2007 Annual Survey of violations of trade union rights - China

Population: 1,308,873,000
Capital: Beijing
ILO Core Conventions Ratified: 100 – 111 – 138 – 182

Once again, many workers found themselves detained or arrested, charged and imprisoned for their involvement in collective protest action during the year in the People's Republic of China, where trade union rights are not respected. Workers are prevented by law from organising outside the All-China Federation of Trade Unions (ACFTU), which is bound by its constitution to accept the leadership of the Chinese Communist Party (CCP). The Trade Union Law bans workers from organising independently.

Trade union rights in law

No freedom of association: China's Trade Union Law was adopted in 1950. It was amended in 1992 and again in October 2001. Workers are not free to form or join the trade unions of their choice. Only one "workers'" organisation is recognised in law, the All China Federation of Trade Unions (ACFTU).

According to the revised version of the law, "the ACFTU and all organisations under it represent the interests of the workers and safeguard their legitimate rights". Trade unions must also "observe and safeguard the Constitution (...), take economic development as the central task, uphold the socialist road, the people's democratic dictatorship, leadership by the Communist Party of China, and Marxist-Leninism, Mao Zedong Thought and Deng Xiaoping Theory (...) and conduct their work independently in accordance with the Constitution of trade unions".

Among their basic duties and functions, trade unions shall "coordinate labour relations through consultation", "mobilise workers to strive to fulfil their tasks in production" and "educate them in the ideological, ethical, professional, scientific, cultural and other areas, as well as self-discipline and moral integrity". The law also gives trade unions ample prerogatives in various areas such as "democratic management and supervision" (see below).

Trade union monopoly: Article 10 of the law establishes the ACFTU as the "unified national organisation". Under Article 11, the establishment of any trade union organisation, whether local, national or industrial, "shall be submitted to the trade union organisation at the next higher level for approval". Trade union organisations at a higher level "shall exercise leadership" over those at lower level. The law also empowers the ACFTU to exercise financial control over all its constituents.

Collective bargaining: There is currently no law governing collective bargaining procedures, only regulations on collective contracts (CC). However, if a collective contract is established in line with the regulations, it is legally binding. The 1992 Trade Union Law first authorised unions at the enterprise level to conclude collective contracts and the Labor Law (effective 1995) developed the system by adopting collective consultation as a key medium for settling disputes between employers and workers, with the government pushing the ACFTU to "consult" with employers on labour terms for workers as a way of pre-empting independent efforts at negotiations. Article 33 of the Labour Law states that workers have the right to conclude a collective contract "in an enterprise where the trade union has not yet been set up". The amended Trade Union Law of 2001 again strengthened the union's mandate in collective wage negotiations as do regulations issued in 2000 and 2001.

In May 2004, the Provisions on Collective Contracts issued by the Ministry of Labour and Social Security came into force which builds upon the previous regulations issued in 2000 and 2001. They call for more detail in the collective contracts signed. The regulations also outline the procedures involved in the consultation and the theoretical equality of both parties. However despite greater opportunities for collective bargaining and the obvious need for protection for workers – including migrants – there has been little progress towards any form of genuine collective bargaining. Instead the ACFTU continues to "represent" the workers to management and government structures, without seeing the need to discuss, inform, listen to or be guided by the workers who still have little say in policy. In the private sector, where branches of the ACFTU are largely inexistent, workers denied the ability to organise independently face almost insurmountable obstacles to collective bargaining and representation.

A 2004 government "white paper" on employment encourages the ACFTU to conclude "collective contracts" in order to protect workers' rights, and the labour law permits collective consultation and contracts to be concluded between the ACFTU (or workers representatives) and the management. According to official statistics, collective contracts cover some 100 million workers with around 80,000 sectoral contracts for 33 million workers while 61.7 million workers have contracts with their individual employers.

However the majority of contracts appear to be formulaic repetitions of articles from the Chinese labour law and many elaborate upon too few areas of concern to be of much use to workers.

New Draft Labour Contract Law: One of the most significant legislative initiatives in 2006 was the Draft labour contract law, which was first discussed at the 19th meeting of the NPC and published online in March 2006. The draft is significant for several reasons. Firstly because of the unprecedented level of public debate and consultation – according to reports the draft received some 200,000 online comments. Secondly the draft law addresses some of the crucial failings of the current labour law and provides specific penalties and remedies for failing to observe labour laws and regulations. It seeks to clarify the nature of a labour relationship between workers and employers – including those many instances where workers have no formal contract. It includes penalties for companies which fail to provide proper written contracts, penalties for breaking contract terms. Significantly, it also attempts to legislate on the fast growing use of contract labour. The law also appears to bolster the role of trade unions in discussions on redundancies and other major changes.

The first draft has been very publicly criticised by European and American business associations which in turn has led to major debate over the stated commitment of western businesses to Chinese law. In the Netherlands, for instance, the President of the ITUC-affiliated FNV personally challenged several Dutch multinationals investing in China over their position about the draft Law. When the debate surfaced in the press, some multinationals called journalists, demanding to know their sources for articles about their companies' reaction to the draft Law. The multinational concerned have never disassociated themselves publicly from the lobby of the European Chamber of Commerce. The second draft was published in December 2006. Certain aspects relating to the role of the trade union have been reduced as have some of the penalties for companies. However the law remains a significant step forward in the protection of labour rights. As with most legislation in China the most crucial issue is the implementation of the law. A final version was expected to be issued in the spring of 2007.

