Fifteen minutes of fame. Three years of waiting

15 March 2014

On New Year’s Day 2011, the remote and desperately poor Gansu township of Heisongyi made headlines in China when a group of activists and journalists organized a banquet for more than 300 local workers and their families. All of the workers were suffering from the deadly lung disease pneumoconiosis and the publicity generated by the event forced the local government to take action and provide financial and medical aid to hundreds of victims in the county.

One of those at the banquet was Zhao Wenhai, who like many others had spent several years working in the gold mines of Gansu. The government arranged a check-up for him which confirmed that he was suffering from terminal stage pneumoconiosis. However, he still had to go through an arduous legal battle to get compensation, and even after he won, he was soon back in court filing a lawsuit against the government for its refusal to authorize the lump-sum payment of the full compensation amount. Judgment was supposed to be handed down within three months but five months after filing the case all the court could tell Zhao was that: “The circumstances are complicated.”

In January 2014, Zhao talked to China Labour Bulletin Director Han Dongfang about his work in the gold mines, the lack of government monitoring and supervision, and how his long struggle for compensation had strained his faith in the Chinese government and the legal system.

Zhao Wenhai worked in a gold mine run by Gansu’s Second Geological Exploration Institute for six years from 1998 to 2003. He earned between 2,000 and 3,000 yuan a month, a reasonable income at that time, but Zhao knew the work was inherently dangerous and that by working there he was “meddling with life.”

He worked about 15 to 16 hours on average each day in the mine, always enveloped in a cloud of rock dust created by the pneumatic-drills. The only protection he and his co-workers had was a flimsy dust mask. At one point, the workers tried to set up a water supply system in the mine so that they could dampen the rock surface and reduce the amount of dust created by drilling:

The sub-contractor refused to set up a water supply for us…since he did not want to bear the costs… He did not support us either when we told him that we would install a system ourselves. We did manage to get water, for two or three days; then it stopped coming in. We could not get hold of a pump so it was tough work getting water in.

Failure of local government to ensure mine safety

Government departments in charge of labour affairs, including the Administration of Work Safety and the Department of Human Resources and Social Security, never fulfilled their statutory duty in regularly testing the dust intensity in the mine. The workers were never trained on the dangers of and prevention of occupational diseases. Zhao left the mine in 2004 without even learning the name of the disease that would plague him for the rest of his life.

Before long, however, the symptoms of pneumoconiosis began to appear:

Not long after I started running a van services business, I started coughing uncontrollably. At first we thought that I just caught a cold… That was in 2005.

Zhao finally went for check-up in 2007 but was misdiagnosed twice as suffering from tuberculosis. He was treated for TB for the next two years and as a result his condition obviously only got worse. In 2009, Zhao was finally diagnosed with Stage 3 - terminal stage - pneumoconiosis in a mass check-up arranged by the government. But it was only in 2011, after the publicity created by the New Year’s banquet that Zhao decided to claim compensation.

Zhao and his colleagues hired a lawyer who specialised in work-related injury claims but he was forced to drop the case after being threatened by the local authorities. Then, on a trip to Beijing to seek help from the Yilian Legal Aid Centre, Zhao attended a conference where officials from the All-China Federation of Trade Union suggested that the workers seek damages directly from the Institute even though they had not signed an employment contract with it and were technically employed by the subcontractor. However the Institute was reluctant to accept any responsibility:

We approached them several times. Every time they would just deny their responsibility and refer us to the subcontractor… The subcontractor turned out to be dead already, also because of lung dysfunction… At that point, we had run out of options and could only resort to arbitration.

The workers’ quest got off to a false start however because they tried to get compensation before proving that they had an employment relationship with the Institute. But through trial and error and several arbitration committee and civil court hearings, Zhao finally obtained legal recognition of the fact that he had been employed by the Institute. On appeal, the Intermediate Court ruled that:

The Institute could not outsource work involving occupational hazards to unqualified persons… Hence, the employment contract between the subcontractor and me could be used to prove that employment relations existed between the Institute and me.

Calculating compensation

Yet the victory created more problems than it solved. Zhao mistakenly used the already defunct Gansu Provincial Regulations on Work-related Injury Insurance for Rural Migrant Workers (甘肃省农民工参加工伤保险办法) to calculate that he should be paid a lump sum compensation package of 1.44 million yuan. Under the current laws, Zhao reckoned he was still entitled to about 800,000 yuan in total. However, because he was classified as having the most severe Grade One work disability, he could not get paid in one lump-sum. In other words, the regulations specified that relatively high levels of compensation had to be paid in instalments. Zhao estimated that he only had one or two years left to live and as such, would only actually only get about 10,000-20,000 yuan. After his death, Zhao would leave behind a wife with disabilities and two school-age children. He decided to file for a judicial review in an attempt to get payment of the full amount in one go. But he was not so hopeful this time around:

I was rather optimistic (about the appeal) because that is the law of the country. Of course I was optimistic since there was such a great law code put before me. But that just does not work out in reality…

Since the prospects of a traditional work injuries compensation claim were not looking good, Han suggested that Zhao could look into an alternative approach:

Have you ever thought of applying for personal injury damages or state compensation? You are disadvantaged because of the strange laws that allow those suffering minor injuries to get lump sum payments but not those who were suffering from more severe disabilities…You can argue, alternatively, that you workers suffered such severe damage…because the labour and work safety authorities failed to discharge their duties such that administrative inaction was the major cause of your suffering. Then you can apply for judicial review on grounds of administrative inaction. If you can win that case, you can even apply for state compensation.

Zhao was interested in the idea but felt that the government was erecting barriers for workers who tried to protect their rights via legal means, and that was especially true for impoverished citizens with disabilities like him:

The government has just paid lip service to protecting people’s rights. They did nothing of substance.

This interview with Zhao Wenhai was first broadcast on Radio Free Asia's 劳工通讯 in nine episodes in January 2014.

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