III. Exploitation of Migrant Construction Workers in Beijing
Migrant construction workers in Beijing are routinely paid late or underpaid and receive far fewer of the benefits and social welfare protection enjoyed by their non-migrant counterparts. Despite provisions under Chinese law that migrant workers receive a legal minimum wage, monthly wage payments, medical and accident insurance, and paid overtime, migrant construction workers face the prospect of not receiving many if any of these benefits due to unscrupulous employers and a flawed government oversight and protection system. The migrant construction workers interviewed for this report were all male and had relatively low education levels. Those workers entered into verbal or written employment contracts that stipulated daily wages of 40 to 60 Yuan (US$5.30 to US$8) per day. The majority of the workers said their employers refused to pay legally-stipulated overtime wages (to be paid for work in excess of more than eight hours a day and 44 hours a week)47 and cheated them of the agreed wages. Migrant workers efforts to seek official assistance in obtaining their wages were met by frustrating delays or were aborted outright in the face of an understaffed and unsympathetic bureaucracy. Once hired, the lives of migrant construction workers, like those of most migrant workers in Beijing, become closely tied to their employer. Employers generally house construction workers in dormitory-style dwellings on the construction site or nearby and provide meals for the workers at food canteens in exchange for a daily wage deduction of seven to 10 Yuan (US$0.93 to US$1.33). The majority of the workers we interviewed complained that the quantity and quality of the food provided by their employers was inadequate to sustain them for their daily long hours of hard physical labor. Human Rights Watch interviewed migrant construction workers on nine different building sites in Beijing and witnessed spartan, unhealthy living conditions in unheated buildings during the depths of winter in which up to 20 men sometimes had to share 10 beds. Some workers reported having limited access to communal bathrooms and showers located outside their rooms. The majority of workers Human Rights Watch interviewed were denied employer-provided medical insurance stipulated by Chinese law and often had to tap their meager savings for self-treatment of injuries and illnesses at pharmacies or small clinics. Knowledge of their legal rights for redress of wage exploitation and other abuses appeared to be very limited amongst migrant workers. Migrant construction workers who seek redress through mediation, arbitration or lawsuits against their employers often give up due to obstacles stemming from their lack of household registration permits or a bureaucracy overburdened by and largely insensitive to the migrant construction workers problems. Although the population we interviewed cannot be taken as representative, we were unable to find any cases in which migrant construction workers had successfully pursued redress for exploitation and abuse of their rights. A nationwide survey of migrant construction workers released in July 2007 by the Chinese Academy of Social Sciences (CASS), the countrys top social policy think tank, found that only 31 percent of migrant workers receive their salaries monthly in accordance with Chinese law and that more than half work without contracts.48 Other studies echo the CASS reports findings and indicate that migrant workers are routinely cheated of their wages and work long-hours in disgusting conditions without being paid overtime or the protection of accident and medical insurance.49 The CASS data was derived from a survey sample of more than 30,000 migrant workers from 2,150 companies in 40 Chinese cities.50 China is a party to the International Covenant on Economic, Social and Cultural Rights and as such has undertaken to recognize and take steps to safeguard each individuals right to work.51The right to work and the right to just and favorable conditions, including fair and equal remuneration, are rights guaranteed to all without discrimination, including based on national or social origin.52 The Committee on Economic, Social and Cultural rights which oversees state partys implementation of the Covenant has called on the Chinese government to ensure that it provides all its workers, including migrants, the protection of the Covenants article 7, which enshrines the right of just and favorable conditions of work. Faulty or Non-Existent Labor ContractsThe exploitation and abuse of migrant construction workers in Beijing usually begins at the time they are hired. Employers often refuse to provide workers with a copy of their contract that should, according to applicable legal standards, be signed by both parties and outline the workers rights, obligations, working hours, and payment details. A migrant construction worker interviewed by Human Rights Watch said that his employer repeatedly and without reason rebuffed his and his coworkers efforts to obtain copies of their employment contracts.
