Abstract
The 2000s, and particularly 2008, marked a turning point in the history of labour law in China. This was the year when three major pieces of legislation, in terms of their repercussions for labour law in China, came into force: the law on labour contracts, the law on mediation and arbitration in labour disputes, and the law on employment promotion. It took 14 years for these laws to be adopted after the introduction of a general framework with the 1994 Labour Law, which at the time formed part of the gradual process of ‘reform and opening up’ initiated by the Chinese leadership in the early 1980s, marking the transition from a planned economy to a ‘socialist market economy’, as reflected in a wave of privatizations of previously state-owned enterprises.
This work, first published in 2010, thus comes at an ideal time to assess how labour law is faring today. The author, writing in this post-reform context, aims to cover more or less every aspect of this subject.
The book was also written against the background of the global crisis, from which China too has suffered, with widening inequalities and the authorities divided between the desire to ensure good industrial relations through better wealth distribution and greater protection for workers, and the rising fear of putting a brake on the country’s economic success as well as foreign investment.
Without being a labour law manual, this book aims to provide a general overview of the subject at both collective and individual levels, while also covering the crucial question of social security. Achieving this ambitious plan in just a few hundred pages means that the author is unable to go into detail, so the reader will probably be left wanting more, such as on the question of dismissal, for instance. But it must be borne in mind that the aim is actually to help the reader understand the system of industrial relations in China, and to show any sceptics that labour law does indeed exist. And it is with this in mind that, throughout the book, the author provides insight into the situation in China and what makes it special.
After an introductory chapter which discusses future developments in China, and locates the discussion that follows within the Chinese context, the structure of the book is fairly typical of works on labour law: definition of employment relationships, formation of labour contracts, performance of labour contracts, disciplinary rules and termination of labour contracts, and finally dispute resolution.
The author thus takes a traditional approach in Part I, seeking to define the employment relationship in order to determine the scope of labour law. Two factors characterize the employment relationship: performing physical or intellectual work in return for payment, and becoming a member of the enterprise or entity. It is notable that the concept of legal or economic subordination which is widespread in Europe for categorizing the employment relationship is not found here.
In Part II the author examines, among other things, the question of trade unions. The Chinese system might rightly be called a one-union system, which comes as no surprise in a political system based on a single party. All trade unions in China are required to belong to a single union, the ACFTU (All China Federation of Trade Unions). ACFTU’s role has been criticized because of its ‘dual mission’ as both part of the state apparatus and a trade union organization. Since economic issues appear to take precedence over social issues, it has been accused of being more in favour of developing enterprises rather than workers’ rights.
The author then goes on to look at issues to do with discrimination, using comparisons with US law. It is a pity that greater use is not made of comparative law throughout the book. Later on, the author also considers problems relating to the health and safety of workers, a hugely important and difficult issue in China, particularly because, as the author points out, although a social security system is gradually being introduced, cover remains broadly inadequate. There is no denying, however, that progress has been made in this field.
In a final section, after looking at the termination of labour contracts and in particular dismissal, the author describes the legal remedies available for labour disputes. The use of arbitration is clearly very widely encouraged and is also, except in rare cases listed exhaustively in the legislation, mandatory before legal proceedings can be brought. The author gives a very clear description of the ‘route’ to resolution of a dispute: mediation, arbitration and finally application to the courts if the first two phases fail.
The report ends with a number of illustrations of individual and collective employment contracts.
Throughout the book the author raises certain cross-cutting issues that are peculiar to the Chinese context. For instance, he often points out that although China is a highly centralized state, local government tends to be very independent, which is vital given the size of the country and its population. In the legislative process central government is responsible for issuing guidelines, which local government then takes the necessary steps to implement. The author provides some essential insights for understanding the system here, giving a number of illustrations of these local implementing measures and how they are interpreted by the courts. Independent local governments and rapid economic development in certain regions (particularly along the coast) are creating severe inequalities primarily between different areas, but also within enterprises themselves, as well as between workers, depending on their social status. If there is one issue which is characteristic of the situation in China, it is the question of migrant workers. Because of the ‘hukou’ system introduced by the Chinese authorities in the early 1950s to curb the full-on rural exodus, workers holding a ‘rural hukou’ cannot work, send their children to school or receive social insurance benefits in towns and cities, unless they obtain at least a temporary ‘urban’ residence permit (entitling them to limited benefits). Although the conditions for obtaining this residence permit have been relaxed, the situation of migrant workers remains a major problem for today’s China, including in terms of labour law, as the author constantly reminds us.
In reading this book, the reader will probably be surprised by how labour law has developed in China, but, as the author makes a point of telling us, one of the challenges still facing China is how to enforce labour law effectively.
Translation from the French by Julie Barnes