BILINGUAL COURSE ON LABOR & EMPLOYMENT LAW

1. BILINGUAL COURSE ONLABOR & EMPLOYMENT LAW by Mankui Li LL B, LLM (Labor), LL M (General), PhD Candidate Lecturer, School of Economic Law, SWUPL Visiting Researcher, University of Ottawa, Canada

2. LESSON 1: INTRODUCTION HOW FAR DOES CHINA LAG BEHIND INTERNATIONAL STANDARD? Southwest University of Political Science and Law

3. INTERNATIONAL STANDARD • As for China, international conventions always set up somewhat higher bar. • Chinese government will ratify or not ratify these conventions based on the judgment whether domestic legislation is or can be in conformity with these conventions. • Once ratified, Chinese government will pass certain domestic legislation implementing the requirements set in conventions. Southwest University of Political Science and Law

4. INTERNATIONAL STANDARD • Universal Declaration of Human Rights; (23,24,25) • Two subsequent UN Conventions: • International Covenant on Economic, Social and Cultural Rights; (6,7,8,9)  • International Covenant on Civil and Political Rights; • Fundamental ILO conventions (Core labor standards) • Right of association and collective bargaining (C87, 98) • Abolition of forced labor (C 29, 105) • Abolition of child labor (C 138, 182)  • Equal employment (C 100, 111)  • Other ILO conventions Southwest University of Political Science and Law

5. INTERNATIONAL STANDARD • Chinese government ratified International Covenant on Economic, Social and Cultural Rights; (with reservation on right to organize); • Chinese government submitted its Initial Report on implementation in 2003; • Committee on Economic, Social and Cultural Rights reviewed China’s Initial Report in 34th session, and reached concluding observation: • Complimenting China on seven areas of improvement; • highlighting 28 principal subjects of concern; Southwest University of Political Science and Law

6. LABOR RIGHTS IN CHINA • Labor rights in China can be analyzed on three different levels: • The right to work; • The rights in work: collective • The right to organize; • The right to collective bargaining; • The right to strike • The rights in work: individual • Rights to free choice of employment and equal employment; • Rights to just and equal remuneration; • Rights to have vacation, rest; • Rights to favorable conditions of work; • Rights to vocational training; • Rights to social insurance and other benefits Southwest University of Political Science and Law

7. THE RIGHT TO WORK • Article 23 of Universal Declaration of Human Rights: everyone has the right to work… • Article 6 of International Covenant on Economic, Social and Cultural Rights: member States…recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work … Southwest University of Political Science and Law

8. THE RIGHT TO WORK • Article 42 of Chinese Constitution: Every citizen of P.R.China has the right (and obligation ) to work. • As elsewhere in the world, the government in China has the duty to provide employment to eligible citizens. This is provided by all sorts of domestic legislation. • But it is more complex than you imagine… Southwest University of Political Science and Law

9. THE RIGHT TO WORK • Before 1980s (Opening up and Reform): Dualistic Structure of Chinese Society in terms of employment and social security Southwest University of Political Science and Law

10. THE RIGHT TO WORK Urban area Rural area • Employment promotion • Employment service • Vocational training • Employment insurance • Free land use rights (under public land ownership). • Free land use rights =employment • No unemployment and related benefits Southwest University of Political Science and Law

11. THE RIGHT TO WORK Things has been slightly changed… Migrant Workers Southwest University of Political Science and Law

12. THE RIGHT TO WORK • Number of migrant workers • Year 1990: 15 million; • Year 2003: 98 million; • Year 2008: more than 200 million; • Year 2010-2020: 5.5-6.5 million more each year; • Year 2020-2030: 4-5.5 million more each year; • Changes caused by migrant workers • Government creates employment opportunities for migrant workers; example of global recession; • For those migrant workers who have participated in employment insurance for more than one year, they can get some subsidies upon losing the job; Southwest University of Political Science and Law

13. CONCLUDING OBSERVATIONS • Concluding observation of Committee on Economic, Social and Cultural Rights: • “The Committee notes with deep concern the de facto discrimination against internal migrants in the fields of employment…indirectly result from inter alia, the restrictive national household registration system (hukou)” • “The Committee notes with concern the increasing rate of unemployment in the State party, particularly in rural areas.” Southwest University of Political Science and Law

14. THE RIGHTS IN WORK: COLLECTIVE • Article 8 of International Covenant on Economic, Social and Cultural Rights: The States Parties … undertake to ensure: • The right of everyone to form trade unions and join the trade union of his choice …(reservation) • The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; • The right of trade unions to function freely subject to no limitations other than those prescribed by law …; • The right to strike… • Ratified in 2001, with reservation on right to organize; Southwest University of Political Science and Law

15. THE RIGHTS IN WORK: COLLECTIVE • Convention 87:Freedom of Association and Protection of the Right to Organize Convention, 1948;(Article 2: join…without previous authorization) • Convention 98: Right to Organize and Collective Bargaining Convention, 1949; • Two of the core labor standards listed by ILO. Southwest University of Political Science and Law Core labor standards are a central plank of decent work.

