Creating a model for the resolution of collective labour disputes

In this English-language extract from CLB’s new report on the workers’ movement in China (中国工人运动观察报告2015-2017) we take a look at how civil society labour organizations in Guangdong helped workers in three collective labour disputes, and show how that experience produced a model for handling collective labour disputes that China’s official trade union would do well to learn from.

For the Chinese original please see page 19 of the report under the heading  劳工 NGO 的工作模式, and, for a full background report on the cases discussed, click on the links to the Citizen Watch Factory case, handled by the Laowei Law Firm in Shenzhen, and the University Town sanitation workers case and Lide Shoe Factory case, handled by the Panyu Workers Centre.

Guangzhou University Town sanitation workers on strike, 2014

We have identified six stages or phases in the work of civil society labour organizations during collective labour disputes; 1. Accepting workers’ requests for help, 2. Helping workers package demands and get organised, 3. Helping workers elect their own representatives, 4. Training worker representatives, 5. Helping and guiding workers during the collective bargaining process, and 6. Protecting worker representatives.

Accepting workers’ requests for help

In the first phase of a collective protest, workers seek to express their collective demands, such as payment of social security contribution arrears or economic compensation. However, very often, they do not know how to present these demands or how to get them accepted. Because there is no channel for bargaining within the enterprise, and because enterprise unions have long been under the control of the employers, employees often approach labour NGOs for help.

In the Citizen case, workers had been on strike for over a fortnight before management finally agreed to enter into dialogue. However, the striking workers were unsure how to proceed and approached the nearby Laowei Law Firm for assistance. In the University Town case, the workers initially sought out the local government and labour inspectorate but never got a response. Only later did the workers get in touch with the Panyu Workers Centre for assistance. In the Lide case, however, when the workers discovered that management was cutting back on orders, transferring equipment and showing other signs of relocating operations, they quickly got in touch with the Panyu Workers Centre and sought assistance.

Although the resources and capabilities of labour NGOs are limited, they have always been committed to supporting the workers. As such, after many years of providing legal assistance and other services for workers, the more successful NGOs have won the respect and trust of workers in the surrounding areas. Workers feel that labour NGOs are trustworthy and can be counted on to back them up when labour disputes arise.

Helping workers package demands and get organised

After launching collective action, workers often run into technical difficulties, typically resulting from the complexity of their demands, poor organisation, the presence of “freeloading” co-workers lacking true commitment, and their inability to follow up collective protests effectively. After a labour NGO intervenes in a dispute, it will first appraise and sort through the workers’ demands, and help package them into the most effective structure. This has the effect of uniting the workers around specific attainable goals and deepening the level of organisation.

In the Citizen case, the Laowei lawyers swiftly consolidated various collective grievances into one key demand that management include the workers’ daily 40-minute rest break as worktime, as legally required, and pay corresponding overtime arrears for the previous five years. The Panyu Workers Centre distilled the University Town workers’ grievances into two key demands; that workers be allowed to continue working in the local area and not be transferred to distant locations as the company demanded, and that their employer, GrounDey Property Management, compensate them for termination of their employment contracts. In the Lide case, the workers got in touch with the Panyu Workers Centre before taking any collective action. The staff at Panyu helped workers finalised their demands and thus, as soon as management expressed a willingness to negotiate, the day after the strike broke out, the workers were able to quickly present their 13 collective bargaining demands, including payment of social security and housing fund contribution arrears, payment of overtime and high-temperature allowances, paid annual leave and maternity leave benefits.

All too often, when collective protests break out, management and local government authorities are faced with a complex and uncoordinated series of demands and are thus unable to react appropriately. Indeed, they often take a resistant and repressive stance. By helping workers to package their demands, labour NGOs can unify workers into a collective and embolden hesitant workers who might fear management reprisals or legal sanction. After the consolidation of initially disparate demands into an integrated package, workers not only gain an understanding of the legal basis of their demands, but also of the reality of labour relations and the separate interests of capital and labour. Consequently, angry workers who were “like a heap of loose sand,” hampered by their own sense of helplessness and vulnerability, begin to develop a class consciousness and take on a new worker identity, one with socialist values. This is especially valuable in this time of rampant self-interest, universal obsession with money and chaos in moral values.

