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(Change, June 1998)
In September 1990, the Chinese Government ratified Convention
144 of the International Labour Organization on Tripartite Consultations
to Promote the Implementation of International Labour Standards
(1976). This means that the Chinese authorities recognize tripartite
consultations on an equal basis, in which management and workers
can fight for their maximum interests and government balances
the interests of both parties. In July 1994, the Chinese Labour
Law was enacted. Article 33 says, "The staff and workers
of an enterprise as one party may conclude a collective contract
with the enterprise on matters relating to labour remuneration....
A collective contract shall be concluded by the trade union on
behalf of the staff and workers with the enterprise; ......"
This lays down a foundation of collective contracts.
In December 1994, the Chinese Labour Ministry issued the "Provisions
on Collective Contract", which articulate concrete guidelines
for collective contract. However. the provisions' legal status
and comprehensiveness are subject to amendment. In fact, the Collective
Contract Law has not yet appeared in China.
To the All-China Federation of Trade Unions (ACFTU), the collective
contract system through consultation with parties concerned is
the leading task ire the process of enforcement of the Chinese
Labour Law. It is a key work on the agenda of ACFTU. Since 1995,
ACFTU has enforced the collective contract system in some testing
points and gradually implement the system throughout the country.
In fact, 1994 was a critical year for the enforcement of collective
contract in China because there was a rapid growth of labour disputes
in that year.
As estimated by the ACFTU, the All-China Enterprises' Labour Disputes
Conciliation Committee received 135,0001abourcasesin 1994, 59.4%morethanthatin
1993. Inthefirst half of 1995, 150,000 cases were reported, 20,000
cases more than that in the whole year of 1994.Labour disputes
in the last several years can be characterized as follows:
1. There is an increase in collective labour disputes. In 1994,
collective labour disputes shared 24.1% of total labour disputes
in China and workers involved in collective labour disputes were
68.7% of total workers involved in labour disputes, 7.2% and 11.4%
more than those in 1993 respectively.
2. There is a rapid growth of labour disputes relating to compensation,
social insurance, labour contracts in non-public-owned enterprises.
Labour disputes in private enterprises in 1994 was 20.2 times
of that in 1993. Moreover, labour disputes in foreign-invested
enterprises and share holding enterprises in 1994 were 3.6 times
and 1.45 times more than those in 1993 respectively. Among the
labour disputes in non-public-owned enterprises, disputes relating
to compensation share 26.6% and disputes on social insurance,
11.5%. in foreign-invested enterprises, 50.5% of labour disputes
are related to punishment of workers and disputes on labour contracts.
3. Wild-cat strikes and sit-ins due to labour disputes come often.
According to incomplete data on 28 provinces by the ACFTU, there
were more than 700 strikes or sit-ins. Among them, cases due to
wages in arrears or compensation in arrears for retirement or
redundancy shared 80%. Most ofthe cases were organized by workers
themselves, bypassing the otElcial trade union. Wild-cat collective
movements caused by increase in labour disputes have brought an
adverse impact on social and economic development in China'. Under
such circumstance, labour contract concluded through collective
consultation has become a new topic for the official trade union.
In excuses of differences of social, political and economic systems
as well as difference of social status and functions of the working
class, the Chinese Government has often promoted its own collective
contract system through consultation with Chinese characteristics.
The bargaining partners
Collective contract in China is concluded on the enterprise level.
However, there are many kinds of enterprises in China, such as
state-owned enterprises, collective enterprises, township and
village enterprises, foreign-solely-owned enterprises, Jcoint
ventures, cooperation between foreign and local investment, private
enterprises, state-owned enterprises operated by private.....
In the various kinds of enterprises, bargaining partner are different.
According to international norm, trade union, management and the
state are the agents to coordinate labour relations in a tripartite
collective bargaining system. However, "Who represents an
enterprise?" is not yet clearly defined in China. In reality,
from policy making to implementation of policies to handling labour
relations, all of these are done by government's Economics and
Trade Committee and enterprises are represented by the Committee.
Therefore, the tripartite relation (trade union, management and
the state) becomes a two-party relation (trade union and the state).
In such two-party relation trade union, as a civil body, is in
a disadvantageous position as compared with a government administration
which also plays the role of management. Moreover, the Labour
Ministry is also a part of government structure. It is questionable
how the rights of workers can be properly protected.
The scope of bargaining
In China, parties concerned in collective contract can discuss
matters relating to wages, working hours, day off, leave, health
and safety and workers' insurance and benefit. However, some issues
closely related to labour relations are not included, such as
personnel reform, employment criteria, turnover of workers and
changes of terms of collective contract and some higher level
issues, such as democratic rights and social rights, are not included.
The format and the procedure of bargaining
Article 84 of the Chinese Labour Law (1994) states:
Where a dispute arises from the conclusion of a collective contract
and no settlement can be reached through consultation by the parties
concerned, the labour administrative department ofthe local people's
government may organize the relevant departments to handle the
case in coordination
Where a dispute arises from the implementation of a collective
contract and no settlement can be reached through consultation
by the parties concerned, the dispute may be submitted to the
labour dispute arbitration committee for arbitration. Any party
that is not satisfied with the adjudication of arbitration may
bring a lawsuit to a people's court within 15 days from the date
of receiving the adjudication.