Right to strike not protected under the law: The right to strike was removed from China's Constitution in 1982, on the grounds that the political system in place had "eradicated problems between the proletariat and enterprise owners". Despite expectations that the revised Trade Union Law would include the right to strike, the revised law skirts around the issue by stating (Article 27): "In case of a work-stoppage or a go-slow in an enterprise, the trade union shall represent staff and workers in consultation with the enterprise, institution or relevant party, and shall reflect the opinions and demands of staff and workers as well as raise solutions. The enterprise or institution shall strive for a settlement with the reasonable demands made by the staff and workers". Article 27 does not employ the term "strike"(bagong), but instead refers to instances of "work-stoppage" (tinggong) and "go-slows" (daigong). There are increasing calls within China for legislation of the right to strike and continued academic debate on the issue. In reality the number of strikes (both spontaneous and planned – but always without the official recognition of the union if there is one) is increasing. In the past few years there have been a number of successful and sustained strikes involving large numbers of workers. One example is the strike in Xianyang (Shaanxi province) which is remarkable both for its length and the size of its participants. On 14 September 2004, some 6,800 mainly female SOE textile workers began a seven-week protest over restructuring requirements cutting contracts, ages and pension and medical benefits. Despite several attempts at intimidation by large numbers of police the women eventually began to take steps to set up their own union. However the local ACFTU branche, in a pre-emptive move to forestall any genuine workers' union, established a trade union organising committee which meant that the workers had to desist from organising their own committee. On 24 October, several hundred staged a railway blockade on the Longhai Route and were confronted with riot police. They were dispersed and in the following days 20 workers were detained and arrested. Although the strike was ended by force, the workers did win several substantial concessions. In addition, despite the length and scale of the strike all alleged "ringleaders" detained were later released – five were tried but received suspended sentences – surprisingly light punishment.

In 2006, Chinese media reported in detail about a series of strikes concluded successfully the previous year in the Dalian Economic Development Zone. On 27 July 2005, some 500 workers at Toshiba's Dalian plant went on strike to protest against a sudden increase in work intensity: after the local labour department had forced the company to respect legal limits on overtime, workers were ordered to increase productivity by 40 per cent. In view of their work overload, they went on strike, demanding a pay rise, which was eventually granted. As the news spread throughout the zone, some 6,000 workers in the Canon factory also launched a strike, on 9 September, demanding a pay rise and the abolition of a factory regulation under which women were automatically dismissed when they reached the age of 23. Although they had intervened positively in the Toshiba case, the Dalian ACFTU branch and City Development Zone Committee refused to support the Canon workers and told them their strike was "illegal". Three days later some 30,000 workers from another dozen factories joined the strike in support of the Canon workers. Worrying the strike would continue till 18 September, a historical date when the Sino-Japanese war broke out in 1931, the Japanese management and local Labour Bureau officials entered into negotiations with the workers. Since the latter were afraid of victimisation, the government had to itself designate workers' representatives to negotiate with the management. On 14 September, Canon agreed to increase wages by 103 Yuan per month, but refused to address the issue of women's automatic dismissal. The other factories hit by the strike agreed to pay rise of about 100 Yuan. Surprisingly, no detentions of workers have been reported in this series of strikes.

Health and safety – stoppages allowed: Articles 46 and 47 of the new Work Safety Law, promulgated in November 2003, state that workers who encounter a situation at work that directly endangers their personal safety have the right to refuse orders which violate health and safety rules, and the right to stop work and leave the workplace. The Chinese labour law (article 56) contains similar provisions. The Trade Union Law (article 24) is far weaker and states that when a trade union finds that workers have been directed to work in unsafe conditions then the union "has the right to put forward proposals for a solution".

Dispute resolution: In the last decade, the government has made considerable efforts to create a dispute resolution system that involves three stages: mediation, arbitration and the courts. The Labour Law assigns trade unions the roles of chairing enterprise-based "labour dispute mediation committees" and of participating as a member in tripartite "labour dispute arbitration committees" (LDAC), the latter being chaired by the local labour bureau.

An increasing number of labour disputes end up in the law courts. This is because the LDACs are overwhelmed and their decisions often ignored by employers; the courts are seen as a better bet by workers taking legal action. Much of this is due to the under-resourcing of the LDACs and the labour bureaus, the unprofessional behaviour of LDAC personnel, the fact that many cases are refused or obstructed for the reasons given above and to the fact that employers take court decisions more seriously.

According to official statistics a total of around 314,000 labour disputes were submitted to the mediation and arbitration committees in 2005 – ten times the number in 1995. The number of workers was estimated to be 740,000 in 2005. The major causes for the disputes were wage arrears, benefits, and social insurance issues while around 18 percent arose from conflicts over the termination of labour contracts. In 2006 the Shenzhen authorities for the first time in China arrested and charged eight company managers with the crime of intentionally withholding wages (some 7m million Yuan to 1,200 workers). Xinhua has also stated that the criminal law may be revised to include criminal penalties for employers who delay payments or run away.

There is an ongoing year-on-year increase in collective cases being brought to court or to arbitration, especially those of migrant workers. This has implications for labour dispute settlement, as well as migrants' growing consciousness of their rights – migrants are emerging as a more powerful bloc in society. One 2005 study showed that the number of collective labour disputes nationwide increased more than five times, from 1,482 in 1994 to 11,000 in 2003 and almost double that in 2004 to around 20,000.

A report by the ACFTU showed that in 2006 there were some 300,000 lawsuits against employers filed by workers reaching the courts – a reported rise of over 20 percent from 2005. Over half of these cases were resolved in favour of the employees but in practice many court decisions are not implemented and the compensation awarded to the workers is never paid. In part response to this in August 2006, a Supreme People's Court circular was issued directing courts to ensure that lawsuits filed by migrant workers over unpaid wages are dealt with and enforced in a timely manner.

