company” in Longgang District of Shenzhen city. With funding from overseas, it provides free library, labour law education and consultation to the migrant workers in the neighbourhood community. On 20 Nov 2007, the legal person of the centre, Huang Qingnan was attacked by two assassinators with knives, at the street behind the centre, when he was on his way for work. His back, waist, left leg were stabbed and left him wounds more than 10 centimetres long. His left leg has the worst cuts. His muscle, bones, blood vessels, and nerves were cut apart. He has recovered with permanent handicapped on his left leg. 

According to the court, the master mind Zhong Wei Qi, one of the five suspects, is a local influential resident who owns several plants and plant premises. According to the Court, he considered that the publicity of Labour Contract Law by DGZ Centre impacting his business negatively. He then retaliated by deploying the attack. 

The court trial has been delayed unusually.

The five suspects have been detained since January 2008 while the trial was not started according to the law. The suspects asked the court many times to reassess Huang Qingnan’s disability. On the other hand, someone was found shooting Huang Qingnan’s daily living without his consent. Two weeks ago, the Shenzhen City Bureau of Justice delivered the statement, “Huang Qingnan’s disability is not qualified for grade 6, we cannot exactly determine his disability a severe one.”  This was to overturn Huang Qingnan’s grade 6 disability which was certified by the Shenzhen City Procuratorate and the Public Security Bureau early 2008. In the same time, Huang Qingnan’s application for employee injury certification was turned down by the Administrative Litigation.

Today, a small court that can only accommodate 16 people was arranged, the court, therefore, rejected the over 50 workers and representative from other civil groups and over 15 people from Hong Kong to sit in. But at the same time, the relative of suspects could enter the court without any obstruction. Huang and the lawyer request to change the court to a large one wit capacity of 100 people, but this request was rejected since the Court have to “ask for instruction from the supervising level”. The court offered two choices: to carry out the hearing while more than 60 people with Huang cannot go inside; or adjourn the trial. Since the court cannot offer a proper arrangement for an open trial, Huang can only chose to adjourn the trial.

Huang told that he was very disappointed and astounded by the rejection to have an open trial, and hope that the court can fix a date for trial as soon as possible, and carry out an open and fair trial that both side can have equal right to sit in the trial.

International community: grave concern on the fair trial and severe penalty according to the law

Asia Monitor and Resources Centre commented, “The case of justice for Huang Qingnan will strongly reflect whether the rule of law in China can protect its working citizens who are just struggling to receive what the law promises. Already 11 months have passed since solving Huang’s case. Such a delay in conducting the trial is unusual. The trial was arranged a few days after the Judicial Bureau of Shenzhen City sent a notice to the court overturn the appraisal result originally released by the Shenzhen Public Security Bureau. It raises a doubt whether some party is trying to influence the judgement. If so, the equity and fairness of the case will definitely suffer from the intervention.”

A spokesperson for the Ethical Trading Initiative, an alliance of companies, unions and NGOs working to improve the lives of workers, commented: “The government’s response to the violence against the Dagongzhe Center and Huang Qingnan will set a tone for the future.  If not resolved properly, this incident could undermine trust in the government and drive workers and employers to more extreme forms of conflict.  ETI sincerely hopes the courts will pursue those responsible for the attacks with justice and that the government will do its utmost to protect Chinese civil society from future violence.  Only by nurturing forms of conflict resolution that preserve a harmonious society will

China build a foundation for long term business growth.” After the incidents, DGZ Centre received enormous supports from international and Hong Kong civil community. Organizations such as Worker Empowerment, Labour Action in China, Asia Monitor and Resources Centre, Globalization Monitor that are running projects in China immediately launched an international appeal to urge the Shenzhen city government for stoppage of any form of violence towards the civil organizations and the staff as it is the basic civil rights enshrined in the laws. More than 70 organizations from different part of the world endorsed the appeal. The Brussels-based International Trade Union Confederation (ITUC) and its affiliates around the world have written to the Chinese authorityto express concern over Huang Qingnan’s attack and the harrassment of independant labour groups in general. Dominique Muller of the ITUC Hong Kong Liaison Office said, “The ITUC has written to Hu Jintao several times on this case and has asked for the appropriate investigation into the case along with the proper penalty for the offenders according to the law. Our concerns have been also conveyed to the local Chinese authorities. We will continue to support Huang Qingnan and all others peacefully working to improve labour rights and core freedoms.” Workers demand Government primary responsibility: labour rights protection in the Shenzhen

