China Development Brief, no.50 (Summer 2011)
In 2009, Chinese migrant workers came in second behind U.S. Federal Reserve Chair Ben Bernanke as TIME magazine’s Person of the Year because of their critical role in the global economy. Yet we rarely hear of the costs incurred by migrant workers because labor rights is a sensitive issue in China, and independent NGOs that work in this sector are small, lack capacity, and have little space to work and advocate for the rights of migrant labor. CDB’s coverage of labor in this issue is therefore worthy of our attention. This article details some of the strategies that migrant workers use to deal with wage arrears, and possibilities for workers to organize through grassroots unions under the All-China Federation of Trade Unions (ACFTU), a GONGO that is China’s only legal labor union yet has been unsuccessful in reaching out to migrant workers.
The problem of labor conflicts related to back-pay owed to migrant workers is especially acute in the construction industry due to the high turnover rate and multiple layers of sub-contractual relationships. Wage arrears among migrant workers have drawn great social attention, in response to which the government has issued new policy directives and laws to address the issue. However, the stark reality is that 70 percent of migrant workers in the construction sector have not signed any labor contracts. At a “Dialogue with Construction Workers” event held in Beijing University on April 25, 2011, the focus was once again on this vulnerable section of the population.
The organizers of the event were Beijing Xingzai Renjian Culture and Development Center (hereinafter “Xianzai Renjian”), a social service organization supporting migrant workers, and the Mobile Volunteer Station of the “Hard Hat College Students” (hereinafter “the Hard Hats”). They hoped the event and subsequent “May-Day Labor Culture Week” would delve into the reasons behind non-payment of wages in the construction sector, as well as effective methods for protecting workers’ rights, mobilizing and consolidating support from all sources, and helping to “build the dignity of the construction worker”.
At times, the dialogue turned into a conversation between Li Dajun, deputy director of Xingzai Renjian, and the audience. Workers, scholars, public interest legal aid organizations, All-China Federation of Trade Unions (“ACFTU”) officials along with representatives of the media were, in the course of the conversation, made aware of the plight of migrant workers.
The Law Muffles All Sound and Can Only Be Heard By Striking Hard
Among the dialogue’s panelists were two construction workers: The first, He Zhengwen (from Langzhong in Sichuan province), the plaintiff who brought the very first labor contract dispute case in the construction sector; the other, Li Xingfeng (from Hebei province), a subcontractor who has organized various collective attempts in seeking redress for wage exploitation. These two representatives presented two different approaches to defending workers’ rights in labor and wage disputes.
He Zhengwen took the route of seeking legal redress. Over the course of more than a year, he went from the Labor Supervision Station to the town Labor Bureau, to the district Labor Supervision Team, from arbitration to court hearing. In 2010 he finally obtained the salary, overtime pay, and penalty owed to him based on his unsigned labor contract.
In the other approach, Li Xingfeng along with 30 other worker friends demanded their back pay in a collective manner at the end of the year. Although they successfully obtained the unpaid wage owed to them, a steep price had to be paid — 4 organizing leaders were at one point detained in the public security station for a whole day. Apparently, both approaches adopted here in defending workers’ rights are rife with challenges and difficulties.
“We are inclined to defend our rights in a collective manner. (As soon as wage exploitation arises) we pack our sleeping bags and march to the Labor Bureau” one worker said.
Another worker disagreed, saying, “Most of us don’t choose to defend our rights, because we can’t afford the steep cost associated with it.”
Defending rights in a collective and confrontational manner appears to yield swift results. However, such collective action itself runs the risk of being deemed illegal. In contrast, workers choosing to pursue a legal remedy are often kicked around different governmental departments like a soccer ball. Without determination, adequate legal knowledge and outside support, workers turning to the law to defend their rights can often end up being mired in a prolonged and fruitless struggle with little hope of success.
Due to the long time required to resolve cases, public interest organizations providing free legal aid services to migrant workers often have to deal with the challenges of high operational costs. “(Seeking legal redress) takes 1-3 months at the quickest, but it can take as long as 1-3 years.” This fact was pointed out by Wang Yangbin, a lawyer from Beijing Zhicheng Migrant Workers Legal Aid and Research Center. Although, according to Tong Lihua, director of Beijing Zhicheng Center and a Beijing People’s Congress representative, it takes about 3 years and 9 months to complete the whole legal procedure with some cases taking up to around 6 years 7 months. Cases represented by Beijing Yilian Labor Law and Research Center, also a legal aid organization serving migrant workers, took a similar period of time to resolve.