The July 2007 survey of migrant construction workers by CASS found that 53 percent of surveyed workers did not have labor contracts, 41 percent of those who had contracts did not have copies of the document and only 17 percent of those with contracts actually understood the rights and obligations embodied in the contract.54 Those statistics conform to the experiences of migrant construction workers interviewed by Human Rights Watch. Most of the workers we spoke with said that they had started to work on the basis of verbal agreements with building site supervisors or signed contracts that were then confiscated for safekeeping by their employers. While there were a few workers who had received copies of contracts from their employers, the contracts were not legally standard and thus deprived workers of the capacity to pursue legal redress for contract violations. The failure of employers to provide legally standard and signed contracts for their workers violates both article 16 of the Labor Law of the Peoples Republic of China and article 10 of the Labor Contract Law of the Peoples Republic of China.55 The fact that migrant construction workers often do not have legal employment contracts is symptomatic of their lack of knowledge of their legal rights and employers willingness to exploit that ignorance for their own financial gain.56 The contracts that employers do provide some migrant construction workers are often flawed by specifying only migrants [work] obligations, but not their rights.57 The absence of legally compliant contracts helps to facilitate wage exploitation and other abuses by employers, and make legal redress for such violations extremely problematic. With an oversupply of labor, most [migrant construction] workers give up their legal right [to a legally-binding contract] to gain a job [and] because of this intense competition, many employers take advantage of their construction workers and withhold payment through nonexistent or faulty contracts.58 The possession of what workers assume are signed, legally-standard employment contracts do not guarantee that government offices with the responsibility and mandate to address labor disputes will take action. On the contrary, Human Rights Watch received reports in which workers who were clearly victims of exploitation were turned away by government authorities on overly bureaucratic and tendentious grounds that suggested an unwillingness of the authorities to actually help victims of exploitation. A migrant construction worker from Shaanxi province, for example, said that he and more than 40 of his colleagues seeking government assistance to secure unpaid wages were turned away from Beijings Daxing District Labor Supervision Unit office (大兴 区 劳动监察大队) on January 10, 2007 because the contract had been stamped with the personal seal of the companys hiring manager, rather than an official company seal.59 In China, the use of stone or wood seals or stamps etched with Chinese characters rather than personal signatures remain the dominant means to ratify contracts and other important documents and in certain cases is the only legally acceptable method to do so. The Daxing District Labor Supervision Unit office ruled that the use of an employers personal seal rendered the document a contract between individuals rather than between a corporate employer and workers and was thus not within the units terms of reference to pursue for redress.60 The unit officer told the workers to go back to their employer and try to retrieve a copy of a work contract with a company seal in order for any official legal action to proceed against the employer.61
Employers who refuse to provide migrant construction workers copies of signed employment contracts deny those workers an opportunity to understand their contractual rights and obligations and therefore to pursue legal redress if abuses occur. While the Labor Law of the Peoples Republic of China does not stipulate that employers must ensure that workers are provided a personal copy of a legally-standard labor contract, on January 1, 2008, article 17 of the Labor Contract Law went into effect, stipulating that The employer and the employee shall each keep one copy of the employment agreement.63 The lack of a contract stymied one migrant construction workers efforts to seek government assistance in getting legally stipulated accident-insurance coverage denied by his employer. The worker sought insurance coverage for medical expenses of 550 Yuan (US$74.32) for treatment of his left hand which was injured in a workplace accident. The worker was unable to apply for help from the Beijing municipal district government agency tasked to help resolve migrant worker disputes with their employers due to the agencys requirement that all applicants for such assistance submit copies of their labor contract. I didnt have a written labor contract [because] in Beijing [the lack of written labor contracts] is a common phenomenon.64 The new Labor Contract Laws stipulation that workers must receive their own personal copy of a legally-standard labor contract aims to end such abuses by employers. However, it remains to be seen whether the Chinese government will vigorously enforce the new law and eradicate the widespread problem of employers withholding labor contracts from migrant construction workers. Moreover, in the event that employers do not comply with the law, as is the case with many other applicable laws, they should be fined or otherwise penalized: Chinese authorities should not allow employers to benefit from their failure or refusal to comply. To date, the authorities have in effect been rewarding employers who deny their workers signed legally-standard contracts by allowing the employers violations to undermine the victims capacity to seek a remedy. This perverse situation means migrant workers are doubly victimized, first by their employers and then by the state who in effect endorses the actions of the employer. Article 17 of the Labor Law and article 3 of the Labor Contract law both require labor contracts to based on equality and voluntariness. Article 17 of the Labor Law states that work contracts must be formulated through consultation [with workers] while article 3 of the Labor Contract Law specifies contracts be designed according to the principles of negotiated consensus and good faith.65Therefore the key to upholding the legal labor contract rights of migrant construction workers hinges on the willingness and capacity of the Chinese government to enforce existing and