Luo, one of Shenzhen workers, sitting in the court for hearing, commented, “the factory employers of Longgang district very often use illegal means to deprive workers of overtime pay and economic (termination) compensation. The Labour Contract Law serves to protect worker’s rights but the employers violated the Law. I was beaten up when asking for back wages. Employers do not respect to the laws nor worker’s rights. Violence is their solution. This is absolutely not acceptable. I wish fair legal proceedings and severe punishment on the attackers as to enforce the respect to workers and the labour laws! ”

By Asia Monitor Resources Centre; Globalisation Monitor; Labour Action in China; Students and Scholars Against Corporate Misbehavior (SACOM); Worker Empowerment

 

Mr. Xu Zhong Heng Mayor of Shenzhen City,

Mr. Liu Yu Pu, Secretary of the Shenzhen Municipal Party Committee

Mr. Deng Lian Ji, President, Shenzhen Intermediate People’s Court

Mr. Bai Xin Chao. Procurator-General, Shenzhen People’s Procuratorate of Shenzhen City Court

 

 

7 November 2008

Stop the Violence— Defend Labour Rights

Lawful and Harsh Sentence to Assailants who attacked Labour Group

November 2007 was the “Black November” for everyone who supports labour rights. The Shenzhen Dagongzhe Migrant Worker Centre (hereafter DGZ Centre) suffered from a series of violent attacks: numerous men forced their way into DGZ Centre, smashed the facility inside and threatened the staff. Later on 20^th November, the legal person (holder) of DGZ Centre, Huang Qingnan, was attacked by two assailants, which caused his left shank to be disabled permanently. As groups that promote labour rights and growth of civil organizations, we strongly condemn these violent, illegal actions against labour groups! On 3^rd December, we submitted a statement endorsed by 76 Hong Kong and International labour groups to the Government of Shenzhen City, during a protest in front of the Liaison Office of the Central People’s Government in Hong Kong, and urgently appealed for an intensive investigation into these violent attacks as soon as possible.

 

Eight months after this horrible attack, five suspects were finally prosecuted and brought to court, hence, we express our deep concern over the inquest. The main suspect, Zhong, is a local entrepreneur and landlord in the area where DGZ Centre is located. According to the information released, he is very influential in the community. Since he was discontented with the effort that DGZ Centre made to promote Labour Law to migrant workers nearby, he blamed the loss of rent on DGZ Centre and hired assailants to attack Huang.

 

The migrant workers in Shenzhen have contributed to the prosperity of the city in the last 20 years; however, they can never enjoy an equal return and status, and have to live in the margin of the society. Some of the unscrupulous factory owners ignore the law and regulation brazenly; tricks included underpayment, non-payment of overtime wages, baleful delay of industrial injury compensation, and even beating workers who attempted to reclaim their rights. However, the labour groups such as DGZ Centre, which strived to promote the laws and regulations tied in with the general policy of the Central Government in China, suffered from these violent attacks. We are indignant about these devilries of the assailants and the one who ordered them to do so behind the scene. Any modern civilized society should have zero tolerance to this evil act. While the Chinese Government is determined to stride towards the international society, we strongly believe that the Shenzhen Government has to disseminate an important message to these criminals: “Society will not patch up the guilt of any ruffian that infracts upon labour rights and civil groups by violent means!” during the hearing of this case.

 

Thus, we demand the Shenzhen authorities, to,

1.          In the case related to the attack against Huang, insure an impartial, open and independent hearing, and to make a reasonable an harsh sentence lawfully, hence to press down the trend of violence in order to safeguard the officers work in civil groups and uphold the justice;

2.          Ensure Huang receive reasonable and sufficient civil compensation as soon as possible, in order to maintain his living.

 

We also hope and expect that the Chinese Government can offer perdurable guarantee to the smooth operation of civil groups such as DGZ Centre, investigate and handle any violent action against workers and civil groups gravely, so that the international society can see her determination and concrete action against violence in the defense of labour rights. At the same time, we also hope and expect that the Chinese Government can extend and build up regular, equal channels to communicate with civil groups, in order to construct a harmonious society.

 

Initiated by: Asia Monitor Resource Centre; Globalisation Monitor; Labour Action China; Students and Scholars Against Corporate Misbehavior (SACOM); Worker Empowerment

Endorsed by:

