Suffocated by the system

16 April 2010

Over the last decade, Lucky Jewellery, a Hong Kong-invested company in Guangdong, has become a byword for the obstacles and injustices faced by the victims of occupational disease in China. It is one of a clutch of gemstone-processing factories around Huizhou and Shenzhen whose workforces have been ravaged by silicosis, a form of pneumoconiosis acquired by inhaling fine particles of silica dust over time. The disease advances slowly, reducing sufferers to gasping, coughing wrecks. It is incurable.

Dozens of workers at Lucky Jewellery have been diagnosed with the illness and have tried to get compensation. Few received more than a stopgap sum that would only last them a few years. Many got nothing. Because the illness often manifested after they left the company, Lucky Jewellery was able to reject the blame and avoid compensation claims. In this, it was abetted by local authorities, arbitration and court officials.

China Labour Bulletin has provided legal assistance to more than 40 workers who contracted silicosis at Lucky Jewellery, in all cases rural migrants from inland provinces such as Sichuan, Hunan, Jiangxi and Henan. Early this year CLB sent case data about Lucky to MCH Messe Schweiz (Basel), the organizer of the Baselworld Watch and Jewellery Show, which subsequently banned Lucky from the March exhibition. “This behaviour, at the cost of workers undoubtedly suffering from a grave illness, risks harming the image of all parties involved. We refuse your application and we do not admit Lucky to Baselworld 2010,” MCH Messe Schweiz told the company.

In early 2009, CLB Director Han Dongfang spoke to two workers, Xiong Gaolin and Chen Shisheng, about their ordeals at the factory and how collusion between business and local government had stymied their attempts to get the compensation they were legally entitled to. Chen and Xiong are also quoted at length in CLB’s forthcoming research report The Hard Road: Seeking justice for the victims of pneumoconiosis in China to be published 26 April.

A “winter fog” of dust

Lucky Jewellery produces gemstones used in furnishings, craft goods and other decorative products that are exported to major markets like Japan and the United States. These luxury items were, until very recently, produced however in conditions of mediaeval squalor. Xiong Gaolin described the conditions when he first joined the firm as stone cutter in 1997, breaking large rocks down into smaller workable pieces:

You could see clouds of dust in the air. A layer of dust would gather on the machinery in one or two days. There was no ventilation and we had no cloth or gauze dust masks. When we were cutting, the water we used was all stagnant water from the surrounding countryside. There was no running water. The atmosphere in the whole workshop was like a winter fog.

The company only introduced face masks and other protective equipment, at the employees’ own expense, in 2001. This was a boom time for the company, with the workforce rising as high as 4,000. At the same time, the first cases of silicosis were diagnosed among its workers. As the problem spread, the company took measures to avoid compensation liability. Operations were relocated from Shenzhen to nearby Huizhou and then from Huizhou to Haifeng, a suburb of Shanwei city on the coast. Each time, the company changed its name.

Xiong began to feel unwell in 2007, and, following a referral from a local hospital, he had two checkups on 15 July 2008, one at the Guangzhou No. 12 Hospital and the other at Guangdong Provincial Hospital for the Treatment and Prevention of Occupational Disease. Both diagnoses found an “increase and thickening of markings” and “hollowness” in his lungs. Further testing after three months was recommended. Xiong then asked the factory management to hand over his medical records and other documents needed to confirm an occupational link under the provisions of the Work-related Injury Insurance Regulations. The factory refused, saying his disease had nothing to do with them. So began Xiong’s struggle with his bosses and local bureaucracies.

The procedure for claiming compensation for work-related injuries and occupational disease in China can be dishearteningly complex. Following initial diagnosis by a general physician, a second diagnosis (确诊) confirming an occupational link is needed from an officially accredited hospital, in this case Guangdong Provincial Hospital for the Treatment and Prevention of Occupational Disease. Within one year of getting this written certification, the worker or a close relative must then apply to the local Human Resources and Social Security Bureau for certification of a work-related injury or disability (工伤认定). This is the key document, enabling official classification of incapacity and application for welfare benefits, both complex processes in themselves. If an application is rejected, the affected worker must first go through the local Labour Dispute Arbitration Committee (LDAC), whose rulings are non-binding. Only if that fails can he or she proceed to civil litigation.

Unable to get his employer to hand over the medical records needed for the formal diagnosis, Xiong found himself being shunted from office to uninterested office.

I went to the Haifeng Health Inspection Department, they reviewed the results of the first test in August 2007, and said there was no problem -I had only swallowed a small amount of dust, and it would go away. So then I went to the Labour Bureau, and the deputy bureau director said this was nothing to do with him and sent me back to the boss of the Health Inspection Department. They said my x-rays from the hospital tests were “inconclusive.” Both the Labour Bureau and the Health Inspection Department were trying to shirk responsibility, and tried to pass the buck to the county government.

