WHO INFRINGE THEIR RIGHTS?

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A case violating the rights of migrant workers

Hatla Thelle Senior research fellow, Research department, Master of Arts Ph.D, Danish Institute for Human Rights ([email protected])

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Farmers in China have traditionally had a lower social status than urban people; their ‘quality’ is not considered as high as the one of the better educated city folks. To this vestige of imperial times has been added the communist household registration constraints, where urban status has become an unattainable dream for village people. To make matters worse the opening up of mobility opportunities during the reform period has added to the general disrespect of farmers, as they are allowed to enter the cities mostly to do dirty and heavy jobs on a temporary basis and then go away again. They are generally regarded as dirty, uncivilized and responsible for rising crime rates in the cities. As the following analyses will show most of the problems of migrant workers stem not from their household registration status but from poor implementation and poor design of various laws and regulations, notably those pertaining to labor relations. But their social background makes the migrants unable to effectively claim their rights as they are not part of a labor market culture, and thus among other handicaps are unfamiliar with relevant laws and regulations. So their social and cultural background is an obstacle more than their legal status as holders of a rural household registration.

One case will be discussed below with a view to identify the channels farmers can use to protest against violations of their rights and to evaluate the quality of the solutions offered by the relevant organizations, institutions or individuals.

Delayed payment case

Guo is a farmer from Hebei province. In October 2001 a construction company from Hebei (in the following called A) is looking for workers in the villages around Guo’s birthplace through an agent called Qu. Inquiring about the conditions of the employment Guo learns that Qu, who is hiring the new workers, in fact is contracting the job of building a storehouse in Beijing for a company based in a Beijing district (in the following called B) as an individual. Because the law[1] forbids individuals to enter into construction contracts Qu uses the name of company A, but in reality A has nothing to do with the job and the workers will work for Qu. He is what is normally called a ‘baogongtou’ (???)[2] or in English a hiring agent. Qu can promise Guo 40 yuan a day in salary and a small amount to cover living expenses. Guo discuss with his fellow villagers and 67 of them want to go. They arrive in Beijing and begin to work in 2001. The first thing they do is to ask Qu to sign a contract but he finds various excuses not to do so.

They start to work anyway. The conditions are very bad, no work safety measures and no insurance against occupational injury. The living expenses they were promised are not paid and after one month the work stops because materials are missing. They decide to quit and ask Qu to settle the accounts and pay them 33.000 yuan for the work they had done during the time they had been there. Qu answers that they cannot get their salary before the end of the year when the work has been completed, and they all return to their village with the oral agreement that they will get their salary before New Year.

Next year when no payment still has been made and Qu has made no attempt to contact them, Guo returns to Beijing and reports the matter to the Labor Bureau, but the officer there decides that the conflict is not a labor dispute (????) but a civil conflict about fees for labor services (???). The reason is that they have not been hired by company B, but by an individual, Qu. The Labour Bureau official says they have to go to court and sue Mr Qu. Guo goes to court, but the court clerk says it is a labor dispute and he shall go back to the Labor Bureau and ask for arbitration. Guo gets confused and decides to confront Qu directly again, but the latter keeps saying that he has got no money from company B yet. He promises that when the whole project is finished after one year he can settle his accounts with Guo. After one year Guo is again sent away with some bad excuse. Finally in December 2003 Guo in anger returns to Beijing with the other farmers. He has a white scarf bound around his forehead saying “Qu shall pay” and he finds Qu in a construction site. As soon as the farmers enter, they are rounded up and beaten by a gang of men. Guo calls the police; three police officers arrive and stop the fighting, but they state that quarrels over salary are not a matter for the police; the farmers shall go to the Labor Bureau.

Accidentally the workers get into contact with a migrant workers legal aid center in Beijing. The lawyer here helps them to contact the Labor Inspection Team (??????) under the Labor Bureau. But the official there turns them away again, now on the grounds that the first employment was made in the name of company A, which is not registered in Beijing. After the lawyer threatens with suing the bureau for non-action they agree to take the case and contact Qu, who after some days answer that he will settle accounts with Guo and the other farmers. The court agrees to handle the case but it will be as 68 individual cases, requiring each of the farmers to pay 50 yuan in court fee. They can be exempted for the fee if they can get a ‘poverty card’ from their community on an individual basis. The case ends here in June 2005 as the amount they can win gets smaller and smaller in relation to what they already have spent in time and money and furthermore will have to spend to go through a trial.[3]