pending related laws and punish employers who flout them. Unpaid WagesThe most acute problem faced by migrant construction workers in Beijing is the routine failure of their employers to pay them fully and promptly, as article 50 of the Labor Law requires: Wages shall be paid monthly to laborers themselves in form of currency [and] not deducted or delayed without justification.66 Because a majority of migrant construction workers either do not have contracts, sign contracts that do not specify employer obligations or are denied copies of their contracts, migrant construction workers are routinely forced to rely on their employers verbal promises regarding wages and wage payment timetables which very often are disregarded later by their employers.67 One migrant worker told Human Rights Watch how he and dozens of coworkers had a claim for more than 1.5 million Yuan (US$200,000) in unpaid wages, but that the employer tried to force them to accept an agreement instead which provided each worker 700 Yuan in travel expense money and a signed guarantee to repay the outstanding amount of wages at an unspecified later date.68 Another migrant construction worker reported his experience having worked on a building site in central Beijing from April 18, 2006 through to the completion of the project on November 20, 2006. There was an oral agreement that the entirety of his wages would be paid at completion. When the project was completed, however, the worker and his co-workers were left in limbo when their employer deflected their demands to be paid with a range of excuses. [The company representative] said the money hasnt arrived yet [or] the boss isnt here [or] the boss is busy and so on, with such excuses for the delay until today, [payment is] delayed more than two months.69Efforts to get government help to enforce their right to be paid were frustrated by the workers lack of copies of legally-standard labor contracts and household registration permits needed to make a formal application for assistance from a government agency tasked to broker resolutions in worker-employer disputes. When Human Rights Watch spoke to the worker in March 2007, he and his coworkers had still not been paid for their seven months of labor. This interview data echoes findings of Chinas State Council which found that migrant construction workers were particularly vulnerable to being cheated of their wages or having their wages subject to illegal deductions by unscrupulous employers.70 More than half of the Beijing migrant construction workers interviewed by Human Rights Watch reported that their employers had refused to pay wages when they fell due each month, and instead workers experienced extended delays before receiving their wages. When the wages were finally paid, several found that their long-awaited pay packet was substantially less than what they were entitled. In most cases, the employers gave no explanation for the reductions. In one case, the construction company representative explained that the reduction was a result of the companys poor financial performance.71 Migrant construction workers often come to accept such abuse and exploitation as an unavoidable risk in coming to the capital to work.
Another of the workers interviewed by Human Rights Watch reported that he and around 160 other workers hired to construct a multi-story building in Beijing between October 24, 2006, and February 1, 2007, discovered on the eventual payday that their employer paid them only a fraction of their expected wages.73 The average daily wage that the workers were paid by their employer was less than 50 percent of Beijings official minimum wage calculated on the basis of 6.8 Yuan (US$0.91) per hour for manual laborers who work an eight hour day.74
Company representatives refused to consider the workers demands for payment of what they claimed was a 400,000 Yuan (US$53,333) shortfall in their owed wages and instead offered to rehire the workers at an unspecified later date for future building projects at an unspecified higher rate of pay.76 Workers who receive wages late and at considerably reduced amounts face huge pressure just to survive in Beijing. Instead of sending money home to support their families in the countryside, some are forced to rely on savings they have brought with them from their rural villages. Many have no money even to supplement the inadequate food provided by their employers in exchange for daily wage deductions. The UN Committee on Economic, Social and Cultural Rights has brought the seriousness of the situation to the attention of the Chinese government, noting that workers not only suffer from wages insufficient to provide a decent standard of living for them and their families but that the situation is aggravated by the persistent problem of wage arrears especially in the construction sector.77 Employers also routinely flout laws requiring that workers be paid overtime for working longer than the statutory eight hour day and 44 hour work week.78 Employers can only deviate from those legally stipulated working hours and week with approval of the labor administrative department.79 Chinas Labor Law requires that employers pay 150 percent of normal wages if the extension of working hours is arranged, to pay no less than 200 percent of normal wages if extended hours occur on days of rest and no deferred rest can be taken and to pay no less than 300 percent of normal wages if extended wages occur on statutory holidays.80 A study by the Chinese Academy of Social Sciences estimated that Chinas migrant construction workers work an average of 10 hours a day and 27 days a month.81 Research by the Chinese government indicates migrant workers, especially in the construction industry, work an average of 50.5 hours per week.82 Many of those workers are denied overtime wages by their employers and 76 percent of migrant workers reported not receiving overtime for working public holidays.83 Migrant construction workers interviewed by Human Rights Watch indicated that long working days of up to 17 hours a day or longer on split shifts without overtime wages is common on construction sites in Beijing. Combined with the impact of employers refusal to pay wages each month, these conditions mean migrant construction workers have little or no time or money to spend on any recreational activities outside work. Several workers interviewed by Human Rights Watch said that the restrictions imposed on them by their long hours, no overtime pay and delayed wages meant that they literally never