CLB Analysis of the New Trade Union Law

On October 28th, 2001, the Chinese government announced revisions to China's Trade Union Law (TUL), last revised in 1992. The new law contains a number of changes, some positive, some a step backwards. Careful reading of the revisions reveal that there are a substantial number of people within the ACFTU who are committed to enlarging the space in which the union can reform itself and getting such reforms on the statute books. On the other hand we can see in the revisions further evidence that neither the Party or the government is willing to relax their hold over the ACFTU; and even less willing to allow legislative reform to move in a direction that would enable the union to represent workers' interests. Clear signs of this divide can be seen in the removal of some clauses and additions of others to the trade union law.

The revisions follow more than 20 years of economic reform that has pluralised Chinese society. Entry into the World Trade Organization (WTO) will add to this process as well as further aggravating disputes between workers and employers. The conflict of interests between workers and other social classes, as well as with the ruling regime will continue to sharpen, reflecting a trend that has been going on for some time. Against this backdrop, the revisions to the trade union law testify to the fact that the Party is not only unwilling to weaken its hold over the unions, but even wants to strengthen it.

Article 4 of the new law makes this very clear. To the 1992 version that stipulates

"[T]rade unions shall observe and safeguard the Constitution [of the PRC – Ed.], take it as the fundamental criterion for their activities and conduct their work in an independent and autonomous way in accordance with the Constitution of Trade Unions [of the PRC – ed.]",

the new version adds

"[Trade Unions] shall take economic construction as the centre, adhere to the socialist road, uphold the people's democratic dictatorship, abide by the leadership of the Chinese Communist Party, adhere to Marxist-Leninism Mao Zedong Thought and Deng Xiaoping Theory, persevere in reform and opening… "(1)

Here we can see that the heart of the union's work is fixed as economic construction. Moreover, the trade union must carry out its core task of economic construction on the preconditions of the "four cardinal principles" (2). These additions to Article 4 go one step further in confirming the fundamental principle that the trade union is under party domination and works for the party. At all costs, the ACFTU must not transform itself into an organisation prepared to struggle for workers' rights and interests.

In order to hammer home the point that the ACFTU must remain a tool for CCP policies, the new TUL retains many crucial articles which serve this purpose.

Article 5 re-iterates that trade unions

shall assist the people’s governments in their work and safeguard… the socialist state power of the people’s democratic dictatorship led by the working class

Article 6 stipulates that only

[W]hile protecting the overall interests of the entire Chinese people, trade unions shall safeguard the legitimate rights and interests of the workers and staff members.

According to CCP rhetoric, only the party itself can represent the overall interests of the people. In the event of a clash in interests between workers and the government or the party, the trade union is left powerless to protect its members.

Having laid down the guiding principles and basic functions of the ACFTU behind the new law, Article 27 moves on to practical application. It stipulates that in the event of any work stoppages, the primary goal of the union is to "assist the enterprise or institution in making proper preparations for resuming work and restoring work order as soon as possible".

In fact, getting workers back to work as soon as possible, regardless of whether or not their demands have been met, has always been the priority of the ACFTU. The organisation has always been at its most effective at wrecking workers' independent struggles.

All the above reaffirms the ACFTU's subordinate relationship to both the government and the party at three levels: the union must abide by the Party’s guiding principles; the union must subordinate its organization to the Party machinery; and the union must perform the function of carrying out the wishes of the Party in its intervention in labour disputes at local or enterprise level.

The new TUL also further consolidate - as if this was necessary - the ACFTU's monopoly on trade union activities and organising. As labour relations in China worsen and workers' struggles become increasingly common, the working class is left without any legal space to organise independent trade unions. Several crucial clauses protecting the ACFTU monopolistic position remain unchanged in the new TUL. In particular, Article 10 stipulates that

the All-China Federation of Trade Unions shall be established as the unified national organization.

Article 11 stipulates that

the establishment of basic-level trade union organizations, local trade union federations, and national or local industrial trade union organizations shall be submitted to a higher-level trade union organizations for approval.

These articles not only shore up the ACFTU's monopoly on organising but also technically and procedurally block the road to workers organising independent unions.