Helping workers elect their own representatives

At the beginning of any collective protest, certain workers have to assume the tasks of liaising, mobilising and organising. But because they are not trade union officials, they have no way of obtaining legal protection. As a result, many workers are reluctant to step forward and management has no one to talk to in the bargaining process. Sometimes workers claim that “there are no representatives” or that “we are all representatives.” Labour NGOs recognise however that when large numbers of people are involved, there is a need for clearly identified worker representatives within an overall leadership team. Therefore, after they have packaged the demands, the second task facing labour NGOs is giving guidance to workers in the process of electing collective bargaining representatives.

In the Citizen case, Laowei lawyers guided the striking workers in electing a total of 12 representatives drawn from the various production departments. In the University Town dispute, staff from Panyu organised striking workers and got them to hold meetings at which they elected a team of 18 worker representatives. Later, another worker representative meeting was convened, and a chief representative was elected, along with five bargaining representatives and three representatives to review expenses. In the Lide case, which involved nearly 3,000 employees, the Panyu NGO helped workers elect 65 worker representatives. After the first strike in December 2014, the workers elected 13 negotiators from among the 65 representatives. In the second stage of the protest, following the failure of some worker representatives to properly perform their duties, Panyu staff helped the workers hold another election, and 19 collective bargaining representatives were voted in.

In some cases, worker representatives cannot be found while in others the status of the worker representatives is not clear. There are also cases where some particularly audacious workers stand up and represent themselves. Rarely is there any formal electoral process, and still less any delegation of authority by the workers. This particular issue often results in collective protests by workers rapidly descending into disorder and chaos. After workers elect their own representatives under the guidance of labour NGOs, this disorder and chaos is transformed into relatively orderly solidarity, which then establishes the necessary preconditions for the initiation of collective bargaining.

Because worker representatives do not have the same legal protection as trade union officials, labour NGOs make sure that as many workers as possible sign a document authorising the elected representatives to act on their behalf in negotiations with government officials, management and official union staff, and sign agreements on their behalf. This gives the representatives better legal protection but also burdens them with the responsibility of fighting for and protecting the rights and interests of the workers. The workers on the other hand must accept the leadership of the representatives and are duty-bound to protect them. Workers have the right to remove representatives through due process if they are incompetent or unwilling to fully commit to their role. However, practice has shown that most representatives are able to take on their role effectively and stand firm in the face of threats from management and the authorities, and as such gain the support of the workers.

Training worker representatives

After worker representatives are elected, they face a wide range of issues: how to make policy decisions that satisfy the workers; how to prevent divisions arising among the workers; how to ensure a rational dialogue and conduct good-faith bargaining with management; how to make concessions and compromises during bargaining and still maintain their bottom line, and how to keep workers promptly informed with progress updates.

However, the majority of worker representatives do not have any experience in collective bargaining, and some may even lack a basic understanding of its precepts and workings. Under such circumstances, labour NGOs need to provide training on the principle of equality between labour and management in collective bargaining, the responsibilities and obligations of worker representatives, bargaining techniques, the stages and the rules of bargaining, legal provisions, and the principles of concession and compromise.

In the 2011 Citizen dispute, Laowei lawyers headed the bargaining team representing the workers, so providing training to worker representatives was not a top priority. In the other two cases however, staff from Panyu made training a key focus of their work. They arranged ten training meetings with the elected representatives of the University Town workers during which they were able to gradually learn about the significance, procedures, techniques and rules of collective bargaining. In the Lide case, Panyu staff helped representatives convene a meeting of workers from the various workshops, held six roundtable sessions for representatives, one preparatory meeting for a workers’ assembly, two plenary meetings and two roundtable sessions for bargaining representatives.

After a series of training courses, the worker representatives were able to understand their roles and carry out their duties; present the collective demands of workers in a coherent manner, stick to the bottom line in a reasonable, grounded way and accurately gauge the extent and timing of concessions and compromises. It was because these worker representatives performed so well that most of the workers’ collective demands were satisfied in these cases.

