Xiong Gaolin is one of the lucky ones: a victim of occupational disease in China who has actually received reasonable compensation. However, it took him nearly four years to get that money and there are still issues left unresolved. Xiong could have just accepted part-payment but, like many other workers with occupational illness in China, he is determined to fight on until justice is finally done.
Xiong was diagnosed with Stage One-plus Silicosis in January 2009 whilst still employed in a notoriously dusty jewellery factory in southern Guangdong, and thus was able to get his condition classified as an occupational disease relatively easily. However, many other workers with the same disease only discover the true nature of their illness long after leaving their employment, by which time it is usually too late. Silicosis is a variant of the deadly lung disease pneumoconiosis (by far the most prevalent occupational disease in the country) and has an incubation period of up to 10-15 years.
After such a long period, migrant workers in particular have great difficulty in locating their former employers and proving their labour relationship. Employers usually don’t sign contracts with workers or don’t give workers a copy of the contract. And without documentary evidence of a labour relationship, it is very difficult to get work-related injury certification, which is the perquisite to work disability assessment, which in turn determines the amount of compensation to be paid.
Sichuan miner, Chen Xiezhong, for example, contracted pneumoconiosis after working for 14 years in the zinc and lead mines of a neighbouring county. His former employer could not be found because the mine had been sold by the local government. But undeterred he led 70 other co-workers in pursuing other avenues of justice, including suing the local health bureau for nonfeasance. Sadly, Chen died last month at the age of 39, still unable to find his employer and finish the work injury certification process. His colleagues are continuing their fight.
According to official news reports, the number of deaths from pneumoconiosis each year in China is three times higher than the deaths from mining accidents. And Wang Keqin, the founder of Love Save Pneumoconiosis (大爱清尘), a civil society organization that raises money for the medical treatment of pneumoconiosis victims, estimates that there could be six million workers with pneumoconiosis in China, a sharp contrast with the official statistics of 676,541 in 2010.
China Labour Bulletin’s new Chinese language research report, published in November, moreover discusses how although the number of new cases keeps rising each year, only a small proportion of victims can get proper compensation. Local governments are supposed to, under the amended Law on the Prevention and Treatment of Occupational Diseases, accept workers’ applications for medical treatment and allowances if the employer can no longer be found but many local governments are unable or unwilling to take on the burden of providing the 10,000 to 20,000 yuan per year each worker would need for medical treatment.
Many of Xiong Gaolin’s co-workers, who were also diagnosed with silicosis, accepted the factory’s initial offer of about 100,000 yuan. But Xiong not only received around 100,000 yuan in work-related injury compensation, he won an additional 200,000 yuan in civil compensation, including damages for mental anguish and the cost of future medical treatment. Yet, the whole legal process, including arbitration and two civil trials, took him 45 months.
“I understand it’s difficult to defend my legal rights,” said Xiong, “but if I were asked to make a choice three years ago, I would still make the same decision.”
Xiong’s lawyer hopes the relative success of Xiong’s case will encourage other occupational disease victims to follow suit and not choose the potentially hazardous approach of public protest. Two years ago, for example, dozens of jewellery workers in Foshan, worried about their compensation after the company announced bankruptcy and relocated, blocked the road in the hope of getting the attention of the municipal government. They were later detained for five to ten days by local police.
But Xiong and his lawyer do realise the legal system in China is not a panacea. Even after the appeal court ruled in his favour and awarded him compensation for both mental anguish and the cost of future medical treatment, it still took another four months for Xiong to get the actual money, and even then some of the agreed compensation was held back by the jewellery company.
“Problems executing the judgement created the biggest challenge in this case,” his lawyer said. “It indicates that the judicial environment in China needs improving.”