1.          Noise Co-op

2.          Ziteng

3.          Hong Kong Christian Institute

4.          Neighbourhood & Worker’s Service Centre 

5.          Justice and Peace Commission of the Hong Kong Catholic Diocese

6.          Hong Kong Confederation of Trade Unions

7.           ITUC/GUF/HKCTU/HKTUC Hong Kong Liaison Office

8.          Hong Kong Women Workers’ Association

9.          Catering And Hotels Industries Employees General Union

10.      Clothing Industry, Clerical and Retail Trade Employees General Union

11.      Hong Kong Catholic Institution Staff Association

12.      Cleaning Service Industry Workers Union

13.      Union Of Hong Kong Dockers

14.      Hong Kong Dumper Truck Drivers Association

15.      Concrete Industry Workers Union

16.      The Federation Of Hong Kong Transport Worker Organizations

17.      Ocean Park Employees Union

18.      Construction Site Workers General Union

19.      Industrial Relationships Institutes

20.      Student Christian Movement of Hong Kong

21.      People Demo

22.      Ziteng

23.      Neighbourhood & Worker’s Service Centre

24.      Transport And Logistics Workers Union

25.      Hong Kong Buildings Management And Security Workers General Union

26.      Midnight Blue

27.      League of Social Democrats

28.      Hong Kong Christian Industrial Committee

29.      Association for the Rights of Industrial Accident Victims (Hong Kong)

30.      China Labour Bulletin

31.      Peuples Solidaires (France)

32.      Committee for Asian Women, CAW

33.      Clean Clothes Campaign- Italian

34.      Clean Clothes Campaign International

35.      Transnationals Information Exchange-Asia

36.      Maquila Solidarity Network, MSN (Canada)

37.      Fair Labor Association

38.      National Industrial Workers Union Federation, SPN (Indonesia)

39.      Council of Work- and Environment-Related Patients’ Network of Thailand , WEPT (Thailand)

40.      Northern Labour Network(Thailand)

41.      The Human Right and Development Foundation, HRDF

42.      Independent Federation of Hotel and Allied Unions, FSPM (Indonesia)

43.      Information Labour Centre, LIPS (Indonesia)

44.      Kongres of Indonesia Trade Union Alliance, KASBI

45.      Japan Occupational Safety and Health Resource Centre, JOSHRC

46.      Tokyo Occupational Safety and Health Centre

47.      Kanagawa Occupational Safety and Health Centre

48.      Bangladesh Occupational Safety, Health and Environment Foundation ,OSHE

49.      Labour Health Centre,  South Korea

50.      Coalition for Cambodia Apparel Democratic Workers Union , CCADWU

51.      National Institute of Labor Protection(Vietnam)

52.      The Institute for Occupational Health and Safety Development, IOHSD(Philippines)

53.      Friends of Women Foundation (Thailand)

54.      General Federation of Nepalese Trade Unions, GEFONT

55.      Occupational Health and Safety Center (Indonesia)

56.      Peoples Training and Research Center, PTRC (India)

57.      Taiwan Association for Victims of Occupational Injuries, TAVOI

58.      Won-jin Foundation for occupational diseased (South Korea)

59.      Macao Workers and People’s Spirit Association, MWPSA

60.      Yvonne Liu Suk Han (Hong Kong)

61.      Tam Oi Kwan(Hong Kong)

62.      Debby Chan (Hong Kong)

63.      Frankie Ng (Hong Kong)

64.      Ng koon Kwan (Hong Kong)

65.      Chow Ching (Hong Kong)

66.      Parkson Yeung Kin Bun (Hong Kong)

67.      Ivy Chan (Hong Kong)

68.      Tai Ngai Lung (Hong Kong)

69.      Kevin Lau (Hong Kong)

70.      Benny Chan (Hong Kong)

71.      Li Yiu Kee (Hong Kong)

72.      Yeung Shu Hung (Hong Kong)

73.      Yeung Kwok Hung(Hong Kong)

74.      Chan Chiu Wai(Hong Kong)

75.      Wong Yu Loy(Hong Kong)

76.      Promil Hung(Hong Kong)

77.      Parry Leung(Hong Kong)

78.      Kong Kwai Sang(Hong Kong)

79.      Au Yeung Tung(Hong Kong)

80.      Jess Chan(Hong Kong)

81.      Chan Hau Leung(Hong Kong)

82.      Prissy Leung(Hong Kong)

83.      Ban Lee(Hong Kong)

84.      Billy Hung(Hong Kong)

85.      Chow Sze Chung(Hong Kong)

86.      Leo Yiu(Hong Kong)

87.      So Sheung(Hong Kong)

88.      Li Sai Hung(Hong Kong)

89.      Hung Wai ying (Hong Kong)

90.      Chan Po Ying(Hong Kong)

91.      Chan King Chi (UK)

92.      Anita Chan， Research School of Pacific and Asian Studies， The Australian National University(Australia)

93.      Fergus Alexander (UK)

94.      Chloe Froissart, researcher at the School for Higher Studies in Social Sciences (France)

95.      Jean-Philippe Béja, Research Directo rat CNRS/CERI (France)