Li Dajun inquired if anyone in the audience had themselves encountered the issue of unpaid wages. There were more than 10 workers who raised their hands. The personal stories they relayed , although different in details, all shared the same bitterness and indignation. Li raised the question several times during the event as to which method in defending rights is more effective. There was, however, no conclusive answer.
Lu Linhui, Associate Professor of Sociology at Beijing University and author of The Big Construction Site pointed out that, when Karl Marx studied the workers’ condition in England, even then there was no such problem as unpaid wages, at least such an issue did not appear in “Capital”. This has only became a common problem in more recent times due to structural deficiency in the system.”
“It seems now that (relevant governmental departments) are concerned about money, capital, and employers but not migrant workers”. One worker spoke of his impression. It is precisely these “different priorities” that lead to the continuing plight of migrant workers in protecting their rights despite gradual improvements in the laws. Proactive initiatives therefore become the only way out in face of this dilemma. Professor Lu acknowledged the price paid by He Zhengwen (in seeking legal redress): “For an individual, the price he paid might be prohibitively high. However, by taking action, he showed us that this law is not a bell, but rather muffles sound. Only by striking it hard can one be heard. If we don’t make the bell sound, then the law is essentially window dressing.”
The Alarming Condition of Migrant Construction Workers
By 2004, the population of migrant construction workers in China had reached 40 million. The widely debated unpaid wage issue is predominantly concentrated in the construction sector. Since 2008, Xingzai Renjian has focused on providing social services to migrant workers in this industry. In 3 years the organization has visited dozens of construction sites and provided services to migrant construction workers. They also completed an investigative report on their working and living conditions. This report concluded that migrant workers face six major problems: low rates of signing an employment contract; difficulty in receiving a full salary; difficulty in participating in a social safety network; inadequate on-site living conditions; serious safety hazards and unsafe working conditions; and lack of training. As a society, we should be alarmed that even as the national income rises, so many migrant construction workers are still struggling to obtain back pay.
Xingzai Renjian Project Officer Liu Lijun said that 72 percent of the workers they interviewed stated they had not signed any labor contract. Even among workers who had a contract, none had a copy of it. In addition, many provisions contained in such contracts are coercive. To complicate things, the multiple layers of subcontractors result in multiple layers of payment relations. Subcontractors commonly adopt a so-called flexible labor policy which appears to be neutral but essentially benefits the employers. Liu said “without workers having the ability to collectively organize and negotiate, flexible labor policy can easily lead to employers violating the rights of their workers and wage arrears are prone to occur as a result of such violation.”
We have seen some changes after the enactment of the 2008 Labor Contract Law which stipulates that failure in signing labor contracts will result in employers paying double wages as penalties. Xingzai Renjian has found that although more contracts are being issued to workers to sign, they serve more as a formality for employers to protect themselves from inspection. If workers refuse to sign such contracts, they will be asked to leave. In addition, the wages stipulated on these contracts are usually lower than what was verbally agreed. Consequently, if a dispute arises and workers file a complaint with the labor bureau, pay is settled according to the contract, otherwise workers are likely be accused of bad faith in demanding more than what was owed to them.
The Amendments to the Criminal Code passed by the National People’s Congress Standing Committee on February 25, 2011, which was officially implemented on May 1, for the first time included “ intentional wage arrears” as a criminal offense. This change has brought hopes to migrant workers. According to Guan Xiangkun, director of the All-China Federation of Trade Union’s (ACFTU) legal department, the ACFTU has been pushing for the inclusion of such an offense in the Criminal Code since the highly publicized incident in 2003 when Premier Wen helped a female farmer named Xiong Deming secure unpaid wages.1 However, the implementation of the new provision does not appear to be a cause for optimism. There still exist many uncertainties and challenges as to how to adjudicate and implement the new law in a concrete manner. The effectiveness of the law therefore remains to be seen.
How “Outside Support” Can Be Brought In
The purpose of a dialogue with NGOs is not only to present and analyze the problems, but also to focus on a course of action and explore possible ways of solving the labor problems present in the construction sector. When discussing the issue of how to provide assistance to migrant workers who are at the bottom rung of the social ladder, Li threw out a question, “In addition to migrant workers’ seeking redress according to the law, what role is there for outside support?” Guo Wei, director of the Office of Social Work and Social Policy Research at China University of Political Science and Law replied, workers organizations like the ACFTU should not be counted as “from the outside”; on the contrary they should be closely aligned with workers. Wang Yanbing, the Beijing Zhicheng Center lawyer, advised that migrant workers should push to sign a labor contract; if one is not available to sign, they should make efforts to collect evidence. Effective damage control starts with good preparation; otherwise the legal aid support offered by pubic interest organizations will always have to serve as the last resort.