Only after knocking on many doors was Xiong able to get Health Inspection Department officials to take his silicosis suspicions seriously. But the factory management continued to refuse to hand over the documentation he needed until, eventually, persistence paid off and the factory sent the necessary documents to the provincial occupation illness hospital. All of this was accomplished at Xiong’s own initiative and expense. Lucky Jewellery refused to reimburse him for the initial testing.

Illegal dismissals

Xiong’s health was now failing but his requests for sick leave were rebuffed. He asked if he could instead work in a new position, without exposure to dust. The management again refused, on the grounds that no suitable vacancy was available. So he continued working in the cutting shop. This was in clear breach of the Work-related Injury Insurance Regulations and other labour legislation, which require that any employee with a suspected occupational illness must be placed in a different position by the employer as quickly as possible.

Xiong described at length the various ploys the management used to avoid the mounting pile of potential compensation claims it faced as its workers sickened. Starting in 2001, after the move to Huizhou and introduction of facemasks, management began arranging worker checkups at Huizhou Huikang Hospital. The motive was not as altruistic as it seemed. After the 2001 checkup, Xiong said, “they dismissed a lot of people who were found to have lung problems. They were sacked on any pretext management could find.”

This tactic was repeated in 2007, when management took employees off to the Haifeng County Centre for Disease Treatment and Prevention.

All those who had symptoms had to write resignation letters. They were told that they would get three months’ wages as compensation if they did so but would get nothing if they refused.

In January 2008, one worker refused to write a resignation letter, and the factory unilaterally terminated his employment contract. As for those who did comply and write resignation letters, “they all left,” said Xiong. Two of them later went to the Haifeng County LDAC but it would not take the case on because the resignations had been “voluntary” and “compensation” had been paid in the form of a few months’ wages. No matter that dismissing an employee suspected of having an occupational illness was against the law. “The factory did not care whether or not it was acting illegally,” Xiong said. “If you got sick, they fired you.”

Not everything went Lucky Jewellery’s way however. With so many sick workers protesting, the health authorities stepped in during the company’s Huizhou period and fined it for failing to meet health and safety standards. This led to some improvements in factory conditions. As the decade wore on, and the plant moved to Haifeng, the enterprise experienced more and more financial problems. In July 2008, the factory started to withhold wages, and in September, the entire workforce went on strike over wage arrears. The factory had to be bailed out by the county government, which allegedly appropriated four million yuan for the purpose. By this stage, the workforce had fallen below 1,000.

Xiong was convinced the Guangdong Provincial Hospital for the Treatment and Prevention of Occupational Disease was acting in cahoots with Lucky Jewellery, if not actually receiving bribes from the factory, not to issue confirmations of occupational disease:

This hospital tested two of us at the factory several times at three-month intervals, and produced written reports stating that both lungs showed the characteristic increase and thickening of markings, fluffy mass, and little shadows. But it never offered an opinion as to whether there was an occupational link.

It was not until 19 January 2009, that Xiong got a call from the hospital confirming his occupational disease diagnosis, stage one-plus silicosis. The written confirmation had been sent to the factory, where it had been ignored. When Xiong approached management they told him rest at home. “They said that if I had the written verification of diagnosis, then I did not need to come to work. Nobody with a [confirmed] occupational disease has ever worked at that factory.”

For Xiong, the battle was only half over. With the issue of the written verification, the factory was now only interested in getting him off the payroll. It took the initiative in applying for Xiong’s labour capacity assessment at the Haifeng Labour Bureau. This placed Xiong in a dilemma. His signature was needed for the paperwork, but he feared that if he signed he might be sacked and would not be eligible for a necessary but expensive lung lavage treatment at company expense. Xiong has so far received no treatment: “I cannot afford to take the drugs I need,” he said. He is now on unapproved sick leave and his lawyer is reluctant to initiate arbitration until Xiong’s final confirmation of occupational illness has come through. At the moment, that depends on Xiong’s signature.

Unions no help

One organization conspicuously absent from the workers’ struggle at Lucky Jewellery was the trade union. Xiong explained:

It was set up by the management, and is certainly in their pocket. It cannot help us. As far as I know it was never registered at the local county. The chairman was installed much as the factory saw fit; he is a deputy production manager of the plant.

The county federation of trade unions referred Xiong to the Civil Affairs Bureau, and the Shanwei municipal federation of trade unions referred him to the Labour Bureau, who referred him to the Health Inspection Department. Not one union organisation made any attempt to represent Xiong in negotiations with management, or indeed investigate why medical treatment had not provided, as required by law, or why sick workers were not offered safer jobs.