Since the new law was passed on October 28th, CLB has talked to trade union officials and chairpersons from Daqing city, Jiangxi province, Xintai city in Shandong province, and Baoding city and Dingzhou city in Hebei province. These telephone conversations were prompted by workers taking strike action or organising demonstrations in their respective cities. When we discussed whether or not the new law would give the ACFTU more room or opportunity to protect the rights of their members, all of these officials from different parts of the country and working at different levels of the organisation answered with one voice: The ACFTU belonged to the CCP and could never take any legal action, in order to uphold workers' rights, that would oppose the government or enterprises which were led by the party.

Leaving aside the restrictions on independent trade union organising already discussed, the new law provides some concrete progress. However, the problem remains that the progressive clauses mentioned below suffer from the serious limitations already discussed and will be of little use without intervention from workers themselves.

The dramatic increase in bankruptcies during 20 odd years of reform, and over the last 10 years in particular, have led to the ACFTU loosing a large number of affiliates and members. Moreover, efforts by local governments to attract foreign investment have severely restricted the establishment of trade unions in foreign-owned and foreign-invested enterprises. This decline in membership has had serious financial implications for the ACFTU. In some areas, even wage payments to union cadres have been delayed, resulting in widespread and increasing dissatisfaction, especially at the lower levels of the organisation. Additional articles to the new TUL are aimed at addressing these issues. Most importantly, they establish the basis for the ACFTU to take legal actions to protect their revenues and assets. For example, Article 43 stipulates that

[W]here an enterprise or institution delays or refuses payment to a trade union without a legitimate reason, the primary trade union or the union at the higher level may apply to the local People's Court to order the enterprise or institution to make a payment.

Using the law to ensure that enterprises check-off union dues promptly is most definitely a good thing when the trade union genuinely represents the interests of workers. However, while these new provisions on union dues are definitely good news for the ACFTU, they are not necessarily to the advantage of workers, as the organisation exists to assist the employers, government and the party in their work. Independent trade unionists in China will find nothing to celebrate in legislation that guarantees the finances of an official trade union with a legal monopoly on organising.

Officials waste little time to advertise that the new TUL brought China closer to the International Labour Conventions and Standards. They claim that the new amendments protect the right of workers to organize union and collective bargaining. For example, Article 3 stipulates that all workers in China

have the right to organize and join trade unions according to law. No organisation or individual shall obstruct or limit [this right].

Article 9 stipulates that

Trade union committees at various levels shall be democratically elected at members’ assemblies or members’ congresses… Trade union members’ assemblies or congresses have the right to remove or recall the representatives or members of trade union committees they elected.

Article 17 stipulates that

No trade union chairperson or deputy chairperson shall be dismissed without the approval of more than half of the members of the general assembly or representative assembly.

These procedural and technical additions to the 1992 Law represent a positive advance. Previously, the rights were just stated on paper but without any concrete procedural regulations to back them up. As such the new provisions will certainly facilitate those workers who wish to use elections to advance their rights. CLB has long persuaded workers to use their membership of the union along with the relevant articles of trade union law to try and reform the union. However, workers' disillusionment towards the ACFTU has made this a very hard argument to win. But CLB will not ignore any window of opportunity to push the development of independent trade unionism in China, including reform of the ACFTU by the members themselves. We firmly believe that the organisation will never take the initiative to conduct open elections as this is not in the interests of the party, government or employers. The pressure for this advance must come from the workers themselves.

The new law also allows ACFTU to take legal actions against those enterprises that illegally violate workers' rights. Article 20 stipulates:

Where an enterprise infringes upon the workers labour rights in violation of a collective contract, the trade union may demand that the enterprise be held liable under the law. Where a dispute occurs over the implementation [Xinhua version states "performance"] and where consultation has failed to produce a solution, the trade union may apply for arbitration from the labour disputes and arbitration organization. Where the arbitration organization refuses to hear the case or the trade union is not satisfied with the arbitration decision, it may initiate legal proceedings with a People's Court.

Article 22 covers similar protection against violation of labour law and regulations over wages, health and safety, working hours, female workers. Apart from the above articles, there are other provisions (e.g. Article 50) that render unreasonable employer behaviour illegal and allow trade unions to take legal action. This includes dismissals for taking part in union activity, dismissal of union officials for carrying on union business, blocking the organisation of staff and worker congresses and other forms of democratic rights, union busting, obstructing claims for work injury compensation lodged by the trade union, refusing to take part in equal negotiations with the union and other rights violations.