Crackdown on legal aid groups for workers: The past few years have seen a year on year increase in the number of workers using the courts as way of achieving redress for unpaid wages, missing benefits or other issues. It seems that the government is quite concerned about this trend and 2006 saw an ongoing crackdown on lawyers involved in defending labour rights cases and related lawsuits like those involving farmers (some of these detainees are mentioned here in the Annual Survey for the first time due to their involvement in defending labour rights). Throughout 2006 and especially in the latter half of the year there was a concentrated clamp down on the NGO sector and in particular in labour rights groups. Many mainland groups established to support workers provide legal aid for workers or offer training found themselves the object of intensified official scrutiny, investigation, monitoring and harassment. The Shenzhen Migrant Workers' Association was established in 2004 and provided legal advice for workers It was forcibly closed in November 2006 for technical issues over registration. It is believed that the closure of the group was because of its signature campaign which called upon the government to scrap fees for handling labour dispute cases which deterred many workers from taking cases to the arbitration authorities. Other labour groups and lawyers reported numerous official investigations, harassment and warnings and many were forced to operate extremely quietly in the last six months of the year.

International obligations: China has ratified neither of the two fundamental ILO Conventions on freedom of association, the right to organise and to bargain collectively (ILO Conventions No. 87 and No. 98). In February 2001, it ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), but announced at the same time that provisions guaranteed under Article 8,1 (a) of the Covenant, namely the right to establish and join workers' organisations of one's own choosing, would be dealt with in accordance with Chinese law. In doing so, the government effectively entered a reservation concerning a fundamental element of the Covenant, thereby putting itself in breach of internationally recognised principles on the law of treaties. It did not, however, enter any such reservation concerning Article 8, 1 (d) of the covenant which, alone amongst international legal instruments, explicitly guarantees the right to strike.

In April and May 2005, the United Nations Committee on Economic, Social and Cultural Rights, which monitors State parties' compliance with the ICESCR, examined the first report submitted to it by China following its ratification of the Covenant. In its "Concluding Observations", the Committee "regretted" China's "prohibition of the right to organise and join independent trade unions". It also "urged" China "to amend the Trade Union Act to allow workers to form independent trade unions outside the structure of the All China Federation of Trade Unions. Further, the Committee strongly urge[d] the State party to consider withdrawing its declaration on article 8, paragraph 1, of the Covenant." These issues had been strongly underscored in comments presented to the Committee by the ICFTU.

In early 2006 it was officially announced that the Standing Committee of the National People's Congress, China's top legislature, ratified ILO Convention 111 concerning Discrimination in Respect of Employment and Occupation.

Trade union rights in practice

All attempts to establish independent trade unions repressed: No independent trade unions are allowed to exist, and all attempts at establishing independent workers' organisations are repressed, sometimes violently. According to informal statements there exist two forms of illegal trade unions in China; one where workers are unaware of the need to register with the ACFTU and the other where "hostile forces" incite workers to set up unions to overthrow the system. The former are educated and assimilated into the ACFTU while the latter are cracked down upon. Organisers of worker groups or protests are often arrested. Some are sentenced to terms of imprisonment (officially called "reform through labour", or "lao gai") after criminal trials which fall well short of international standards. Others can be assigned to terms of "re-education through labour" ("lao jiao", sometimes called "rehabilitation through labour"), an administrative process which bypasses the few safeguards of the criminal justice system. The result of such repressive measures is that examples of independent unions are rare and short lived. Organisers of collective actions operate at great risk. The fear of detention also makes negotiations between workers' representatives and the authorities and employers extremely difficult. However, there has been a marked trend of worker organisers being prepared to take this risk, and a rise in collective action generally. The authorities continue to employ tactics of trying to answer some of the workers demands in a major collective protest while at the same time dealing harshly with a small number of alleged ringleaders.

Role of the ACFTU and new developments: The ACFTU has a monopoly over union organisation – one which it and the government strictly enforce. The ACFTU is seen in the same light as other government/party branches and according to unofficial sources the wages for entering the ACFTU as opposed to joining another branch of government at graduate entry level have been increased in order to attract new graduates. The ACFTU has the unenviable position of being asked to assist the government in the primary task of ensuring social stability during the economic changes in Chinese industry, while on the other hand being urged to represent the demands of workers to ensure that obvious problems and inequalities emerging in the new "socialist market economy" do not lead to an independent worker movement. As a result, it actively calls on employers to follow the labour law, while at the same time urging workers to better equip themselves with knowledge of the law. It generally argues that to pursue what it regards as a "foreign" type of trade unionism would threaten the government's policy of putting "development first". It quietly promotes the view that instability on the shop floor would threaten "social stability" and produce "chaos", usually with a reference to the Cultural Revolution, the collapse of social order in the former Soviet Union and what it sees as negative developments in Indonesia, in reference to the multiplicity of trade union organisations in that country after the fall of the Suharto regime. Increasingly the authorities are referring to the need to ensure that political aspirations for democracy and worker-led initiatives are kept in check in order to avoid a "colour revolution" similar to the events which took place in Ukraine at the end of 2004 and in early 2005. In recent membership drives targeting foreign-owned companies the ACFTU has been keen to stress its essential differences with "western" unions. For example the Guangdong Federation of Trade Unions Chair was quoted as saying that Chinese unions "don't protect rights for the sake of protecting rights but rather mobilise the initiative of workers to promote the development of enterprises".

The newest Chairperson of the ACFTU, Wang Zhaoguo, is also a member of the Communist Party's Politburo and a former Governor of Fujian province. There has been no indication that Wang, appointed in 2003, has departed from the ACFTU's traditional role of maintaining political and economic stability in favour of representing its members. The organisation remains firmly under the leadership of the Party, the interests of which always take priority.

There is little doubt however that the organisation is under huge pressure to meet the government's target of avoiding a repeat of the large-scale collective action that took place in northeast China during the spring of 2002 and to help stem the increasing rise of "mass protests". Several new policies were decided at the 14th Congress in 2003, including direct trade union elections of enterprise-level branch Chairpersons and the opening of the union to migrant workers, whose formal status as farmers previously excluded them. According to the ACFTU, about 29.5 million migrants had joined by July 2006, although these figures and the active involvement of the migrants are questioned. However, welcome though these initiatives were, there have been no signs of the organisation making even token efforts to distance itself from its constitutional acceptance of Party leadership. It remains a tool of government policy.

