The 2008 Labour Contract Law was designed to give better legal protection to ordinary workers. However, from the very outset, unscrupulous employers sought ways to get around the law and evade their legal obligations. One of the most common dodges has been to dismiss employees and rehire them as labour agency employees with fewer benefits and less job security. And some of the worst offenders in this regard have been state-owned enterprises and government institutions.
In the spring of 2013, a local government department in Xinjiang joined the list when it asked its drivers to sign contracts with an employment agency. The drivers refused, demanding instead that they should be given contracts signed by their direct employer, the local government.
A few months later, one of the drivers’ representatives talked to China Labour Bulletin Director Han Dongfang about their efforts to defend their legal rights and the relative merits of legal action, public protest and collective bargaining as a means of obtaining their goals.
Siphoned off to a labour agency
The Xinjiang drivers thought of themselves as civil servants. After all, they worked for the local government and drove government cars. As such, they reasoned, they should be entitled to the same salary and benefits as civil servants of the equivalent rank. However when they demanded a commensurate pay increase in 2012, the local government just stonewalled.
Then in early 2013, the government, through an agent, made a counter offer. The drivers would be reassigned to a labour agency but their conditions of employment would remain unchanged. The drivers were rightly suspicious and, despite sustained pressure from the government’s agent, the drivers declined the deal.
The government agent tried to mislead us into signing a contract with the labour agency. However, one of the older workers made reference to the relevant provisions in the labour law, and another worker said that we should only sign a contract with the our direct employer, the local government, and he insisted that the labour agency should not be a party involved in this matter. The agent did not insist. He took minutes and left to get his supervisor's response.
The drivers had a strong legal case. Of the 129 drivers employed at the department, only the most senior driver, who started working back in 1997, had actually signed a written contract. His contract was dated 2002 and had not been renewed. None of the other drivers, despite working for the department for many years, had ever entered into any kind of formal employment agreement.
We asked the senior workers why everyone just made an oral agreement instead of putting all the contractual terms on paper. They just said that such a practice was the norm.
The government agent had tried to convince the drivers that because they currently had no formal contact at all, they would actually be better off if they signed a contract with the labour agency. Strictly speaking, this was not a false claim. By contracting with the labour agency, the drivers would at least be given a legally enforceable instrument.
The government agent said that after contracting with the labour agency, we would have a formal employment relationship and our livelihood would be more secure.
However, the drivers cast doubt on the legality of signing a long-term employment contract with a labour agency. They pointed out that Article 66 of the revised Labour Contract Law stipulated that agency workers were by their very nature temporary, and that the duration of employment should not be more than six months. Moreover, Article 14 of the Labour Contract Law stipulated that workers who had worked for one employer for a continuous period of more than one year were to be regarded as having established an unlimited contract with that employer. In other words, for the drivers to enter into contract with the labour agency, they should first be formally dismissed by their employer. And under the terms of the Labour Contract Law, all the drivers would then be entitled to substantial compensation for their “dismissal.” The exact amount would be determined by their length of service.
Public protest or judicial process
In order to press their case for proper employment contracts - with their employer rather than an employment agency – the drivers considered staging a public protest should the negotiations with the government break down. They thought that by taking to the streets, the public would be made aware of their grievances and the local government would be put under pressure to resolve the issue. Han Dongfang, however, advised caution:
If the matter was brought to the street, it would invite criticism. People might condemn you for disrupting social order causing political trouble. Strategically speaking, it would be imprudent of you to protest in the street before exhausting all other means.
As an alternative to a street protest, Han recommended that the drivers make good use of social networking websites such as Weibo to keep their followers updated of the progress of the case and increase the transparency of the negotiations.
However, the drivers’ representative feared that such disclosures might break the trust between the two negotiating parties. For the time being, the drivers felt that it was best to keep their negotiations with the government low-profile and avoid making the case too contentious.
Although the drivers still seemed convinced that a street protest was the best move if negotiations failed to get their desired result, Han suggested that going through the judicial process would be more effective.
In my opinion, you should not go on strike even if you can’t reach a compromise agreement. You can settle the matter in the court! There are other means such as arbitration and administrative appeal. It seems inappropriate to bypass all those alternative proceedings and jump straight into a street protest.
The drivers, however, were not convinced that the judicial process was of any real use: “It is the government who promulgated the law, and it is also the government who enforces the law and adjudicates the cases," the representative said.
This pessimistic attitude was based on bitter experience. In 2009, the representative had witnessed the failure of law enforcement in another incident. In that case, some workers who had reached 50-years-of-age were forced to retire. Although it was a clear case of unreasonable dismissal, the law and the judicial process was of no help, and the older workers had no choice but to accept their fate. Since then, the representative said, he had lost confidence in law enforcement.
Some cause for optimism
Despite this negativity, The Xinjiang drivers’ contract negotiations with their employers can still be seen as progress, especially when compared to the dismissal of the older workers in 2009. In many ways, the fact that drivers’ representative were able to negotiate with the agent of their employers in a friendly and respectful manner should be regarded as the fruit of a strengthened civic society.
Alongside the less contentious atmosphere, a proto-democratic system evolved as workers were able to appoint their own representatives:
We sit together and voice whatever opinions we have. During this process, some of the drivers spoke up and were able to express the majority view. We therefore appointed them to be our spokesmen.
The negotiations could be seen as an embryonic form of collective bargaining. However the appointment of representatives was a rather informal and not very transparent process. In order to advance the process, it was suggested that the representatives should stand for election. This would make them more accountable and give them greater authority and recognition in the negotiations with the local government.
This interview was first broadcast on Radio Free Asia's 劳工通讯 in seven episodes in June 2013. And for more information about the revised Labour Contract Law please see China curbs its enthusiasm for the new Labour Contract Law and CLB urges the Chinese government to further restrict the use employment agency labour, posted in August 2012.