It is clear the ACFTU and its affiliates will thus have more room to take measures to protect workers rights. But again, CLB's interviews with ACFTU officials do not allow us to believe that trade union bureaucrats will take up this opportunity to go after employers who wantonly violate the rights of their employees. Such acts simply wouldn't tally with the interests of the CCP, the government or the employers. It is going to take much more than a revision of trade union law to reform the organisation from being a party puppet into a genuine trade union.

Some Progress - But Still Far Behind ILO Standards

There are clauses and articles in the new trade law that move China nearer to ILO labour standards. For example Article 20 stipulates the procedure for signing of collective employment contracts:

[O]n behalf of the workers, a trade union shall engage in consultation on the basis of equality with the enterprise and institution that practices corporate management and shall enter into a collective contract. The draft collective contract shall be submitted to the workers' general assembly or representative assembly for discussion and adoption.

Article 34 covers the establishment of tripartite consultation:

In conjunction with trade unions at the same level and representatives from enterprises, the labour department in a people's government shall establish a tripartite [Xinhua version states "three-sided"] consultative mechanism through which to address and resolve major problems [Xinhua version states "the major issue"] in labour relations.

These new provisions are a sign of progress towards ILO standards. However, because this same law puts the task of "economic construction at the centre" and because the ACFTU has to operate under restrictions of the "four cardinal principles", protecting workers' rights is going to come way down the list of priorities. Without the ILO principles of "freedom of association" and "collective bargaining", we are still, at the end of the day, looking at window dressing. Moreover, any trade union official who is not happy with the current state of labour relations and wants to use the new provisions in the law to stop the rights of workers being seriously violated will be taking very real political risks. The apparent progress in the new law has to be viewed in the light of the limits imposed by the string of political clauses also included, leaving us no nearer freedom of association than we were in the previous law.

So What Can Chinese Workers Do?

Despite all the restrictions and window-dressing, Chinese workers can use this law to their advantage. It is not even inconceivable that we can eventually put the ACFTU back in the hands of workers themselves. Most of all, Chinese workers must take the initiative and rely on their own actions to defend their rights and interests.

Elections for union offices every three to five years, the formation of local town-level and sub-district federations, as well as members having the right to call an extraordinary union meeting once 33% support of other members is obtained, are all provisions that go beyond window dressing - they are windows of opportunity for Chinese workers to get involved in union activity. Article 55 stipulates:

Where trade union personnel violate the provisions in this Law and infringe upon the rights and interests of workers or the trade union, the trade union at the same level or the trade union at the higher level shall order them to make correction [sic] or take disciplinary action against them. In a serious case, they shall be dismissed in accordance with the Trade Union Charter. [ACFTU Constitution - Ed.] Where losses have occurred, the personnel shall be held liable for damages. Where a crime has been committed, they shall be criminally liable.

It will take workers using clauses like this that will gradually help to transform the ACFTU into an effective and representative trade union. We must use effective methods to encourage Chinese workers to make the best use of the law. The procedures Chinese workers can use remain unclear and no doubt they will be defined by the ACFTU itself. We are still working in the dark and cannot be certain of the outcome.

Right from our inception, one of CLB's main tasks has been to encourage Chinese workers to take back the control of the ACFTU which was originally their union until it was usurped by the CCP. According to internal Chinese government reports, CLB's radio programme on labour rights is listened to by more than 10 million people and our strategy of encouraging workers to get involved in the union is bearing more and more fruit. In 2002, we will launch a "Trade Union Education Web Page", an email newsletter, and put together a "Trade Union Education Handbook". In the coming years we will use all methods and channels of communication in order to promote the struggle for independent trade unionism in China and return the ACFTU to the workers themselves.


(1) Translators' Note: Where the wording of the law remains unchanged the English is taken from the ACFTU website English version of the 1992 law. Where new articles, clauses and wording is added, the translation is from Xinhua News Agency domestic service 18/11/01 via the BBC Monitoring Service. It should be noted that parts of the Xinhua version of the revised law contain translation errors and they have been corrected where appropriate. The corrections have been marked in the text. (back to article)

(2) “Adhering to the socialist road, upholding the people's democratic dictatorship, abiding by the leadership of the Chinese Communist Party, and adhering to Marxist-Leninism Mao Zedong Thought and Deng Xiaoping Theory” are collectively known as the ‘four cardinal principles’ which are also laid down in the constitutions of the ACFTU and the Communist Party. (back to article)


Online: 2002-02-28

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