Throughout 2006, the central and local government's issued regular statements calling for support for the ACFTU and for the role of unions in the development of a "harmonious society" to be amplified. This forms part of the campaign by the ACFTU and backed up by central authorities to make ACFTU's work more relevant to current industrial relations, for workers and employers alike. At the start of 2006, in a well publicised press conference, the ACFTU announced its work-plan for 2006 which contained four main areas of work namely to improve the quality of the workforce; to improve the ACFTU's work in protecting workers' rights; to enhance union-organising in private enterprises and to promote the rights of migrant workers.

The need for the ACFTU to achieve a far greater level of unionisation in private enterprise and in particular in transnational companies and foreign owned corporations was emphasised throughout the year. In March 2006, China's President Hu Jintao reportedly issued instructions on a policy document – "A Situation Analysis on the Factors of Instability in Foreign-invested Enterprises in China's Coastal Area, and Some Proposed Countermeasures". Hu Jintao was alleged to have ordered the ACFTU to specifically do "a better job of building Party organisations and trade unions in foreign-invested enterprises." Following this, the ACFTU instructed its staff to study Hu Jintao's comments, and then set the target of unionising over 60 percent of foreign invested enterprises by the end of 2006. The target was subsequently raised to 80 percent for 2007.

In the light of an ongoing public wrangle over unionising foreign companies, the ACFTU appeared to begin its drive with Wal-Mart and began to establish unions there in the summer of 2006. On 29 July, the first Wal-Mart union was established and by the end of the year it was claimed that all Wal-Mart 68 branches had been unionised. New ACFTU branches have also been established in firms such as Carrefour, McDonalds, Motorola, Kentucky Fried Chicken, Samsung and Nestle. Other multinationals such as Dell and Eastman Kodak were publicly quoted as being the next targets. Later in the year it was also announced that communist party committees had also been set up at Wal-Mart branches – an example of the parallel lines the ACFTU and the party follow.

Support for workers' grievances: Where detailed reports of social unrest are available, workers generally dismiss the official trade union as unhelpful or ineffective at best. At local level, ACFTU officials usually either deny any knowledge of independent workers' action, or hint that their dual function as upholders of Party and government, and representatives of the working class, renders them unable to defend workers' interests in the face of massive restructuring in the state sector and investor-friendly environments in the private sector. While claiming that its key concern is the welfare and protection of the millions of workers who have been dismissed in this restructuring process, the ACFTU appears to be helpless in negotiating, let alone enforcing, any social safety provisions that may have been obtained. The privatisation of state, or other collectively-owned assets, frequently goes hand in hand with the corruption of local and regional government officials, over whom the ACFTU appears to have no influence. It should be noted, however, that, while major labour unrest is generally not reported inside China, smaller collective actions increasingly are, thanks chiefly to the initiatives of workers and courage of individual journalists and editors.

The ACFTU also appears unwilling or unable to support workers in the private sector. Despite migrant workers being admitted into the ACFTU for the first time in 2003 and well publicised campaigns welcoming migrants into the fold, the ACFTU is almost non existent in the majority of disputes and collective actions in the major manufacturing zones where the majority of private business is located. The ACFTU has however been very vocal and high profile in its 2005 and 2006 efforts to claim back missing wages for migrant workers which are a major source of discontent for migrants. In 2006, it announced that it had helped chase unpaid salaries for 2.8 million migrants – the migrant population of China is estimated to be around 115 million.

Elections: Although the Trade Union Law states clearly that trade union officers at each level should be elected, this is usually ignored and most officials are appointed. Many provinces are now developing regulations on union elections. Elected candidates are subject to approval by the provincial-level ACFTU committees. The majority of workers, if aware of the existence of a branch union, have little idea if their chairperson has been elected or not. In many cases workers, are simply unaware that they have a trade union.

Many provinces have developed – or are in the process of developing – regulations which guide the obligation to hold trade union elections stipulated in Article 9 of the Trade Union Law: "Trade union committees at various levels shall be democratically elected at members' assemblies or members' congresses. No close relatives of the chief members of an enterprise may be candidates for members of the basic-level trade union committee of the enterprise." A few of the elections taking place in workplaces are not confined to electing the chairperson of a workplace union branch, but concern the full membership of the union committee as well.

Membership: According to "China Daily", at the end of 2005 (the latest figures available), the ACFTU had some 1.17 million grass roots unions and around 151 million members – a sharp increase from the 90 million it claimed in 1998/99 and even the 134 million for 2003. The ACFTU Chairperson stated on 5 July 2006 that membership had reached 150 million, with more than 1,174,000 basic level unions. Other sources state that the ACFTU has seen an "unprecedented" six percent rise in membership in the first six months of 2006 with 160.32 million members, including some 2.58 million new members working with foreign companies. However, it should be noted that the recruitment campaign launched in 1998 which sees annual targets for new membership issued each year (see above) has essentially been a campaign for paper unions. The legal procedure for registering a union office in an enterprise can be completed without trade union officials even entering the workplace, and branches can be set up in some enterprises simply by carrying out administrative procedures.

Under the current Trade Union Law, (Article 10), a basic-level trade union committee shall be set up in an enterprise, an institution or a government department with a membership of 25 or more; where the membership is less than 25, a basic-level trade union committee may be separately set up, or a basic-level trade union committee may be set up jointly by the members in two or more work units, or an organiser may be elected, to organise the members in various activities." This is vague but essentially leaves it up to the workers to establish a union and does not require all units to automatically establish a union. For several years some companies – most publicly Wal-Mart – have stated that they are not stopping unions from existing but that simply the workers have not yet expressed the wish to establish one. To counter this argument in July 2006 ACFTU Chair, Wang Zhaoguo, also publicly proposed an amendment to the Trade Union Law that would require foreign enterprises to establish ACFTU-affiliated branches – as of now the establishment of unions depends on the "will" of the workers.