Difficult as his position seems, Xiong does at least have one trump card: he is still nominally an employee of the company. Many other victims of silicosis at Lucky Jewellery were dismissed or left Lucky Jewellery long before confirmation of their diagnosis of occupational illness, making the compensation claims still harder to press. Chen Shisheng is a case in point.

Chen first started working at Lucky Jewellery as a security guard in 1989. The following year, he met and later married Ran Qimei, a co-worker from his hometown in Jiangxi. After moving back home for a while, Chen returned to Lucky Jewellery in 1997, this time as a stonecutter. While his wife worked on pre-processed stones, Chen handled larger rocks, some of which weighed over two tonnes. He worked with a chainsaw, breaking down boulders into smaller pieces.

When we first joined the factory, the dust was dreadful. In the morning, when you went to work, your hair had turned white by lunchtime. We knew nothing about work safety regulations or occupational illness.

Like Xiong, he worked without any kind of dust-suppression equipment or protective gear. This state of affairs persisted until 2006 when masks, earplugs and gloves were introduced into his department (five years later than in Xiong’s department). But by this stage, Chen was beginning to show the first signs of illness. A health check undertaken at his own initiative at a clinic in Guangzhou resulted in a diagnosis of suspected occupational illness. The company began to pressure him to leave. Chen resisted.

I got in front of the company chairman’s car and would not leave. I said you want to sack me even though I have been working here more than ten years and my health is not good. If you sack me, I said, that would be a contravention of the Labour Law. The boss told me to get somebody from the factory to take me to the Guangdong Provincial Hospital for the Treatment and Prevention of Occupational Disease. If you really have a problem, he said, we should be able to sort something out.

But here, Chen ran up against the same problem as Xiong.

Somebody from the factory accompanied me, and when we got there, he told me to wait downstairs. While I was waiting, he went to the hospital director, and had words with him. I knew what was going on. A lot of people know that Lucky Jewellery and the occupational health people are in cahoots.

Despite increased markings and shadowing of the lungs, the hospital again did not confirm that this was a result of occupational illness. At the Guangzhou No. 12 Hospital, where the first diagnosis was made, the doctor refused to confirm an occupational illness for fear of falling foul of the provincial hospital. “He said he did not dare to tell me his conclusion.”

Pressured to leave

Meanwhile, Chen requested a change of post, to get away from the dust.

Originally they wanted to send me to a department with very low wages, only a few hundred yuan a month. The boss said, if you do not like it, you know where to go… I ended up as a janitor. But I still refused to leave. I had made applications [for occupational illness certification], and I was determined not to leave.

One year later, in January 2008, management was getting impatient.

They started looking for outside help to get rid of me… They just said, ‘we don’t want you and if you don’t like that, we will go to the Labour Bureau and make a complaint against you’… Later, I was at my workplace, and they called the security guards. The head of the squad called me out. There were several people waiting for me. I did not know what was going on! They grabbed me and bundled me into a car, telling me to get lost. They looked like officers from the local police substation.

In the end, in 2008, management said they would unilaterally terminate Chen’s employment, and added a promise to “square up all wage matters and other things,” if he would go quietly.

Under the law, that would have meant that I was leaving the factory of my own volition. I took the money. I know the factory should not have been able to dismiss me, because at that time I had health problems, and that is not allowed under the Labour Law. But in the end, I had no option.

Chen’s next step was to apply for arbitration to restore his labour relationship.

But the arbitration people were in league with the factory... at first I was hopeful, because the LDAC chairman asked the company, why was he sacked, he is sick, why did you sack him?... The lawyer representing the factory could not answer.

But the ruling still went against Chen. He then appealed to Haifeng County Court. “They said they would give me a result within three months. But the court proceedings dragged on for over a year.” Chen said his evidence was ignored, and on one occasion he lost his temper, demanding of court officers, “what kind of justice is this?”

“When I did get the ruling, in 2009, they upheld the decision of the arbitration panel.” A lawyer acting on behalf on Chen said that further legal action would be almost certain to fail.

Chen’s wife Ran Qimei has also been diagnosed with silicosis, and they have run up huge medical, legal and travel expense bills, and have had to borrow at least 20,000 yuan. Chen is a boiler operative now, a job that no longer entails contact with dust but pays little more than 1,100 yuan a month. This has to cover all the household costs, including his own and his wife’s medical care and the education of their two children, aged 15 and seven.

Han Dongfang’s interviews with Xiong Gaolin and Chen Shisheng were broadcast over ten episodes during May 2009. To read the full Chinese transcript or listen to the audio file of the broadcast please go to the workers’ voices section of our Chinese language website and follow the links.

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