left the construction site where they lived and worked. Since I first arrived at the work site, every day Ive worked, I dont have any money and Ive never left [the work site] for relaxation.84 Workers complained that all their time is devoted to work with little or no time for relaxation or leisure outside the building site and said that their working conditions made them feel like cattle, slaves, and coolies.85 That regimen of excessive work with no meaningful rest breaks is a violation of article 3 of the Constitution of the Peoples Republic of China which stipulates that Working people have the right to rest. Employers failure to provide one full day off each week also violates article 38 of the Labor Law of the Peoples Republic of China.86 One migrant worker told Human Rights Watch that he routinely works between 10-16 hours per day for as many as 360 days per year for a daily fixed daily wage of 60 Yuan (US$8) without overtime wage payments.87 Beijings minimum wage regulations requires that manual workers be paid 6.8 Yuan (US$0.93) per hour for the first eight hours of a regular work day88 while article 44 of Chinas Labor Law stipulates workers received the 150 percent of the hourly minimum wage, or 10.20 Yuan (US$1.36) for any work after the eight hour mark.89 This would entitle the worker to a daily minimum of 74.80 Yuan (US$9.97) for a 10 hour work day and 136 Yuan (US$18.13) for a 16 hour work day. Unpaid overtime hours are often imposed in defiance of workers right to adequate sleep. One worker said that he and his coworkers had recently completed a work shift of three successive days, around-the-clock with minimal rest breaks.90
The Chinese government, Chinese government-affiliated research institutes and an international union organization have reached similar conclusions. A survey by the government-affiliated Chinese Academy of Social Sciences indicated that only 31 percent of the countrys migrant construction workers get their wages paid monthly.92 The majority of construction companies violates the stipulation of monthly wage payments and instead illegally pays living costs to their workers while withholding wages until the end of each year.93 Beijing municipal government statistics indicate that 41,904 migrant workers were not paid on time in 2006.94
The most common pay deduction imposed by employers on migrant construction workers is for food and shelter. The wages of the majority of migrant construction workers interviewed by Human Rights Watch were subject to deductions of 8 Yuan (US$1.08) per day.96 One worker told Human Rights Watch that on top of a monthly living expenses deduction of 8 Yuan (US$1.08) per day, he and his co-workers also faced wage deductions in the form of arbitrary fines imposed by the company for infractions ranging from sloppy work to wastage of working materials. If the supervisor imposed a fine, all of the workers involved had to take personal [financial] responsibility.97 The Beijing Labor and Security Bureau reported that there was a 63 percent reduction to 1,965 in the number of cases of migrant workers who had had their wage payments delayed in 2006.98 As already noted, the nationwide survey of migrant workers conducted by the Chinese Academy of Social Sciences which found that only 31 percent of migrant workers are paid on time, and strongly suggests that such cases represent only a fraction of the actual total. Even the number of workers who formally file complaints is in excess of the government figures. The Beijing-based Legal Aid Station for Migrant Workers, an independent organization formed in September 2005, registered 1882 cases from September 8, 2005 to May 23, 2006; over the same period it initiated proceedings for payment in 882 of them involving 1,782 workers and wages of 5.63 million Yuan (US$750,000).99 The government-sponsored Beijing Legal Aid Service working station registered about 1,000 cases of workers seeking redress for grievances including unpaid wages. One of legal aid lawyers estimated that there are thousands of migrant workers out there who need [legal] help.100 The Beijing municipal government announced in November 2007 that it had issued 530,364 identification cards to migrant workers since April 2007 to ensure electronic payment by their employers directly into workers bank accounts.101However, there has been no independent evaluation of the effectiveness of this payment system and none of the migrant construction workers interviewed by Human Rights Watch were aware of this system. The continuing failure of officials to effectively address the problems migrant construction workers face may in part reflect the close links between various levels of government and the state-owned construction firms who dominate Chinas building sector. State-owned construction firms are viewed by the government as tools of official urban development policy and officials tasked to assist migrant workers may be reluctant to take action which officials perceive might adversely affect the operations of state-owned companies. Substandard WagesChinas Minimum Wage Regulation (最低工资规定), which went into effect in January 2004, tasks local governments with setting appropriate minimum wage levels for their areas and ensuring their enforcement. The law directs local authorities to set monthly and hourly minimum wage standards at 40 to 60 percent of the average monthly wage in that area.102 But workers rights activists say these standards are inadequate relative to actual living costs.103
Beijings monthly minimum wage rose to its current level of 640 Yuan (US$85.3) in 2006105 while the minimum hourly wage for manual laborers in the city including migrant construction workers was increased to its present level of 6.8 Yuan (US$0.91) from 6 Yuan (US$0.80) in 2006.106 Migrant construction workers paid that wage based on an official work day of eight hours per day107for 20 days per month would earn a gross monthly income of 1,088 Yuan (US$147), a full 42 percent above Beijings official monthly minimum wage. Several migrant construction workers interviewed by Human Rights Watch, however, reported that they were hired by employers who offered a daily wage of no more than 40 Yuan (US$5.33), 26 percent lower than the legal daily minimum wage of 54.40 Yuan (US$7.35). One migrant construction worker who was paid 43 Yuan (US$5.81) per day told Human Rights Watch that those wages condemned him and his fellow workers to a life of monotonous physical labor and personal privation in order to earn money to support their families.