Disputes: Collective disputes are defined as involving three or more people. The overwhelming majority are small-scale incidents – an average of 38 people in 2003 – that are mostly settled via mediation at enterprise-level, arbitration or the courts, with the latter channel becoming increasingly popular with workers in large cities, as seen above. Workers feel they will get a fairer hearing in court than at arbitration committees, despite the lengthy processing time and low success rates. On average, half of the judgments and arbitrations or more are found in workers' favour although serious problems remain over the timely enforcement of court decisions in favour of workers (see above).

While the Labour Law, Trade Union Law and Occupational Safety and Health Law make mention of "work-stoppages", workers who put these vaguely-worded provisions to the test are likely to face a host of problems. They are usually picked up by the police and warned about public order offences, traffic violations, breaking the law on parades and demonstrations, or much more serious political charges. Strike organisers and independent labour activists also face the threat of re-education through labour (RTL), a form of administrative detention. Though in principle limited to three years, in practice, these periods of forced labour can be extended at the authorities' will, as has been proven in many cases.

Collective bargaining remains ineffective: Collective bargaining remains severely handicapped by the non-existence of truly independent organisations on either side. Almost all contracts are drawn up by employers and simply reflect minimum legal requirements or the continuation of past practice – though privatisation makes the latter increasingly rare. The subordinate position of the ACFTU to the government and the Party means that it will often work with the employer in drawing up collective agreements which simply mirror – at least on paper – the labour law. There is very little actual bargaining and in fact the Chinese term employed is "collective consultation" rather than "collective bargaining". Very often workers are offered no formal contract at all, especially migrants in export processing zones (EPZs). If they do sign a contract, they are rarely given a copy. ACFTU officials have been quoted as opposing wage increases in order to avoid triggering demands for similar deals.

Tripartism: Tripartite consultative bodies are rapidly being established throughout China as a means to ensure industrial peace and a way of tackling disputes that are not resolved through the formal disputes settling procedures. However, the presupposition of tripartite consultation – the independent representation of the interests of the three parties – is absent in China and the subordination of trade unions and whatever employers' organisations exist to the Party is clearly in gross violation of what the ILO regards as the most fundamental precondition for real social dialogue. Against the background of such fundamental limitations, an ILO mission examining tripartite consultation in China, while pessimistic about the future development of genuine bargaining within the current political arrangements in China, nevertheless reported that "in all our interviews with trade union and employer representatives at municipal and national levels, we found a clear commitment to developing the capacity of their respective organisations as independent representatives, able to articulate the interests, aspirations and grievances of their members within the system of social dialogue."

Worker protests – numbers, forms and causes: While it remains difficult, if not impossible, to estimate the total number of worker protests in China due to media censorship and continuing secrecy regarding statistics, is clear that the trend of increasing protests has continued throughout 2004. In addition to regular collective protests against non-payment of wages, fake and genuine bankruptcies and corruption involved in the privatisation of state-owned industrial assets, there has also been a rise in individual protests. Some media reports have concentrated on workers who have jumped or threatened to jump off buildings to claim unpaid wages. This is a tactic of some workers, aimed at attracting attention, either through physical harm or risk thereof, or through arrest. Hardly ever do people actually jump. The workers who have developed this tactic are almost exclusively migrant workers. In July 2006, a 53-year old migrant worker set himself on fire on Tiananmen Square over unpaid wages. According to one group the man was in a serious condition but the event was played down in the local media. An unemployed miner in Guangdong Province blew himself up at a local police station on 13 July after pleading with officers to help him obtain unpaid wages. Police identified the miner as Liu Yingqiu, a native of Hunan Province who had worked for an illegal mine in Guangdong's Wenguan City. The explosion damaged the police station, but no other casualties were reported.

In early 2006, the PRC Ministry of Public Security announced that more than 87,000 "mass social disturbances" had occurred in 2005, up 6 per cent from 2004 and 50 per cent from 2003. More than 3.7 million people were involved in such incidents in 2004. Many mass disputes were about land seizures in rural areas, about half of which are labour-related. However low and missing back wages were the main causes of mass labour disputes which, according to Chinese academics, rose from 1,482 in 1994 to 11,000 in 2003. During the first half of 2002, there were 280 mass labour incidents of 100 workers or more, a 53 per cent rise on the previous year. The number of strikes also appears to be increasing. One report states that there were over 1,000 strikes involving factories with more than 100 workers in 2005 in Guangdong Province alone. According to an ACFTU scholar, 60 per cent of protests are work-related and their number is increasing by 30 per cent per year.

Violations in 2006

Background: Privatisation continues to be a major cause of labour unrest and is plagued by massive corruption. Many workers have been affected by the embezzlement and misappropriation of factory assets and funds set aside for redundancy and other benefits during state-owned enterprises' (SOE) restructuring. Many of the larger protests in 2006 can be traced back to the issue of corruption, the non-payment of earmarked funds for workers, and the widespread flouting of local or national regulations on pensions, health care and redundancy. Missing wages and increasingly low wages form the other main part of protests in 2006.

Restrictions on worker rights and the role of the ACFTU are partly driven by the government's fear of losing control of its decentralised organs, but also fear that such rights may lead to an erosion of its low wage advantage for investors. For example, in August 2005, at the same time as discussing the ratification of ILO Convention 111, the NPC Standing Committee also passed a revised Security Administration Punishment Law outlining administrative penalties for public order offences. This regulation includes detention for the new offences of "instigating" and "masterminding" illegal public demonstrations, thus bringing a further sanction down on potential labour disputes and the workers involved in them. The current clampdown on labour rights NGOs and a renewed media clampdown in 2006 can be seen in the same light and runs in parallel to the governments campaign for social inclusion in a "harmonious society".