Article 12 on the Provisions on Collective Contract (Dec. 5, 1994)
states:
Collective consultation shall comply with the provisions of laws
and regulations, the principles of equality and cooperation. Neither
party shall take extremist acts.
The above regulations confine the way of collective bargaining.
Workers in China cannot take strike as a way to defend their rights.
On the procedure of bargaining, Article 33 of the Chinese Labour
Law states:
...... The draft collective contract shall be submitted to the congress ofthe staffand workers or to all the staffand workers for discussion and adaptation. A collective contract shall be concluded by the trade union on behalf of the staff and workers
with the enterprise; in an enterprise where the trade union has
not yet been set up, such contract shall be also concluded by
the representatives elected by the staff and workers with the
enterprise.
In this article, only two steps of bargaining are clearly stated:
by whom a collective contract should be adopted and who can represent
workers to conclude the contract.
In the Provisions of Collective Contract, the Chinese authorities
state:
"Collective consultation" refers to the acts that the
representatives of the trade union or the staff and workers of
an enterprise consult with the corresponding representatives of
the enterprise for the conclusion of a collective contract. (Article
7)
The representatives of collective consultation for each party shall be three to ten
persons (Article 8)
In the Provisions, the procedure of collective consultation is
regulated but discussion and adoption by the workers congress
or all workers in the enterprise as requested by the Labour Law
are not mentioned. It seems that there have been no standard ways
for the conclusion of a collective contract.
Purposes of the collective contract system
Three purposes can be listed for the collective contract system
in China.
1. to regulate labour relations in China by a tripartite consultative
system,
2. to regulate the labour market for normal function. "The
tripartite system" is regarded as indispensable in the modern
market economy and its labour market,
3. to tally with the internationally recognized labour relations
system. China is a member of the International Labour Organization.
It is necessary for the Chinese authorities to follow the internationally
recognized labour relations system.
However, the existing collective contract system promoted by the
Chinese authorities will probably repeat the failure of Workers'
Congress system in 19815. Some trade union officers have criticized
the collective contract system as formalistic.
l. Simple and insincere consultation. There is no comprehensive
way to consult workers about the collective contract. The draft
collective contract submitted to workers' congress or all of the
workers for discussion and adoption is regarded as a kind of formality
only. Workers cannot discuss the contract article by article.
2. Vague and general contract. The terms of the collective contract
are not clearly defined. They are ambiguous and even discriminatory.
Measures are not standardized. These create difficulties in implementation
of the contract and make the measures arguable.
3 To identify collect contract with the past "Double Protection
contract"fi. It is criticized that the collective contract
is by nature the "Double Protection Contract". It is
new bottle with old wine.
4. Terms in collective contracts just literally copy articles
in the Labour Law and relevant regulations. There is lack of enterprise's
own demands and standards.
5. Inadequate democratic monitoring by workers.
All of the problems make the collective contract system formalistic.
It becomes a new thing to bully workers. Eventually, workers are
disappointed, disgusted, and lose their interests in participating
in collective bargaining.
In the Chinese Trade Union Law, the trade union is requested to
"maintain close ties with workers and staffmembers, solicit
and voice their opinions and demands, show concern for their life,
help them solve difficulties and serve them wholeheartedly"
(Article 6). However, it is public knowledge that ACFTU has gradually
lost its social impact.
1. The trade union has lost its independence to the Communist
Party and government. Since the trade union is led by the Party,
its direction will be decided by the party too. For instance,
the trade union organized its 13th Congress in 1998 to implement
the policies made in the 15th Party Congress in 1997. The trade
union becomes a party apparatus or governmental body.
2. The trade union loses its independence to the enterprises.
Legally speaking, both parties concerned in collective contract
enjoy equal rights and obligations. In reality, however, they
are not equal. In many enterprises, the presidents of trade union
ore associates to the enterprises' executive mangers. Moreoverl
the position of executive manger is occupied by party secretary
in many enterprises. As a party apparatus, the trade union president
feels subordinate to the party secretary (the executive manger).
The trade union president dare not risk his/her job in the process
of bargaining with the executive manager, his/her superior.
3. The trade union is alienated from workers. When the trade union
concludes a collective contract with management, it is requested
to balance the interests ofthe state, enterprise and workers.
This is very different from Western trade unions which will only
consider the interests of union members and workers in the process
of collective bargaining. The functions of ACFTU as a trade union
and a party or government apparatus are melted together. When
the trade union claims to defend workers rights, it in fact defends
the interests of party and government rather than those of workers.
Moreover, both the interests of workers and party and government
are regarded as one and the same in government's political propaganda,
so trade union officers easily take party and government interests
as priority and put union interests aside. It creates bigger distance
between trade union and workers.
It is right of the Chinese Government to enforce the collective
contract system because of marketization. However, more fundamental
reforms should be introduced.
l . Workers should be free to organize independent trade unions
which can really represent workers and safeguard workers' interests.
2. Trade union membership should be redefined. Trade union should
be an Organization of workers, so its members should only be workers
(the counterpart of enterprise and its representatives). Enterprise's
owners and management should not be accepted as trade union members
and elected as the president of trade union.
3. the appointment, promotion and welfare of trade union officers
should be a strictly internal affairs and should not be controlled
by management.
4. Legal protection of trade union officers and representatives
of workers should be strengthened. The dismissal of trade union
officers and representatives of workers should be seriously regulated
and monitored.
By SHEK Ping Kwan
Executive Secretary
trans. CHAN Ka Wai
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