Helping and guiding workers during the collective bargaining process

Once a bargaining proposal has been submitted to management and collective bargaining initiated, the labour NGO will continue to provide guidance to worker representatives at the bargaining table. Labour NGO staff know that one of the main reasons why confrontations between labour and management often escalate to the point where dialogue breaks down and protests erupt is the arrogant and blunt measures management uses to peruse its narrow, short-term interests. In order to prevent unnecessary clashes with management flaring up during the bargaining process, labour NGOs stress that bargaining representatives should always maintain a reasonable attitude and be respectful during the cut and thrust of bargaining. In particular, representatives are taught to refrain from using emotional or demeaning language at the bargaining table and during strike action. This focuses the discussion on issues, not individuals, and helps create a basis for long-term mutual trust and respect.

In the Citizen case, the highly experienced director of the Laowei Law Firm, Duan Yi, not only acted as chief negotiator for the workers but also advised both parties on determining the number and composition of bargaining representatives, the eligibility criteria of the observers, the mechanisms for suspending talks, rules for third-party participation, and rules of conduct at the bargaining table, and other matters. Duan also played a mediating role between bargaining representatives with differing opinions and kept the workers informed of progress at each stage of the bargaining process.

In the University Town dispute, two Panyu staff were hired by the workers as bargaining consultants. In the early stages, management took a hard line and put the worker representatives under pressure. Only later, with the mediation of the local government, did they reluctantly agree to start talking to the worker representatives. During the bargaining process, management continued to dig their heels in, and sabotaged many meetings by failing to attend. In response, the Panyu Workers Centre took measures to boost workers’ morale, and staged continuous strike action to force management into making concessions. After 12 days of strikes, the management were finally forced to reach an agreement with the worker representatives.

During the Lide dispute, Panyu staff helped worker representatives prepare the proposal for collective bargaining. This led to an agreement on overtime pay, high-temperature subsidies, annual leave arrears and other matters, however, management refused to bargain on key issues like social insurance contributions and long-service pay. Some of the worker representatives were unwilling to continue due to the threats and blandishments of management and so Panyu staff promptly organised another election to vote in new worker representatives, and adopted a strategy of relaunching strikes and picketing the factory, to compel management to return to the bargaining table.

When guiding workers in collective bargaining, the precept that Labour NGOs adhere to is that any clash of interests between labour and management can be fully resolved through good-faith bargaining on both sides. The role of the Labour NGO is as an advisor who can help mediate disputes between the worker representatives and the workers about whether or not to give concessions or make compromises, or offer recommendations and solutions when worker representatives run into problems during negotiations. When worker representatives are subject to management’s retaliatory measures or government pressure, Labour NGO’s offer staunch support.

Protecting worker representatives

Workers who take on the responsibility of representing their colleagues in collective bargaining are often subject to threats and intimidation by management and local government officials who want the dispute supressed as soon as possible. Labour NGOs recognize that protecting workers’ representatives is a key part any collective worker protests, and have done a huge amount of work in this regard. When worker representatives are subjected to threats and retaliatory measures, labour NGOs can mobilise workers to “rescue” representatives who have been detained, take legal action against the authorities, defend worker representatives in court, and fight for their right to return to work or obtain compensation for unfair dismissal.

During one meeting of the Lide workers in April 2015, for example, police dispatched nearly 100 officers to surround the venue, and took away several worker representatives and one Panyu staff member. The NGO then mobilised the workers for a “rescue” operation. Several hundred of them gathered in front of the local police station and kept up a chant of “Let them go,” forcing the police to release the detainees after only a few hours.

In carrying out the work of protecting worker representatives, labour NGOs have greatly boosted the morale of both workers and their representatives, deepening the solidarity between them.

Concluding observations

Looking at these three cases of collective bargaining, spanning a period of five years, we can see a steady increase in the role of worker representatives during the process, and that workers have increasingly acted independently in resolving disputes with management through collective bargaining. To recap, in 2011, the Citizen workers hired lawyers to serve as representatives in bargaining with management, the University Town workers worked together with NGO staff in bargaining but in the Lide case in 2015, it was the worker representatives themselves who led the bargaining with the NGO playing a supporting role from behind the scenes.

This shows that with the help of labour NGOs, workers are now fully capable of transforming the initial stage of collective protests, largely driven by emotion, into a process of rational collective bargaining. In this process, an external organisation such as a labour NGO is exactly what workers need in order for them to understand and appreciate the importance of negotiated settlements, and to get the training they need to achieve their goals through the process of bargaining.

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