Those interviewees reported that they often worked far longer than the legally-stipulated eight hour day and their wages were delayed and/or considerably lower than what was originally agreed.109 Another worker said that employers arbitrarily pay a significantly lower amount than agreed in a single, end-year lump sum payment. The boss says I will pay you 50 Yuan per day, and at the end of the year [wage payment] you get 40 Yuan [per day].110 The UN Committee on Economic, Social and Cultural Rights has called on China to establish a wage enforcement mechanism that periodically adjusts minimum wages to the cost of living, facilitate the redress of wage claims, and take sanctions against employers who owe wages and overtime pay and impose fines and penalties on their workers.111 Inadequate food and housing
The long working hours of migrant construction workers in Beijing necessitates that they be housed and fed either on-site or very near their workplace. As already noted the majority of workers are not paid monthly and come to the city with minimal disposable income, resulting in situations in which employers provide housing and food for their workers in return for daily wage deductions of seven to 10 Yuan (US$0.93 to US$1.33). Those interviewed by Human Rights Watch unanimously described their living conditions as grossly inadequate. One migrant worker told Human Rights Watch that company management on his building site showed no concern for migrants problems: [Company management] had no fundamental interest in their workers health our relationship was almost the same as that of masters and slaves that you see in movies or in television.113 Migrant construction workers in Beijing reported that employer-provided housing is severely overcrowded, often unheated during the winter months in Beijing when temperatures frequently fall below zero degrees Celsius and without air-conditioning in the summer heat. Our room was unheated there were 10 beds for the use of more than 20 workers [and] in the winter in each bed there were basically two people as a means to stay warm.114 On another construction site, the workers dormitory had no electricity between 6 a.m. and 6 p.m. and lacked potable drinking water and proper shower facilities.115 According to one state media account, many migrant construction workers are left shivering in their makeshift tents on construction sites during the cold winter months.116 In November 2007, the central government announced that it would issue a document directing local governments to build dorms for migrant workers to improve their living conditions117 However, the government has not yet issued details of that directive nor specified if or how the construction of dormitories for migrant construction workers would be funded and enforced on Beijings thousands of building sites. Many of the migrant construction workers interviewed by Human Rights Watch said that the toilets and washing facilities on-site available to many migrant construction workers were severely inadequate and in some cases dangerously unhygienic. Toilet facilities often lack running water and without proper washing facilities many workers in the winter months are forced to pay three to five Yuan to go to heated public bathhouses to bathe.118
Migrant construction workers also receive inadequate quality and quantity of food from their employers. Two workers compared their food to what is fed to pigs in the rural countryside. Workers said that the employers food was so poor that they had to buy additional food outside the worksite, an expense which added to their existing financial strain. One worker said that he had to spend up to 500 Yuan (US$66.66) per month to supplement his diet.120 Migrant workers said that kitchens on Beijing construction sites use the cheapest ingredients and have a monotonous selection of items, forcing workers to tap their limited savings to supplement their daily diet.
On one work site, the meals of migrant workers included meat only twice a week and were frequently contaminated with insects and other vermin.122 Unsafe working conditionsConstruction workers in Beijing are routinely exposed to hazardous working conditions that expose them to illness and injury. A Chinese government study indicates that the vast majority of the estimated 700,000 annual industrial accidents in China befall migrant workers.123 Chinas official State Administration of Work Safety announced in January 2008 a total of 101,480 industrial workplace fatalities in 2007, a 27 percent decline from the figure in 2006.124 Workers in the construction industry, which is dominated by migrant workers, are particularly vulnerable to injury or death on the job. There is scant publicly-accessible government data on the specifics of Chinas construction industry accident injury and death tolls. Chinas National Bureau of Statistics groups annual data on construction industry accidents under a single general category of industrial, mining and commercial accidents. The Web site of the Beijing Municipal Statistics Bureau does not provide data on construction industry accidents. However, official statistics indicate that Beijing recorded higher levels of accidents and deaths in its construction sector in the first six months of 2006 than 32 other Chinese cities surveyed in the same period.125 Accidents in Beijings construction industry rose 29.63 percent to a total of 35 from January to June 2006, while worker fatalities in those accidents rose 53.57 percent year-on-year to a total of 43 deaths in the same period.126 Data from non-official sources is even more disturbing. The Legal Aid Station for Migrant Workers recorded 384 cases of migrant workers seeking redress for industrial accidents from September 8, 2005, to May 23, 2006.127 Article 42 of the Constitution of the Peoples Republic of China tasks the Chinese government to strengthen labor protection and improve working conditions of all of Chinas workers. Article 