Eighty-three automobile workers from Chongqing have collectively sued the official municipal federation of trade unions for neglect of its legal responsibilities, although the court has not yet officially endorsed the lawsuit.
"What are the responsibilities of a trade union?" asked Zhou Litai during an interview in his office in Chongqing with a reporter from the Southern Metropolis News. This question has become a burning issue for Zhou, a lawyer specializing in labour disputes. In January 2005 he decided to take the matter to court.
The incident which finally triggered his decision took place in December 2004. Zhou had agreed to represent 83 workers in their case against their employer, Chongqing Changan Automobile Company Limited [Changan Company], in which they are disputing compensation and insurance payments.
The workers are employed in the Polishing and Planishing Sections of Work Unit No 33 at the Changan Company factory. Polishing and planishing pay about 18.5 Yuan a day, that is up to 2,500 Yuan a month, and 4 Yuan a day, that is 700 to 800 Yuan a month, respectively, which are acceptable wages in China. The workers' grievance was rather one of discrimination. Mostly migrant workers, they were doing tougher jobs but being paid less than non-migrant workers. There are some 230 workers in Work Unit 33, and 210 of them work as polishers and planishers. In December 2004, 83 of them (50 polishers and 33 planishers) decided to take legal action.
They got in touch with Lawyer Zhou, who immediately agreed to handle their case for a reduced fee. "It [35,000 Yuan] covers all court hearings, travel expenses, etc. They are migrant workers with very low salaries, so I charge them much less than the going rate," said Zhou.
On 22 December 2004, the workers requested the Labour Dispute Arbitration Committee to order their employer to pay their social insurance contributions and overtime wages which they were owed. However, the Committee's first action the following day was to send the workers a bill for a handling charge of 210,838 Yuan.
According to the list of charges posted outside the committee office, handling charges [per person] vary from 529 to 4,580 Yuan. Workers were being asked to pay 2,540 Yuan each for the arbitration, a sum which was difficult for them to raise. According to the "Workers' Rights Protection Regulation," passed by the Chongqing Municipality People's Congress in December 2002, Article 44 allows workers to apply for legal or arbitration charges to be waived or delayed upon proof of "financial difficulties." The application is made through the local trade union at county level or above. On 27 December, Lawyer Zhou accompanied the workers to Chongqing Municipal Federation of Trade Unions to seek its assistance.
The meeting eventually turned rowdy, however, when Lawyer Zhou and a member of staff from the trade union's legal affairs department each objected to the attitude of the other as being "unhelpful." Finally, workers were told by the department head, Zhao Mingsheng, and a trade union facilitator, He Liqiong, that the municipal trade union would not process their application. They were told to go to the Jiangbei District Federation of Trade Unions, where their factory was located, to apply for proof of their financial status and therefore exemption from payment of the arbitration fee.
On leaving the trade union office, Lawyer Zhou and the workers decided to sue the trade union. They posted the Arbitration Committee charges list and their application for assistance to the trade union by express mail, as evidence that they had formally applied for the trade union's services.
On 4 January 2005, the 83 workers filed a collective lawsuit at Chongqing No. 1 Intermediate People's Court, against Chongqing Municipal Federation of Trade Unions, accusing the union of "neglect of legal duties." The workers believe it is the union's job to provide official proof of their financial situation and to pay the arbitration committee fees. On 5 January, a member of the court staff revealed that the court was considering hearing the case. On 6 January, Lawyer Zhou said he had received a positive reply from the court but that they had instructed him to raise the case at Yuzhong District Court.
What is the legal position?
Lawyer Zhou believes this to be the first case of its type. He wants to raise the awareness of the general public to consider the responsibilities of a trade union. According to Zhao Mingsheng, head of the legal affairs department of Chongqing Municipal Federation of Trade Unions, "the main duties of a trade union are rather clear: namely protecting workers' rights by legal means." He claimed that Chongqing Municipal Federation of Trade Unions is one of the more advanced unions in the Province. As proof, he refers to three sets of regulations that the union was involved in drafting, including the "Workers Rights Protection Regulation" quoted by Lawyer Zhou.
However, two months after the regulation had been passed, Chongqing Municipal Federation of Trade Unions issued an internal notification reinterpreting Article 44. Under the new interpretation only workers with urban resident status, entitling them to the local minimum living allowance, qualify for financial assistance. Application for legal fees to be waived or delayed must be accompanied by proof of this status. The application must be processed by trade unions at county level or above, in the county of the workplace. The assistant facilitator of the trade union's legal affairs department, He Liqiong, claims that this reinterpretation makes Article 44 more workable. "If everyone claims that he has financial difficulties, it would be very messy. So a clear definition is necessary," she said.
Lawyer Zhou finds this unfair. His argument is that as the function of a trade union is to act in workers' interests, it is this organization, rather than any others, that should be responsible for determining a worker's financial status, as it is stated in the original Article 44. By changing the interpretation, the trade union is failing its responsibility to workers. The new definition of eligibility leaves migrant workers, who are not urban residents, unprotected. "So what happens to migrant workers who need the minimum living allowance but are not allowed to apply for it?" Lawyer Zhou asks.
The municipal trade union replied that when the definition was drafted, violation of migrant workers' rights had not yet become an issue in Chongqing. It believed that if the 83 workers have financial difficulties, the [district] trade union would approve their application after consultation with labour departments.
"Why does such an application have to go through trade unions at district and county levels? What is the purpose of having a municipal federation of trade unions? Changan Company is a large scale enterprise. Why can't the municipal trade union deal with this case?" asks Lawyer Zhou. He gives several examples of his encounters with trade unions, saying that each time he tries to help the workers uphold their rights; the trade unions have been passive and unhelpful.
In 2001, Chongqing Municipal Labour and Social Security Bureau issued Document No. 70, declaring that courts and Labour Disputes Arbitration Committees would not handle cases in which an employee requests an employer to pay pension premiums. Lawyer Zhou argued that the document was illegal since the municipal labour and social security bureau does not have the power to deprive citizens of their rights to legal assistance in labour disputes. He urged the trade unions to stand up for the workers but they refused.
In October 2003, the Labour Dispute Arbitration Committee adopted a policy of charging fees for consultation, translation, document copying, transfer of case, stationery and travel expenses of examiners and translators in addition to the existing fees for appraisement, examination, travel expenses and compensation of the witness. As a result, workers who cannot afford these payments do not have recourse to the Committee's services. Lawyer Zhou quotes an example. A 66-year-old retired worker in Jiangbei District applied to the Committee to handle her request for a pension. The Bureau charged her 4,000 Yuan. "The payment is absolutely unfair," said Lawyer Zhou. He points out that her ex-workplace was in Jiangbei District, so the examiner has no reason to charge her for travel expenses.
Thus Lawyer Zhou's decision made on 27 December 2004 to sue the trade union was not made on impulse. After many disappointing encounters over the years, he has decided to challenge the trade unions.
Sources: Southern Metropolis News (7 January 2005)