Analysis

This case is long in time and complex. It lasts almost four years and there is really no good solution to it, so it can only break down the trust in the fairness of the system among the claimants, if there ever were any trust. Along the way the farmers get into contact with the different organs and mechanisms, which are in place to solve labor conflicts: Notably the district Labor Bureau – which supervises the Labor Arbitration Committee – and the Labor Inspection Team which sorts directly under the local government. Inspection/supervision and arbitration are two different mechanisms, based in two different institutional systems and on two different sets of regulations[4]. Labor inspection teams are independent organs that have the mandate to supervise the implementation of labor laws, while labor arbitration belongs to the Ministry of Labor and Social Security pillar. Labor Arbitration Committees at all levels are associated with the specific labor contracts and has the function of negotiating a solution in case of disagreement between the employer and the employee on terms of the contract (Dong Baohua
2007: 693-694). The complainant shall choose which of the two systems to use as one of them will normally not accept a case which has been treated in the other. In this case the Labor Bureau is first contacted but they reject the case on the grounds of it not being covered by the Labor Law, as the employer is not an enterprise but an individual. As a consequence the Labor Bureau sees the complaint as a conflict between individuals and it has to be treated as a civil case in court. However the court deems that as the subject matter is salary it should first go to labor arbitration, and if arbitration fails the court can take up the case. A labor case has to go through the labor arbitration committee before it can be brought to court. But the farmer Guo does not go to court and the case stops there for a while until the legal aid lawyer enters the scene. He decides to try the labor inspection system and the officer there first tries to turn them away. Faced with a threat to sue the Labor Bureau he tries to mediate, but when that fails he declares that they shall go to court and sue the Labor Bureau in an administrative case. The court accepts the case, but demands too high a fee from each, which make the workers give up the whole project.

The stumbling blocks in the case are that they are hired illegally and they do not have a contract by which to prove that a labor relationship existed between them and the company B, which they actually worked for. This confused structure enables the hiring agent, Qu, as well as the company B to get away with not paying 68 workers for one month’s work.

Conclusion

The solution of problems encountered by migrants coming to work in the cities are hampered by several factors, even though some legislation and administrative circulars are in the place and increasing attention from official circles have been devoted to the issue in recent years. Effective solutions are more often prevented by lack of money and lack of time than by lack of relevant regulation. Naturally migrant workers are poor people. Else they would not be moving from the countryside to the cities with the intensity and in the numbers they do. Poor people do not have time to wait for decisions to drag on and on; they need immediate solutions to problems of daily livelihood. So the system should be designed to move quickly and arrange for immediate remedies. Just as naturally poor people do not have money to pay for public services supporting claims for payment of withheld salary, for example. But the possibilities for getting legal aid for free are quite restricted. The legal organs responsible usually do not accept cases where there is no written evidence. They can do it without breaking the law, but they tend to rely heavily on documentary proof like contracts as has been shown in the case above. The above case furthermore reveals a strong desire on part of the relevant authorities to find bureaucratic reasons for not accepting a migrant labor case as can be seen from the fact that the complainants often are sent back and forth many times between the same organs.

It is obvious that informal discussions and negotiations play a major role in dispute resolution, like anywhere in the world. And this is no problem as long as the solutions reached at really compensate for the losses incurred, not only to the satisfaction of the individual but fulfilling more general demands for justice.

Hatla Thelle, Danish Institute for Human Rights, Copenhagen

References:

Dong Baohua and Dong Runqing (2007), ???????????Case Analysis on Latest PRC Labor Contract Law. Chinese-English. Beijing: Law Press China.

Collection of cases from a migrant group in a Beijing suburb (on file with author), March 2006.

Interview, Dongfang Impact Litigation Law Firm, 10 November 2005.

???????????????????? Who Infringe Their Rights?

Beijing: Law Press, 2006.

Woo, Margaret Y.K., Christopher Day and Joel Hugenberger (2006?) “Migrant Access to Civil Justice in Beijing”. Loyola University Chicago International Law Review, vol. 4, no. 2: 101-146.

Ye Jingzhong, James Murray and Wang Yihuan (2005), Left-behind Children in Rural China. Impact Study of Rural Labor Migration on Left-behind Children in Mid-West China. Beijing: Social Sciences Academic Press.


[1] The Labor Law sets up certain qualifications which should be met in order for a labor relationship to be legal, and thus to be covered by the law. Article 2 stipulates that only the following units can be counted as legal employers: Enterprises, economic organizations, state organs, public institutions and social organizations. (Dong Baohua 2007: 305).[2] They can also be called ‘small employer’ (???) and there can be many layers of middlemen between a group of workers and the company who are financing the project (Woo 2006: 141).[3] The case is described and analyzed in Who Infringe Their Rights?, p. 31-49.[4] ?????? (Labor Inspection Rules) of 2003 and ??????????? (Labor Arbitration Regulations) of 1993. (TJEK: også SPC interpretration fra 2006)

WHO INFRINGE THEIR RIGHTS?
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