3 of the Labor Law of the Peoples Republic of China stipulates that laborers shall have the right to obtain protection of occupational safety and health.128 Article 52 of the Labor Law obligates employers to establish and perfect the system for occupational safety and health, strictly implement the rules and standards of the State on occupational safety and health, educate laborers on occupational safety and health, prevent accidents in the process of work and reduce occupational hazards.129 Articles 54 and 55 require employers to provide adequate safety training for workers who do specialized operations and to provide regular health examinations to those whose work involves occupational hazards.130 The Labor Contract Law, which went into effect on January 1, 2008, makes employers liable for administrative punishment or criminal liability in cases in which poor working conditions or a severely polluted environment [causes] serious damage to the physical and mental health of the employee.131 The Law of the Peoples Republic of China on Work Safety sets out employers obligations to reduce the risk of industrial accidents and the specific penalties for failure to do so. Article 53 of the law outlines the responsibility of local governments to execute strict inspections of work places to ensure compliance and to identify possible hidden dangers that might cause accidents.132 The rights of workers to occupational safety at work are also enshrined in the International Covenant on Economic, Social and Cultural Rights and ILO Conventions ratified by the Chinese government.133 While these protections are important, they are not being enforced as they should be and the Chinese government continues to be condemned for poor conditions of work including hazardous working conditions.134The UN Committee that reached that conclusion noted with concern that the problem is especially acute for migrant workers and that it was alarmed by the high incidence of serious occupational accidents.135This is consistent with the governments own research which indicates that employers regularly neglect the safety of migrant workers in the construction industry. An official study on working conditions of migrant workers indicated that only 24 to 39 percent of constructions workers have access to workplace safety equipment.136
Human Rights Watch interviews indicate that some construction companies are failing to fulfill their legal obligations to protect their workers from industrial accidents. Interviewees reported lapses in worker safety protection including a lack of safety equipment and ineffective systems to assist workers who have been hurt on the job. A migrant construction worker on a building site in central Beijing said his workplace was unsafe due to his employers failure to provide workers with essential protective equipment and assist injured workers when accidents occur.138 [The work site] is full of hidden health dangers [and when] worker injuries occur, they arent appropriately handled [by company representatives].139 The long working hours, lack of days off, and inadequate rest breaks endured by migrant workers make accidental construction site injuries more likely due to inattention and distraction caused by fatigue. A 24-year-old migrant construction worker said that fact that he was too tired while on the job lead to a workplace accident on August 7, 2006 in which a load of copper pipe fell on his left foot, requiring the amputation of one of his toes.140 Another migrant worker who suffered a serious injury to his hand, for which he blamed faulty equipment he was using, said the accident highlighted the absence of health and safety protections for workers on the site.141 On the work site relevant machinery and equipment werent provided and there also werent any safety protection products put in place or replaced [after being used].142 Lack of insurance coverage
Migrant workers are also systematically excluded from insurance schemes. Since 1953, the Labor Insurance Regulation of the Peoples Republic of China (中华人民共和国劳动保险条例) has extended insurance for illness and industrial accidents to urban residents who possess valid household registration permits. Article 45 of the Chinese Constitution enshrines the right of all Chinese citizens to material assistance from the state and society when they are old, ill or disabled. The rights of all laborers to social insurance and welfare is stipulated in article 3 of the Labor Law while articles 70 and 73 of that same law stipulate the creation of social insurance funds for illness, work related injury, and disability caused by work-related injury or occupational disease.144 Article 17 of the Labor Contract Law also requires all labor contracts to include details of social insurance for workers.145 Despite legal guarantees of medical and accident insurance, an estimated 700,000 construction workers in Beijing, the vast majority of whom are migrants, have no accident insurance.146 The survey research published in 2007 by the Chinese Academy of Social Sciences indicates that only 31 percent of Chinas migrant construction workers had medical insurance and 37 percent had accident insurance.147 A 2006 report by the State Council concluded that A large proportion of migrant workers [in Beijing] when sick, victims of industrial accidents or unemployed are unable to receive assistance.148 One article attributed the failure to provide insurance coverage for migrant workers to employers unwillingness to pay: Most companies dont participate in insurance programs because they think costs are too high [and] add 30 to 35 percent to labor costs.149 The majority of migrant construction workers interviewed by Human Rights Watch had no employer- or government-supplied medical or accident insurance whatsoever. The lack of legally-stipulated medical insurance coverage often forces workers to tap their meager savings to pay for treatment and medicines at roadside clinics and pharmacies.