International Solidarity:

Chronological List:

April: Some 3,000 workers from a Hong Kong-owned furniture factory in Shenzhen staged a protest on 3 April against long working hours and poor working conditions. The demonstration was dispersed by hundreds of riot police. The workers at the Ruifeng Timber claimed they worked 12 hours a day including three hours of "voluntary overtime work" – but were refused overtime pay. They had two days off a month contrary to the legal requirement of four and were required to obtain permits to go to the bathroom or drink water otherwise they could be fined up to 20 Yuan. Workers claimed that they had previously been beaten by the factory's security guards when they had tried to air their grievances.

According to a mainland paper, on 13 April, three senior executives from a Shenzhen sporting goods factory were detained by police for allegedly "inciting workers to block roads". The three men, included a factory director were accused of supporting the workers in their demonstrations after the factory boss disappeared leaving the workers unpaid.

July: In late June, sub-contracted migrant workers working at the Huaen Building construction site in Beijing stopped work after not receiving missing wages. After two weeks they were promised their wage arrears on 15 July but were still not paid. On 19 July, several of the workers were assaulted by hired men at the site and two were hospitalised as a result. Local police and labour departments then became involved in trying to settle the matter although it has been reported that the Huaen Real Estate Development Company had not paid the contractor who therefore had no funds to pay the workers themselves.

On 22 July workers from the Merton Company Ltd. (a/k/a Hengli Factory) which employs some 10,000 workers in Dongguan, Guangdong Province and which reportedly supplies toys to Disney, McDonalds, Mattel and Hasbro, protested against low wages and poor living conditions. In the evening, factory security and police sent in riot control vehicles and personnel to control the riot but the following day the conflict intensified and some one thousand workers joined the affray with scores injured. Scores of workers were then detained but later believed to be released. One company representative for a supplier was quoted as saying that the disturbance was due to one "disgruntled" employee who was terminated. Conditions at the factory were reported to be extremely poor with most working up to 11 hours a day with overtime of some 70 hours a month in contradiction with Chinese labour law.

August: Two workers in Nanjing were detained by police after allegedly illegally organising workers to protest, according to a local mainland newspaper. On 26 August, 33 migrant workers from an unnamed construction company protested against massive unpaid wages. They then marched towards the local government offices. According to the report, the workers were detained for obstructing traffic and two workers surnamed Liu and Ding were then given periods (unknown) of administrative detention for organising the protest. On the previous day, on 25 August, more than 100 Nanjing workers staged a protest in front of the company in order to petition the government departments for some "employment problems". Without naming the company, the report said the workers' actions blocked the traffic and that police later dispersed the crowd.

In the culmination of a long standing dispute on 31 July and 1 August some 300 unemployed teachers from 20 different towns and townships in Suizhou, Hubei Province gathered in front of the government offices to submit a petition, demanding the government help them obtain livelihood assistance and benefits such as pensions and medical insurance. The protesters were teachers who had been employed in schools in rural areas and are commonly known as minban teachers. The teachers tried using the courts to get a decision on their status, but their legal representative dropped the case after receiving threats. The teacher's representatives reportedly travelled to Beijing numerous times to petition to central authorities as well as trips to the provincial government. Several teachers were forcibly taken to a "study camp" in mid July and were only released after 48 days. They were closely watched by the authorities after their release. In 2004, one of the group's representatives, a man surnamed Zhang, was arrested by the Public Security Bureau, and later sentenced to "reeducation through labour". His current whereabouts remain unknown.

September: In September, in the run up to National Day celebrations, it was reported that a group of workers in Suining City, Sichuan province were beaten after petitioning the local authorities for recompense on their labour dispute with their previous employer. The workers had been formally employed at the Suining Suizhou guesthouse and had been laid off after the state owned guesthouse went bankrupt and its assets were sold at a low price. The workers claimed corruption and were claiming unpaid unemployment benefits. The group of 40 workers was forcibly removed from the local Party Committee offices and two female workers were hospitalized as a result. Two other women were detained while others went into hiding for fear of further arrests. It is not known if all have since been released.

December: On 7 December some 400 workers from the Shenzhen Safari Park in South China went on strike over inadequate compensation, unfair layoffs and unpaid wages during the privatisation of the former state owned zoo. The workers claimed that the company did not pay the proper social security premiums, did not offer the required amount of overtime wages nor fulfil other terms in their contracts. Management who were asked to resign received large payoffs but the ordinary workers claimed they received nothing. According to interviews workers had first complained of the irregularities to the local labour bureau which resulted in some workers being repaid missing social security benefits. However as retaliation some 25 workers were then terminated. After the strike began some 70 police officers entered the park and stopped workers from arranging protest signs. Despite this workers said they would continue their strike until the demands were met.

Laid off protestors from the Industrial and Commercial Bank of China were detained by public security officials in Beijing during a protect march from the headquarters of the ACFTU to the central government offices in Beijing on 15 December 2006. The protestors were part of some 100,000 staff who had been laid off from the bank after restructuring. Many thousands still face financial difficulties and thousands have protested regularly throughout 2006 and 2005. Some 50 protestors were detained in the afternoon and later released and send back to their home towns.

A number of workers at a factory in South China were reportedly fired after refusing to sign written pledges with the company which includes a clause referring workers who break any of the 30 or so articles as "sons of beasts". Some 200 workers have signed the contracts but it is not known how many have been fired.

