BILINGUAL COURSE
ON
LABOR
& 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
HOW FAR DOES CHINA LAG
BEHIND INTERNATIONAL
STANDARD?
2
Southwest University of Political Science and Law
LESSON 1: INTRODUCTION
INTERNATIONAL STANDARD


As for China, international conventions always
set up somewhat higher bar.
Southwest University of Political Science and Law

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.
3
INTERNATIONAL STANDARD
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
Universal Declaration of Human Rights; (23,24,25)
 Two subsequent UN Conventions:

4
INTERNATIONAL STANDARD


Southwest University of Political Science and Law

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;

5
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

6
THE RIGHT TO WORK
Southwest University of Political Science and Law
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 …

7
THE RIGHT TO WORK
Southwest University of Political Science and Law
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…

8
THE RIGHT TO WORK
Southwest University of Political Science and Law

Before 1980s (Opening up and Reform): Dualistic
Structure of Chinese Society in terms of
employment and social security
Urban
Area
Rural
Area
9
THE RIGHT TO WORK
Employment
promotion
 Employment service
 Vocational training
 Employment insurance

Rural area
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
Urban area
10
THE RIGHT TO WORK
Urban Migrant
Rural
Workers
Residents
Residents
Southwest University of Political Science and Law
Things has been slightly changed…
11
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

12
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

13
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

14
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.
Core labor standards are
a central plank of decent
work.
Southwest University of Political Science and Law

15
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

16
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

17
TRADE UNION IN CHINA
Provincial-level Federation of Trade Unions(省总工会)
City –level Federation of Trade Unions（市总工会）
County-level Federation of Trade Unions (区县总工会)
Basic Trade Unions （基层工会）
National
Industry-level
trade unions
Local industrylevel
Trade unions
Southwest University of Political Science and Law
All-China Federation of Trade Unions（中华全国总工
会）
18
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

19
TRADE UNION IN CHINA
Southwest University of Political Science and Law
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!

20
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

21
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

22
THE RIGHT TO COLLECTIVE BARGAINING
Southwest University of Political Science and Law
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).

23
THE RIGHT TO COLLECTIVE BARGAINING
Southwest University of Political Science and Law
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”.

24
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

25
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

26
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

27
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

28
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

29