Denial of basic services linked to Chinas household registration, or Hukou, systemMigrant construction workers in Beijing, who lack temporary household registration permits, have also been barred from seeking legal redress against employers guilty of wage exploitation. A group of 300 migrant construction workers whose employer refused to pay them their cumulative wages for work from April 2006 through November 11, 2006, for example, were stymied in their efforts to start legal proceedings against their employer by Beijings Fengtai district rural migrant legal assistance work station (丰台区的北京市农名工法路援助工作站). The work station required that each affected employee provide three copies of their household registration certificate and the workers lacked the necessary documentation.152 The unluckiest thing was that a lot of the workers dont have household registration certificates nowadays there are a lot of workers in Beijing who dont have household registration certificates, one worker told Human Rights Watch.153 Another migrant worker employed on a central Beijing construction site who sought government accident insurance to cover a 550 Yuan medical bill related to an industrial accident was also stymied by official requirements. Beijings Fengtai District Social Welfare Center Industrial Accident Insurance Section (丰台区社保中心工伤保险科) representatives informed the worker that filing such a claim would require submission of copies of a temporary household registration certificate as well as his employment contract, neither of which the worker possessed.154
The ILO advocates reform of the household registration system in order to eliminate aspects of the law that are problematic and discriminatory against migrant workers seeking legally stipulated services. Reforming the hukou system requires a number of institutional measures, including reform of the labor protection system, reorganizing public resource distribution systems, building and expanding the capacity to offer public and social services [education, health care, and housing] to rural migrants residing in urban areas.156
46 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 47 Labor Law of the Peoples Republic of China, adopted on July 5, 1994 and effective as of January 1, 2005, art.19. 48 Construction Workers Alienated, China Daily (Beijing), July 9, 2007. 49 Chinas State Council, China Migrant Worker Investigation and Research Report, (中华人民共和国国务院 的 中国农民工调研报告) 2006, p. 365. 50 Chinese employees legal rights need more protection, Xinhua News Agency, July 2, 2007. 51 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966; G.A. Res. 2200A (XXI), entered into force January 3, 1927, and ratified by China on March 27, 2001; article 6 guarantees the right to work. 52 Ibid., art. 7 and art. 2. 53 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 54 Construction Workers Alienated, China Daily (Beijing), July 9, 2007. 55 Labor Law of the Peoples Republic of China, promulgated on July 5, 1994 and effective as of January 1, 2005, art. 16; Labor Contract Law of the Peoples Republic of China, promulgated on June 29, 2007 and effective as of January 1, 2008, art. 10. 56 Easing the Plight of Migrant Workers, Shanghai Daily (Shanghai), June 17, 2005. 57Anthony Kuhn, Migrants A High Price to Pay for a Job, Far Eastern Economic Review, January 22, 2004. 58 Easing the Plight of Migrant Workers, Shanghai Daily (Shanghai), June 17, 2005. 59 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 60 Ibid. 61 Ibid. 62 Ibid. 63 Labor Contract Law, art. 17. 64 Human Rights Watch Interview with a Beijing-based migrant construction woker (name withheld), Beijing, January-March 2007. 65 Labor Contract Law, art. 3. 66 Labor Law, art. 50. 67Anthony Kuhn, MigrantsA High Price to Pay for a Job, Far Eastern Economic Review, January 22, 2004. 68 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 69 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld,), Beijing, January-March 2007. 70 Chinas State Council, China Migrant Worker Investigation and Research Report, (中华人民共和国国务院 的 中国农民工调研报告) 2006, p. 182. 71 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 72 Ibid. 73 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld,), Beijing, January-March 2007. 74 Income Distribution Reform for Social Justice, Equality, Invest Beijing, August 2006; http://www.bjinvest.gov.cn (accessed September 18, 2007). 75 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 76 Ibid. 77 Ibid. 78 Labor Law, art. 36. 79 Ibid., art. 39. 80 Ibid., art. 44. 81 Construction Workers Alienated, China Daily (Beijing),July 9, 2007. 82 China State Council, China Migrant Worker Investigation and Research Report, (中华人民共和国国务院 的 中国农民工调研报告) 2006, p. 182. 83 Ibid., pp. 182-203. 84 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 85 Human Rights Watch Interviews with various Beijing-based migrant construction workers (names withheld), Beijing, January- March 2007. 86 Labor Law, art. 38. 87 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January- March 2007. 88 Income Distribution Reform for Social Justice, Equality, Invest Beijing, August 2006, http://www.bjinvest.gov.cn (accessed September 18, 2007). 89 Labor Law, art.44. 90 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 91 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 92 Construction Workers Alienated, China Daily (Beijing), July 9, 2007. 93 ACFTU Survey Shows Migrant Workers Face Six Large Problems, China Industry Daily News (Beijing), November 15, 2004. 94 Migrant Workers We Need Them Just Like They Need Us, China Daily (Beijing) March 10, 2007. 95 International Labor Organization, Equality at Work: Tackling the Challenges. Global Report under the Follow-up of the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2007), www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---webdev/documents/publication/wcms_082607.pdf, pp. 34-35. 