Long term detainees: Dozens of independent labour activists and leaders jailed in previous years remained in prison in 2006. The following is a partial list. More information about some of these and about earlier cases may be found in previous issues of this survey. They include activists, notably members of the Workers' Autonomous Federations (WAF), arrested in the wake of the Tiananmen Square massacre of 4 June 1989, and the protests that followed. Most of those imprisoned at this time were sentenced to harsh prison terms for crimes such as "counter-revolution" or "hooliganism", neither of which exist in present Chinese criminal law (although they have to a large extent been replaced by charges such as "threatening the security of the State" and "disturbing public order"). Shao Liangshen (Liangchen) was sentenced to death in September 1989 and is now believed to have passed away (see below). Hu Shigen, who helped establish the Free Labour Union of China (FLUC) Preparatory Committee and who was jointly indicted in 1993 with fifteen others, including Liu Jingsheng, on "counter-revolutionary" charges, received a 20 year sentence. He is reported to be suffering from chronic migraines, intestinal illness, malnutrition and a spine problem which could lead to paralysis if not treated. Several leaders and activists detained at the same time as Hu Shigen are believed to remain in detention; Liu Zhihua and Liu Jian, of whom little is known and Kang Yuchun, sentenced to 17 years, seriously ill with heart problems. Zhu Fangming, a worker at the Hengyang City (Hunan Province) Flour Factory and vice Chairman of the Hengyang City Workers Autonomous Federation, allegedly led workers to the municipal Public Security Bureau after 4 June to demand justice and was sentenced in December 1989 by the Hengyang City Intermediate People's Court to life imprisonment on a charge of "hooliganism". In November 2004, Liu Jingsheng, sentenced to 15 years, was released. Peng Shi was also reportedly released in 2004, but there has been no confirmation.

According to one rights group there are some 200 people still in detention for their role in the 1989 protests and subsequent crackdown – the majority of them ordinary workers.

Medical concerns and deaths: In addition to concerns over Hu Shigen, fears were heightened over the deteriorating health of Yao Fuxin and Xiao Yunliang, who were sentenced in May 2003 to four and seven years imprisonment respectively for their part in the mass protests in Liaoyang in March 2002. The health of both men deteriorated during their imprisonment. Prison authorities provided them with little or no medication or other medical care. Despite repeated calls during 2004 and 2005 by their families, the (then) International Confederation of Free Trade Unions (ICFTU – a founding member of the ITUC) and the international trade union movement, and despite the clear legal basis for their release, medical parole was denied to Yao and Xiao. However in February 2006, Xiao Yunliang was released three weeks ahead of completing his sentence. Since his release it is believed that he has been under virtual house arrest and he and his family still face considerable monitoring and harassment. Yao Fuxin reportedly suffered a heart attack in August 2005. The health of their families was also affected and Xiao Yunliang's wife suffered from cerebral thrombosis. The ACFTU failed to provide any response whatsoever to repeated calls by the international union movement that it intervene on their behalf.

Zhang Shanguang, a teacher from Hunan and a veteran independent labour activist and prisoner was sentenced to ten years in 1998 under charges of "threatening the security of the State" after attempting to set up an independent trade union. There have been repeated reports of the ill treatment and torture of Zhang, which increased after he attempted to improve conditions at the Hunan Provincial Prison N°1 where he is detained. He suffers from tuberculosis and heart disease, but is reportedly forced to work in shackles.

Shao Liangchen was a leading member of the Ji'nan Workers' Autonomous Federation in Shandong Province during the May 1989 pro-democracy demonstrations. He was sentenced to death with a two year reprieve and his sentence was subsequently reduced. He was reportedly diagnosed with leukaemia in 2004 and passed away in late 2004, two months after having been released on medical parole.

Psychiatric detention – effective and possible releases: Wang Wanxing and Wang Miaogen, both involved in the Workers' Autonomous Federations (WAF) of 1989 and both incarcerated in psychiatric hospitals for over ten years, are now both believed to be released. After many reports of the ill treatment of Wang Wanxing, including his move to a "secure ward" where he was being held with violent patients, Wang was finally released in August 2005 after 13 years imprisonment and forcible exiled to Germany. Wang Miaogen was presumed released in 2005 but there has been no confirmation. Another labour activist, Pen Yuzhang, a member of the Changsha Workers' Autonomous Federation in 1989, has also been held in a psychiatric institution. Government reports about his release have not been independently confirmed.

Mental illness as a result of imprisonment: Cases have been reported of detained labour activists becoming mentally ill after being severely mistreated in jail or labour camp. One such case is that of Yao Guisheng, another member of the Changsha WAF, responsible for helping WAF leaders to escape arrest in the immediate aftermath of the country-wide repression which followed the Tiananmen Square events. He was sentenced to 15 years' detention in October 1989 on charges of "robbery and assault" (trumped up after an argument with a taxi driver), later changed to "looting". According to former prisoners, he was periodically placed in solitary confinement for refusing to "admit his guilt", was regularly beaten and forced to wear shackles. He became mentally ill as a result. His case was later taken up by the Special Rapporteur on Torture of the UN Commission on Human Rights. In 1994, the government told the Special Rapporteur that Yao had never been ill treated. Yao was due for release in 2004 but there have been no reports of his actual release.

Current cases: In September 2004, Kong Youping and Nin Xianhua were sentenced to 15 years and 12 years imprisonment respectively on charges of attempting to "subvert state power" after reportedly posting articles on the internet which supported the establishment of independent trade unions, freedom of association and the banned China Democracy Party. Other relatively recent cases include Lu Wenbin, a special correspondent for the Textile Daily newspaper, arrested on 22 December 2001 for documenting a strike and interviewing workers at the Huainan Textile Factory in Dafeng.

Yang Jianli is a US-based researcher who participated in the Tiananmen Square pro-democracy movement in 1989; his name was on a 1994 PRC police blacklist of 49 Chinese pro-democracy activists who were barred from re-entering China. Yang Jianli entered China in April 2002 by using a friend's passport, as part of a plan to try and investigate the rapidly growing labour unrest situation in Shenyang City, Liaoyang City and Daqing City in north-eastern China. He was officially arrested by the Beijing State Security Bureau on 28 April 2002 and held in solitary detention for the next 15 months, well beyond the legally permitted maximum period for pre-trial detention. On 13 May 2004, Yang was tried in a closed court hearing on charges of "espionage" and "illegal entry," and was duly pronounced guilty and sentenced to a term of five years' imprisonment.

