Several labour activists and scholars have proposed a revision to China’s Trade Union Law that could help protect workers’ representatives from retaliation by employers.
The authors, who include labour lawyer Duan Yi and labour-relations expert Chang Kai, point out that a simple amendment to Article 52 of the Law to give employees engaged in collective bargaining with the employer the same legal protection as enterprise trade union officials would go a long way towards leveling the playing field in labour disputes and, in addition, help stabilize the development of the collective contract system in China.
They point out that worker representatives are increasingly being targeted by employers; before, during and after collective bargaining, and argue that giving representatives the same legal protection as trade union officials would act as a significant deterrent to such persecution. The proposal specifies the legal grounds for making such a revision to the Law and suggests a precise wording for the amendment.
The proposal has been translated below by China Labour Bulletin
Proposal for Revision of Article 52 of the Trade Union Law of the People's Republic of China
Main points of the case
Collective bargaining is one of the fundamental means of establishing harmonious labour relations. To ensure the normal conduct of collective bargaining, it is necessary to restrain employers’ unfair labour practices and protect employee representatives engaged in bargaining. If a representative is fired by the employer due to their participation in collective bargaining, the law shall prohibit such action and provide remedies for the representative. This is a general requirement of labour legislation in a market economy. However, the deficiency of the exisiting Trade Union Law in China has resulted in the lack of effective legal remedies in the case where employee representatives are wrongfully dismissed for their participation in collective bargaining. This in turn influences and impairs the healthy and effective development of the collective contract system. In order to protect collective bargaining representatives, improve the collective contract system, as well as promote the healthy development of collective bargaining, we hereby put forward this proposal for revision of Article 52 of the Trade Union Law.
Grounds
The said Article 52 explicitly stipulates that the employer’s wrongful termination of an employment contract is forbidden and provides specific remedies. Nevertheless, this stipulation only applies to two cases: “(1) the labour contract of an employee is terminated due to their participation in trade union activities; or (2) the labour contract of a trade union functionary is terminated due to the performance of their duties and functions prescribed by this Law.” Although the said Article provides judicial remedies for an employee whose labour contract is terminated due to their participation in trade union activities, no specific details of such activities are given.
As is shown in a large number of actual cases, employees who participate in spontaneous bargaining initiated by employees often end up having their labour contracts terminated by the employer on the grounds of severe violation of labour discipline.
Such employees can be divided into the following types: 1) those who were elected as representatives and were about to initiate bargaining (e.g. Wang Shishu, wrongfully dismissed by Walmart in Shenzhen); 2) those whose contracts were terminated during bargaining (e.g. Cai Manji, wrongfully dismissed by Hengbao Jewellery in Guangzhou); 3) those who went on strike because the employer did not respond to their offer of bargaining (e.g. 213 workers including Qin Mingjiao, wrongfully dismissed by Nokia in Dongguan); 4) those who were targeted by the employer after bargaining (e.g. five workers including Wang Qingchun, wrongfully dismissed by International Paper in Guangzhou).
Therefore, the Law shall extend and specify the details of employees’ “participation in trade union activities” to include the participation of employees’ bargaining representatives, especially those elected by employees, in collective bargaining on wages etc.
The legal ground is as follows.
1. Article 33 of the Labour Law of the People’s Republic of China stipulates that:
“The employees of an enterprise as one party may conclude a collective contract with the enterprise as another party on remuneration, work hours, rest and leave days, health and safety, insurance, welfare payments, and other matters. The draft collective contract shall be submitted to the workers’ congress or all the employees for discussion and approval.
Collective contracts shall be signed by and between the trade union on behalf of the employees and the employer. In an enterprise that has not yet set up a trade union, such contracts shall be signed by and between representatives recommended by the workers and the enterprise.”
The above stipulation explicitly means:
1) Signing a collective contract is the right of “the employees of an enterprise as one party”, which shall be effectively safeguarded.
2) There are two different situations in which a collective contract can be signed. For an employer which has established a trade union, the contract shall be signed by and between “the trade union on behalf of the employees and the employer”. For “an enterprise that has not yet set up a trade union”, the contract shall “be signed by and between representatives recommended by the workers and the enterprise.”
However, the existing law only refers to the protection of the union representatives signing the collective contract, with no reference to “representatives recommended by the workers”. This is a deficiency and oversight of the law. Legally speaking, these two types of bargaining representatives authorized by the law do not enjoy the same protection and treatment, which is against legal justice. Realistically speaking, the existing law has a loophole, which can be used by some employers to retaliate against employee bargaining representatives, and thus it hinders the development of the collective contract system.
2. Article 51 of the Labour Contract Law of the People's Republic of China stipulates that:
“A collective contract may be concluded by the labour union on behalf of the employees of the enterprise with the employer. If the enterprise does not have a labour union yet, the contract may be concluded between the employer and the representatives chosen by the employees under the guidance of the labour union at the next higher level.”
According to this stipulation, the bargaining between the representatives chosen by the employees and the employer shall also fall into the category of trade union activities. If in reality the labour union at the next higher level does not offer guidance and help concerning collective bargaining to the said representatives, it would only mean the absence and or negligence on the union’s part, rather than a change in the nature of the bargaining. It is therefore justifiable to provide protection for the representatives chosen by the employees based on the nature of the Trade Union Law. Moreover, this addition would also encourage the union to better fulfill its obligations under the law.
Suggestions
We hereby suggest Article 52 of the Trade Union Law should be revised from the original:
“In any of the following cases in which the provisions of this Law are violated, the administrative department for labour shall order that the victim be reinstated, their remuneration payable during the period of the termination of the labour contract be made up, or that compensation of two times the amount of their annual income be given：
(1) The labour contract of an employee is terminated due to their participation in trade union activities; or
(2) The labour contract of a trade union functionary is terminated due to the performance of their duties and functions prescribed by this Law.”
The suggested revision stipulates:
“In any of the following cases in which the provisions of this Law are violated, the administrative department for labour shall order that the victim be reinstated, their remuneration payable during the period of the termination of the labour contract be made up, or that compensation of two times the amount of their annual income be given：
(1) The labour contract of an employee is terminated due to their participation in collective bargaining (not limited to wages) and trade union activities; or
(2) The labour contract of a trade union functionary is terminated due to the performance of their duties and functions prescribed by this Law.”