96 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 97 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 98 Number of Cases Involving Delays in Migrant Workers Wages Down in 2006, Xinhuas China Economic Information Service, February 21, 2007. 99 Li Qun, Who Infringe their Rights? Protecting the Rights of Chinas Migrant Workers: Cases and Analyses, (谁动了他们的权利?中国农民工维权案例情析), (Beijing: Law Press, 2006), p. 3. 100 Free Legal Aid Assists Migrant Workers, China Daily (Beijing), February 6, 2007. 101 China issues ID cards to ensure migrants get paid, Straits Times (Singapore), November 29, 2007. 102 Ibid. 103 China Falls Short On Minimum Wage, China.org.cn, May 14, 2006, http://www.china.org.cn/english/2006/May/168260.htm (accessed October 29, 2007). 104 International Labor Organization, Equality at Work: Tackling the Challenges. Global Report under the Follow-up of the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2007), www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---webdev/documents/publication/wcms_082607.pdf, pp. 34-35. 105 Sanitation workers in NW China city resume work after wage increase promise, Xinhuanet, October 19, 2006, http://news3.xinhuanet.com/english/2006-10/19/content_5224169.htm (accessed December 25, 2007). 106 Income Distribution Reform for Social Justice, Equality, Invest Beijing, August 2006, http://www.bjinvest.gov.cn (accessed September 18, 2007). 107 Article 19 of the Labor Law of the Peoples Republic of China, adopted on July 5, 1994 and effective as of January 1, 2005. 108 Human Rights Watch Interview with a Beijing-based migrant construction woker (name withheld), Beijing, January-March 2007. 109 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 110 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 111 United Nations Committee on Economic, Social and Cultural Rights, Report on the Thirty-fourth and thirty-fifth sessions, E/2006/22E/2005/5, March 1, 2008, p. 32. 112 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 113 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 114 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 115 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 116 Migrant workers left out in cold, China.org.cn, November 12, 2007, http://www.china.org.cn/english.China/232200.htm (accessed December 24, 2007). 117 New rules designed to help 140m migrants, China Daily (Beijing), November 21, 2007, http://english.peopledaily.com.cn/90001/90776/6306363/html (accessed December 11, 2007). 118 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 119 Ibid. 120 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 121 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 122 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 123 Chinas State Council, China Migrant Worker Investigation and Research Report, (中华人民共和国国务院 的 中国农民工调研报告) 2006, p. 182. 124 China punishes 183 people responsible five fatal accidents claiming 189 lives, Xinhua News Agency, January 22, 2008. 125 Nationwide Construction Industry Accidents, China Engineering Construction Net (Beijing), August 28, 2006, http://www.cein.gov.cn/news/show.asp?rec_no=14828 (accessed August 28, 2006). 126 Ibid. 127 Li Qun, Who Infringe their Rights? Protecting the Rights of Chinas Migrant Workers: Cases and Analyses, (谁动了他们的权利?中国农民工维权案例情析), (Beijing: Law Press, 2006), p. 3. 128 Labor Law, art. 3. 129 Labor Law, art. 52. 130 Ibid., arts. 54 and 55. 131 Labor Contract Law, art. 88.4. 132 The Law of the Peoples Republic of China on Work Safety, promulgated on June 29, 2002 and implemented on November 1, 2002, art. 53. 133 ILO Convention No. 155 concerning Occupational Safety and Health, adopted June 22, 1981, 1331 U.N.T.S. 279, entered into force August 11, 1983; ILO Convention 167 concerning Safety and Health in Construction, adopted June 20, 1988,1331 U.N.T.S. 279, entered into force January 11, 1991. 134 United Nations Committee on Economic, Social and Cultural Rights, Report on the Thirty-fourth and thirty-fifth sessions, E/2006/22E/2005/5, March 1, 2008, p. 27. 135 Ibid., p. 28. 136 Chinas State Council, China Migrant Worker Investigation and Research Report, (中华人民共和国国务院 的 中国农民工调研报告), 2006, p. 369. 137 Ibid., pp. 204-205. 138 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 139 Ibid. 140 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 141 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 142 Ibid. 143 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 144 Labor Law, arts. 3, 70, 73. 145 Labor Contract Law, art. 17. 146 700,000 Construction Workers in Beijing are Without Insurance, Agence France Presse, December 13, 2006. 147 Construction Workers Alienated, China Daily (Beijing), July 9, 2007. 148 Chinas State Council, China Migrant Worker Investigation and Research Report, (中华人民共和国国务院 的 中国农民工调研报告) 2006, p. 369. 149 ACFTU Survey Shows Migrant Workers Face Six Large Problems, China Industry Daily News (Beijing), November 15, 2004. 150 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 151 New rules designed to help 140m migrants, China Daily (Beijing), November 21, 2007, http://english.peopledaily.com.cn/90001/90776/6306363/html (accessed December 11, 2007). 152 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 153 Ibid. 154 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007. 155 Ibid. 156 International Labor Organization, Equality at Work: Tackling the Challenges. Global Report under the Follow-up of the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2007), www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---webdev/documents/publication/wcms_082607.pdf, pp. 34-35. |