As a professional social service organization, Xingzai Renjian has established their very own style and work modes. Paying visits to construction sites and listening to migrant workers describe their problems, holding variety shows at work sites to overcome regional and departmental barriers and help create a social network among workers themselves, the organization also uses newspapers and on-site training events to educate workers and raise awareness of labor laws and regulations. Additionally Xingzai Renjian has helped raise workers’ consciousness and capacity by assisting in individual cases, and established mobile labor unions for migrant construction workers by conducting training in villages. Lastly, they have managed to increase awareness of the issues faced by migrant workers among China’s high school and university students using media and student volunteers.
During this process, the student volunteer network, the Hard Hats, also became a force by visiting construction sites and engaging in providing services to migrant workers. These students crossed social boundaries, stepped out of their privileged world of academia and entered the construction sites. They built close relationships with workers, who are at the bottom rung of the social hierarchy. Students experienced the hardships of the workers through such close interaction. It is in this very interaction that one witnesses the budding of civil society in which a social foundation has been laid out for going forward.
From Guo Weihe’s perspective, the efforts of Xingzai Renjian, and the Hard Hats realize the promise of social work in a transitional society. Changing the identity of migrant workers, and defending their rights, cannot be achieved through counseling and pacification. It has to come about by bringing together resources from inside the system and using a variety of tactics to produce noise and create impetus for change from within.2 Some of the tactics include garnering support from relevant players in public security, judiciary and prosecuting agencies, and building grassroots labor unions and migrant workers’ art organizations etc.
“If the Labor Contract Law is not a product of our efforts but rather a handout from the government, how can we ensure the real implementation of such a law? We need our own organization that truly represents the interest of our workers”. These are the words of Sun Heng, the founder of Beijing Workers Home, a new Worker’s Art Group. Sun Heng emphasizes the agency of workers themselves, “Without agency, it’s untenable to simply rely on outside support alone. The question is whether we have the right awareness, whether we can organize and unite ourselves?” Sun asked the workers present at the event.
How Do Grassroots Labor Unions Become Migrant Worker-Owned Unions
As Sun Heng pointed out in his question, a solution to the problem of labor rights is unattainable if workers rely purely on the support of outside forces alone. Rather the solution has to lie with the workers themselves and the development of their ability to organize so they can negotiate with employers. With regard to the ACFTU, which has long been subject to criticism and controversy, many hope it can become a bona fide representative of the workers within the current system.
Labor experts have focused attention on the structure and independence of grassroots unions.3 Wen Xiaoyi, a lecturer at the China Labor Relations Academy stated that the position of shop steward of many grassroots labor unions is often times held by the business owners themselves, thus making these unions illegal. Despite the good intentions of establishing labor unions from the top down, many changes occur on the shop floor which serve to make such unions highly ineffective. Currently however, Guangzhou is trying to establish a trade union for the construction sector, and the ACFTU is experimenting with professionalizing their shop stewards so as to remove their current financial dependence on the firm, thereby severing the relationship with their employers. Given these new initiatives, we might see some positive changes in the near future.
Beijing University’s Professor Lu pointed out that “because China is still in a period of societal transition, pay-related worker disputes are particularly acute, thus there is increasing demand placed on the ACTFU. The key to a solution is not simply to increase membership coverage but to increase the operational effectiveness of these unions”
In fact, Xingzai Renjian has established a village-level mobile labor union in Xingtai, Hebei Province, one of the regions many migrant construction workers hail from; however, the effectiveness of the union is questionable largely due to the scattered nature of union members and the geographic restrictions placed on the union’s jurisdiction. Union members attempted to seek help on getting paid from a county-level union but were turned away because they were not union members from that county.
In response to this example, Guan Xiangkun of the ACFTU pointed out that the ACFTU very much hoped that workers could join the union. “It is acceptable to establish an union even in construction sites at the community or street committee level.4 As long as you have gathered 5 people, you can start a pre-operational committee, file an application to establish a union with the street or neighborhood committee, and elect members of the union. There will be dedicated union specialists to provide assistance.” In addition, it is acceptable to establish a union below the county level in the mining, construction or restaurant industries in order to address the dispersed nature of migrant workers. Such unions can solve the above-mentioned problem encountered by unions in the home areas of many migrant workers. Guan Xiangkun stated “The ACFTU is a big family. Every locality has mechanisms for protecting workers. In case any union refuses to take action, there is a clear provision in the 1992 Labor Union Law that an appeal can be made to the union at the next administrative level.”