Hu Mingjun and Wang Sen were leading members of the Sichuan branch of the banned China Democracy Party (CDP). On 18 December 2000, some 1,000 workers from the Dazhou Steel Factory staged a public protest demanding 12 months of unpaid wages. Hu and Wang contacted the demonstrating workers and the CDP then issued a statement in support of the workers. After calling for the establishment of independent trade unions, Hu and Wang were sentenced to 11 and 10 years imprisonment respectively. A third man, Zheng Yongliang, was believed to have been released. Hu Minjun is due for release in May 2012 and Wang Sen in April 2011.

Yue Tianxiang and Guo Xinmin were both drivers at the state-owned Tianshui City Transport Company. In 1995 they were laid off despite being owed three months back pay. When the company refused to negotiate a settlement regarding wage arrears and a legally-entitled living allowance, the two workers decided to take their case to the Tianshui Labour Disputes Arbitration Committee. The Committee's decision stipulated that the company should find new positions for the two as soon as possible, but the manager refused to abide by the decision. When Yue and Guo realised that many fellow workers faced the same treatment, they set up a journal called China Workers Monitor and used it to publish reports of corruption at their former company. They also wrote an open letter to then-President Jiang Zemin and asked for official intervention from Beijing. When they received no answer they sent the same letter to the international media. Within two weeks they were detained by the police and charged with subversion. On 5 July 1999, Yue was sentenced to 10 years' imprisonment and is now due for release in January 2009. Guo's situation was unclear at the time of writing.

In April 1999, Gao Hongming and his friends Xu Yonghai and Zha Jianguo established the China Free Workers Union. Shortly after that, Gao was detained and charged with "incitement to subvert state power" and sentenced to eight years' imprisonment. He is due for release in June 2007. Zha was detained on 29 June 1999 and sentenced to nine years' imprisonment under charges of "incitement to subvert state power".

Other labour activists who remained in detention include Li Bifeng, Zhao Changqing, and He Chaohui. All had tried to protect workers' interests, by protesting, organising or representing workers.

Detention of lawyers and others defending labour rights: Gao Zhisheng, a well known Beijing lawyer who has been active in defending labour rights cases was detained in September 2006 on suspicion of "subversion of state power". It is believed that his arrest comes from his involvement and outspoken views on recent cases including his defence of the blind farmer's activist Chen Guangcheng, his defence of Falungong activists and workers – such as the workers detained after protests at the Stella shoe factories in south China in 2004 and victims of mining accidents. Gao's family is reportedly under house arrest.

In August, Zhao Yan, a journalist with the New York Times was sentenced to three years for reported fraud after he had been involved in reporting on various land related articles and farmer protests. Zhao has been in detention for two years and was acquitted of the heavier charge of leaking state secrets.

Workers' whereabouts unknown: In addition to several detained workers mentioned earlier, the plight of many workers detained during labour protests remains unclear. While it is assumed most are usually released after a few days or weeks in administrative detention, no formal notification is forthcoming. Two female labour activists, Liu Meifeng and Ding Xiulan, were arrested for "disturbing social order" and detained on 20 October 2004. Their case was reported earlier. The two women are now presumed released but no confirmation has been given.

Li Wangyang, a veteran independent trade union activist, was sentenced to ten years' forced labour on 20 September 2001. His sister Li Wangling was sentenced to three years' re-education through labour on 7 June 2001 for helping him to publicise his demands. It is believed that Li Wangyang's sentence is now finished but there has been no confirmation of his release.

Cai Guangye, a doctor employed in a military hospital, was arrested in December 2001 for supporting protesting workers at a chemical company in Jilin and sentenced to three years' re-education through labour in July 2003. Cai was believed to be due for release in December 2004 but there has been no confirmation of his release.

The whereabouts of seven miners from Neijiang City detained following a protest remain unknown. They are: Wang Changchun, Wang Fanghua, Wang Heping, Wang Liguo, Wang Qun, Zhang Jun and Zhu Wanhong. Information on Ni Xiafei and Li Keyou has not been made public and it is assumed they remain in detention.

Workers released in 2006: In April 2006, Lu Decheng entered Canada after fleeing to Thailand in 2004 following his release after serving ten years for his involvement in the events of Tiananmen square in May and June 1989 when he and two others were accused of throwing paint on a portrait of Ma Zedong. Lu was convicted along with Yu Dongyue and Yu Zhijian. Yu Dongyue was released in February 2006. Yu Zhijian was released earlier in 2001 but was detained again in February 2006 for alleged "subversion" for his support for a hunger strike initiated by Gao Zhisheng in support of human rights.

In September a previously unknown factory worker detained during 1989, Zhang Maosheng, was released after serving 17 years in prison for allegedly setting fire to a military vehicle in June 1989.

Du Hongqi was a worker at an SOE undergoing restructuring run by the South China Industries Group. Husband and wife, Du Hongqi and Li Yanying, two of the laid-off workers, had already founded an underground trade union in September 2003 to fight for better working conditions and had organised several petitions and protests. After the mass lay-offs, their union helped to voice the workers' demands for unemployment compensation and aid to find new jobs. The leaders were subsequently apprehended. Du was detained on 24 November and formally arrested on 8 December 2003 under the charge of "assembly to disturb social order". Li was subsequently released. On 18 October 2004, Du was tried and sentenced to three years' imprisonment, and was due for release in October 2006. Du is now believed to have been released.

In addition to the release of Wang Wanxing, Liao Shihua, sentenced in December 1999 to six years' imprisonment after organising a protest by workers of the Changsha Automobile Electrical Equipment Factory was (according to information provided by the Chinese government) released from Chishan Prison at the conclusion of his sentence on 9 June 2005.

According to reports, the writer Yang Tianshui was released on 25 January 2005. Yang was arrested on 24 December 2004 in Hangzhou on charges of "inciting subversion of state power" after his work on the commemoration of 4 June and writings on migrant labour issues.