Despite explicit prohibitions against the exploitation of workers in key Chinese legal documents, including the Constitution, the Labor Law and at least 16 other central and municipal government laws, regulations and directives,158 research by the Chinese government and international labor organizations indicate such violations remain rampant.
The governments framework for labor dispute resolution consists of a three-stage process which begins with mediation, advances to arbitration if mediation fails, and concludes with litigation before a court of law. But each stage of this process poses serious challenges to migrant construction workers seeking legal redress for their claims.
The first stage of the labor dispute resolution process, mediation, hinges on article 80 of Chinas Labor Law which stipulates that any dispute between workers and employers must be resolved through a tripartite labor dispute mediation committee formed inside the workplace and consisting of representatives of the workers, the employer and the trade union. However, Chinas only legal trade union body, the state-sponsored All China Federation of Trade Unions (ACFTU), has traditionally not prioritized union representation for migrant workers, leaving an estimate 70 percent of migrant construction workers without union protection.159
Migrant workers who can successfully tap union assistance for mediation assistance can also initiate arbitration proceedings if mediation fails. However, arbitration requires workers pay a fee of 420 Yuan160(US$57.53), a prohibitively expensive sum for most migrant workers. Workers who pursue the dispute resolution process to the litigation phase are faced with even more onerous legal fees that are beyond the resources of the vast majority of migrant construction workers, as well as lengthy waits for court judgments.
Advocates for the rights of migrant construction workers say that the laws designed to protect laborers of all kinds from wage exploitation and other abuses do not adequately stipulate how workers can extract unpaid wages from unscrupulous employers even when mediation, arbitration or a successful lawsuit decides in their favor. Weve ignored the protection of laborers rights, especially laborers rights [and] we have no clear system that says [who] must bear responsibility when their wages arent paid and how those responsible are to be punished.161
The Regulations of the Peoples Republic of China on Settlement of Labor Disputes in Enterprises provide clear directives on redress mechanisms for work-related grievances.162 Article 4 of that law stresses the need for mediation and prompt handling of such disputes and the equality of employers and employees before the law.163
But migrant workers interviewed by Human Rights Watch consistently expressed cynicism about the capacity of Chinas laws and leadership to solve wage exploitation and other rights violations that they experience on construction sites in Beijing. Premier Wen Jiabao says that migrant workers wage payments shouldnt be delayed. Is that just an empty slogan?164 One of the main causes of the ongoing problems in addressing rights violations of migrant construction workers in Beijing is inadequate implementation of existing laws.165 Strained government resources and lack of budgetary funding to support migrant worker legal assistance measures means that laws designed to protect workers are often ignored.
As one observer noted:
In response to the dysfunctional official dispute resolution process, a patchwork of ad hoc mechanisms to address migrant construction workers grievances against employers has evolved at the municipal government level and through a handful of non-government organizations that offer free dispute resolution services to migrant construction workers. However, municipal government agencies are inadequately staffed to cope with the high volume of migrant construction workers seeking legal redress and workers ultimately face a vicious circle: the agencies condition the enforcement of their rights on the production of documents such as legally-standard contracts which migrant construction workers typically lack, and which help give rise to the violations in the first place.
According to official statistics, there is only one labor protection officer for every 1,600 work places and for 17,000 workers.167 Even with the campaign to collect unpaid wages for migrants and the possible criminalization of such behavior, there is still not enough monitoring of firms to deter the widespread use of this technique as a means of reducing overheads.168
The lack of numbers and resources allocated to support the operations of the labor inspectorate was noted by the UN committee who called on sufficient resources to be made available so that there could be both regular and independent inspections of safety and health conditions in all sectors and sanctions against employers who fail to observe safety regulations. The Committee encouraged China to ratify ILO Convention No. 81 concerning Labor Inspection in Industry and Commerce.
Labor protection officers currently have a mandate that strictly limits their utility in effectively addressing migrant construction worker grievances. Labor protection officers are empowered to inspect work sites and impose fines for labor law violations, but do not have the power to ensure that fines are paid and that employers actually obey labor laws after the officers leave the work site.
The efforts of such labor protection officers are also diminished by loopholes in Chinas labor laws that provide little or no deterrent effect for employers who cheat their workers of owed wages or deny them legally-stipulated medical insurance coverage as a means to boost profits. A study in 2006 by Chinas State Council noted that under current laws, employers proven to deny their workers legally-required labor contracts merely have to provide a contract, with no additional fine or administrative penalty.169 The report also noted that current legal penalties against employers who withhold wages, typically fines of 50 to 100 percent of the owed wages, were failing to provide an effective deterrent against abuses in Chinas construction industry.170
Current laws and regulations also do not provide relevant government officials the power to effectively enforce legal judgments against employers found guilty of cheating their migrant worker employees. Government officials can rule in favor of workers grievances and instruct their employers to pay owed wages and/or compensation, but do not have the specific legal powers to compel compliance with such judgments. Labor and social security bureaus dont have power to enforce the law. They can talk to the [employer], but lack power to order it to pay.171
Migrant construction workers in Beijing interviewed by Human Rights Watch expressed frustration at the inability of relevant government departments to force construction companies to pay legally-owed wages.