16. RIGHT TO ORGANIZE • China has not ratified these two conventions concerning the right to organize. • Workers in China do have the “right to organize” • Trade Union Law 1992 (newly revised in 2001); • Labor Code 1994; (its Article 7 reads: “”workers have the rights to join and organize trade unions. ) Southwest University of Political Science and Law

17. RIGHT TO ORGANIZE • However, right to organize in China is different… • If there is no trade union within an establishment, the workers can organize one, and only one; • The creation of new trade unions should be approved by the upper level of trade unions. (see next slide) • If there is already one, the workers can only choose to join or not join this trade union; • Trade union funding: employers’ contribution (2% of its total payroll) + membership fee (0.5% of his wages)+government subsidy; • The trade union officials are workers at the same time (part-time officials are exempted from work duty up to 3 days per month; full-time in large enterprise) • Employer should provide office space and other facilities for trade unions Southwest University of Political Science and Law

18. TRADE UNION IN CHINA National Industry-level trade unions Southwest University of Political Science and Law Local industry-level Trade unions

19. TRADE UNION IN CHINA • Employers resist unionization for another reason: they have to pay dues to trade unions! • Generally, it is the employer, not the worker can decide to start a trade union. • Trade unions lack due independence from the employers: funding, facilities, staff; Southwest University of Political Science and Law

20. TRADE UNION IN CHINA • Fortunately, industry-level trade unions are rising… • ACFTU as a quasi-government agency is determined to promote the unionization rate in China, especially among the large transnational companies (Fortune 500: 90% in 2009) • And Walt Mart has been unionized in China! Southwest University of Political Science and Law

21. THE RIGHT TO COLLECTIVE BARGAINING • Labor Code 1994 (including both individual employment contract and collective bargaining agreement); • Labor Contract Law 2007 (including both individual employment contract and collective bargaining agreement); • Plenty of regulations on collective bargaining, especially collective bargaining on wages. Southwest University of Political Science and Law

22. THE RIGHT TO COLLECTIVE BARGAINING • Procedure: • Parties: trade unions + employers, or representative elected by workers if no trade union + employers • Negotiation and enter into an agreement (draft); • The agreement (draft ) has to be approved by the workers’ meeting or workers’ representative meeting; • Then the approved agreement has to send to labor department for scrutiny, and will come into force after 15 days if labor department doesn’t veto it. Southwest University of Political Science and Law

23. THE RIGHT TO COLLECTIVE BARGAINING • Collective bargaining in China focuses on some broad issues, such as, occupational health and safety, working hour, vacation, fringe benefits, etc. • Once collective bargaining agreement comes into force, it’s binding on the employer and all the workers (members and non-members). • Collective bargaining agreement functions as minimum standard for both employer, cannot replace individual employment agreement. • Every worker has to enter into individual employment contract with the employer separately (even there is CBA). Southwest University of Political Science and Law

24. THE RIGHT TO COLLECTIVE BARGAINING • In China, “labor law” not only covers collective bargaining agreement, but also individual employment contract; • Linguistically, the equivalent of “labor law” in Chinese is “labor and employment law” in Canada and U.S. • Linguistically, “employment contract” in Chinese exist when the employer is a natural person, e.g. in case of domestic service; “employment contract” is treated in the same way as contract in civil law, not covered by “labor law”. Southwest University of Political Science and Law

25. THE RIGHT TO STRIKE • Strike is NOT explicitly provided by China’s domestic legislation, though China doesn’t explicitly impose a ban on it. • The issue of strike has been mentioned and discussed quite frequently among legal scholars. • Unfortunately, they tend to mistake any sort of work stoppage as strike. Southwest University of Political Science and Law

26. CONCLUDING OBSERVATIONS • Concluding observation by Committee on Economic, Social and Cultural Rights: • “The Committee regrets the State party’s prohibition of the right to organize and join independent trade unions in the State party.” • The prohibition on the right to strike violates China’s obligation under international convention. Southwest University of Political Science and Law

27. THE RIGHTS IN WORK: INDIVIDUAL • Article 7 of International Covenant on Economic, Social and Cultural Rights: …recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: • Remuneration which provides all workers, as a minimum, with: • Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; • A decent living for themselves and their families in accordance with the provisions of the present Covenant; • Safe and healthy working conditions; • Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; • Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays Southwest University of Political Science and Law

28. RIGHTS IN WORK: INDIVIDUAL • Rights provided in Labor Code in China: • Rights to free choice of employment (no forced labor) • Rights to equal employment (anti-discrimination) • Rights to equal remuneration; • Rights to rest, vacation; • Rights to vocational training; • Rights to favorable conditions of work; • These rights are guaranteed by domestic legislation. In this respect, China is in conformity with its international obligations. Southwest University of Political Science and Law

29. CONCLUDING OBSERVATIONS • Concluding observation of Committee on Economic, Social and Cultural Rights: • “The Committee is deeply concerned about the insufficient implementation of existing labour legislation…that has resulted in generally poor conditions of work, including excessive working hours, lack of sufficient rest breaks and hazardous working conditions.” • “The Committee is also alarmed by the high incidence of serious occupational accidents … particularly in the mining sector.” Southwest University of Political Science and Law