There are some best practices in a few regions that offer us some consolation. Wang Ling, senior reporter at Yicai, has been paying close attention to labor issues for a long time, and brought some inspiring news from Shenyang. She said that 80 percent of construction workers have signed labor contracts in the city, home to a massive industrial worker population. She interviewed a pilot company last year and found that every worker possesses a labor contract signed by three parties: the project department, the labor union representative, and the subcontractor. There is a good monitoring mechanism in place, and workers could bargain with the employer. Some templates have also been established with regard to collective bargaining. Under such a system, unpaid wages are happening less frequently. When they do arise, it is easier for the union to intervene on behalf of the workers due to the possession of written evidence.
Last year the ACFTU stated that “Protecting rights is the foundation of and prerequisite to stability”. Such a statement indicates that the government, having reflected on a series of labor disputes which occurred last year – including the incidents at Foxconn – is undergoing a shift from a growth-reliant, export-oriented economic model in which wage and social security concerns were suppressed to a model that pays attention to people’s livelihoods and workers’ rights. These changes come at the right time for the ACFTU which is intent on becoming a true representative of workers’ rights and cultivating the development of grassroots unions.
Editor’s Note: The ACFTU is a mass organization, or what we might call a GONGO, created by the Communist Party to represent the workers. It is the only legal trade union in China in what is a classic corporatism arrangement. Independent trade unions are not allowed to be formed. ↩
Editor’s Note: “Inside the system” generally refers to the bureaucratic system under the party-state’s control. ↩
Editor’s Note: The term “grassroots” is used here to refer to unions formed at the lowest levels of the ACFTU hierarchy. It does not refer to independent labor unions. The Chinese term “jiceng” translates as basic-level or grassroots and is used in official parlance to refer to the lowest level of the administrative hierarchy that is closest to the lives of ordinary people. Thus, grassroots democracy is a reference to village elections which are held under Communist Party supervision. The term “jiceng” should therefore be distinguished from “caogen” which also translates as “grassroots” but is used by NGOs to denote organizations that are independent of the state. ↩
Editor’s Note: the street committee level, sometimes referred to as the subdistrict level, is the lowest level of administration in China’s urban areas. Communities (shequ) are the new name for neighborhood committees which are below the street committee level. ↩
“（通 过法律途径）比较快的是1～3个月，最慢的有1～3年以上”，北京致诚农民工法律援助与研究中心律师王延斌说。而根据北京市农民工法律援助站主任、北京市人大代表佟丽华根据工伤维权案的经验做出的判断，将所有的程序走一遍大概需要3年9个月左右，最长时间可达6年7个月左右。同样是为农民工提供法律援助， 北京义联劳动法律与研究中心代理维权案，耗时大概也相差无几。公益机构对农民工免费提供法律援助，自身往往还面临运行成本的高压。
“好像现在（有关部门）是跟金钱、资本、老板靠近，而不是向着我们农民工。” 一位工友道出了自己的感受。正是这样的“亲疏”关系，导致农民工在法律文本日渐完善的情况下仍然面临维权困境。而积极的行动，成为改变困境的唯一出路。卢晖临高度评价何正文的付出：“作为个人，他付出了很多成本，但是在这个过程中， 他去做了、去碰了、去尝试，某种意义上讲，这个法律还不是钟，而像个消音器，只有使劲地去撞，才会有声音。我们都不去敲这个钟，那法律就真的变成摆设了。”
中国建筑工人群体在2004年数量上已达4000万，社会上广受关注的欠薪问题绝大多数集中在建筑领域。行在人间从2008年开始关注建筑工人并为他们提供 社工服务，历时3年走访北京几十个工地，为农民工提供服务，完成了一份建筑工人劳动与生活状况调研报告。调查发现，建筑业农民工面临6大问题：合同签约率 较低；按月足额领到工资难；参加社会保险难度大；施工现场生活设施简陋；存在严重安全隐患、安全生产问题突出；职业培训缺失。在全社会收入水平普遍上涨的情况下，为数众多的建筑工却要为讨薪发愁，不能不引起社会警醒。
作为职业化的劳工服务机构，行在人间这些年逐步归纳和形成了自己的工作模式：工地探访和工人口述历史；通过工地文艺突破地域、班组障碍，到拓展工人社交网 络；透过报纸和工地书屋，教育工人，普及劳工法律、政策；透过个案辅导进行意识觉醒和能力培养；透过下乡培训建立建筑工流动工会；联系大学生志愿者，形成 联合力量；借助学者和大众媒体，进行倡导和宣传。