Migrant construction workers who successfully navigate government bureaucracy and can provide the needed documentation including urban household registration permits which many migrant workers lack173 are often daunted by the lengthy waits that government labor protection agencies require to render judgments in legal disputes. One worker said he and more than 80 of his coworkers, unpaid for work done between November 2006 and April 2007 and almost penniless, were informed by both the Ministry of Construction and the Beijing municipal government that any investigation to recover more than 1.5 million Yuan (US$200,000) in unpaid wages would require a minimum of 60 working days.174 A wait of 60 days is a matter of life and death [for us] dont they realize how many people could die because of a wait of 60 days?175 As already noted, most such workers have no safety net.
Those difficulties can help enable employers guilty of wage exploitation to evade legal responsibility for cheating their workers. Employers may threaten workers that it will take a long time if they file a lawsuit and they should take, say, 60 percent of the wages and leave.176
Some workers eventually opt for illegal strikes in order to pressure their employers to pay owed wages. Over the past two years, there have been several documented instances of workers being violently assaulted by plainclothes thugs suspected to be working on behalf of the workers employers. In July 2007, in response to a strike by 300 migrant construction workers at the Fuyuan Hydropower plant in Heyuan city in Guangdong, thugs allegedly hired by the company to break the strike injured hundreds and beat one of the migrant workers to death.177 Six migrants were injured in a similar attack in Xian, Shaanxi province, in August 2005.178
157 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007.
158 Labor Insurance Regulation of the Peoples Republic of China (中华人民共和国劳动保险条例), 1953; Labor Ministry Reply to South Hunan Labor Ministry Enquiry on Labor Insurance Benefits for Migrant Workers Injured on the Job (<国家劳动总局保险福利司关于应公致残的亦工亦农民人员的保险待遇和退休工人享受特许贡献待遇问题给湖南劳动局的复函>), 1982; Measures to Regulate the National Construction Industrys Employment Contract and Use of Rural Migrant Workers (国营建筑企业招用农民合同制工人和使用农村建筑暂行办法1984；Rules For Strengthening Rural-Urban Enterprises Worker Protection Efforts （关于加强乡镇企业劳动保护工作的规定,1987; Directive About Problems With Hiring Contracts and Rigorous Implementation of Worker Protection Rules (关于雇工合同 应当严格执行劳动保护法规问题的通知), 1988; Temporary Regulation on National Enterprises Temporary Worker Management (全民所有制企业临时工管理暂行规定), 1989; State Council National Regulations on Industrial Employment and Contracts for Migrant Workers (国务的<全民所有制企业招用农民合同制工人的规定>, 1991; Directive To Strengthen Foreign-Invested and Private Enterprises Labor Management and Feasible Guarantees for Workers Legal Rights (关于加强外商投资企业 和司营企业劳动管理切实保证职工合法权益的通知), 1994; Implementing the PRC Labor Laws Labor Contract Signing Provision (<实施<中华人民共和国劳动法>中有关劳动合同问题的确签>), 1995; Directive About Completely Cleaning Up and Rectifying Migrant Workers Fees (关于全面清理整顿外出或外来务工人员收费通知), 2001; Law of the Peoples Republic of China on Work Safety, 2002; State Council Directive Permitting Rural Migrant Worker To Seek Jobs in Cities ((国与原办公厅关于做好农民进城务就业管理和服务工作的通知), January 2003; Directive About Feasible Solutions for Construction Sector Unpaid Wages Problem (关于切实解决建设领域欠工程款问题的通知), November 2003; Industrial Accident Insurance Regulations (工伤保险条例), 2004; Minimum Wage Regulation (最低工资规定), 2004; Directive About Migrant Worker Participation in Work Injury Insurance Problems (关于农民工参加工伤保险有关问题的通知), 2004; Beijing Municipal Government Regulations for Management of Migrant Workers and Business People, 2005.
159 All-China Federation of Trade Union Bulletin, June 4, 2006, http://www.acftu.org.cn/0604.htm (accessed October 17, 2007).
160 新疆人大代表呼吁取消劳动仲裁前置的法律程序, Xinhuanet.com, January 20, 2006, http://news.xinhuanet.com/legal/2006-01/20/content_4076746.htm (accessed December 25, 2007).
161Anthony Kuhn, Migrants A High Price to Pay for a Job, Far Eastern Economic Review, January 22, 2004.
162 Regulations of the Peoples Republic of China on Settlement of Labor Disputes in Enterprises, 1993.
163 Ibid., art. 47.
164 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007.
165 China Labour Bulletin, Conflicts of Interest and the Ineffectiveness of Chinas Labour Laws: English Executive Summary, October2007, www.china-labour.org.hk/public/contents/category?cid=5712 (accessed October 29, 2007).
166Chinas State Councils 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. 203.
167 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. 202.
168International Confederation of Free Trade Unions, Letter from ICFTU general-secretary (unnamed) to Juan Somavia, director-general, International Labor Organization, August 31, 2006, www.ihlo.org/is/000806.html (accessed September 18, 2007).
169 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. 206.
171 Josephine Ma, Exploited Workers Face Uphill Battle To Get Back Pay, South China Morning Post (Beijing), February 13, 2007.
172 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007.
173 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.
174 Human Rights Watch Interview with a Beijing-based migrant construction worker (name withheld), Beijing, January-March 2007.
176 Josephine Ma, Exploited Workers Face Uphill Battle To Get Back Pay, South China Morning Post (Beijing),February 13, 2007.
177 Strike Breaking Thugs Kill Migrant Worker, Shanghai Daily (Shanghai),July 3, 2007.
178 Migrants in China Beaten Over Unpaid Wages Claim, Associated Press, August 4, 2005.