China’s Trade Union Law provides all workers access to freedom of association and collective bargaining rights and, as of 2012, the right to democratically elect worker representatives; an issue still facing workers, however, is that the Chinese government sanctions only one union—the ACFTU (All-China Federation of Trade Unions)—and organizing outside of the ACFTU is illegal. Drawing on her assessment expertise in Chinese factories, Verité China Program Director Wenjuan Yao speaks with Vision, highlighting current issues in management interference, democratic election technicalities, and assessing workers’ rights to freedom of association and participation within the country’s single-union system.
Verité Vision: What is the current climate around freedom of association in China, and how do you assess FOA standards in countries where workers’ rights to participation are restricted by law?
Wenjuan Yao: In terms of assessment standards, we use those provided by the International Labour Organization (ILO); they are the core conventions regarding freedom of association and collective bargaining. If you look at the requirements for facility-level assessments, these international standards apply universally—no matter if workers’ rights are restricted or not by law. So, as long as the country has its own legal system that provides workers’ rights to freedom of association—whether limited or not—employers at the facility level have the obligation to obey those laws. For us to assess the compliance of facility management to workers’ rights on freedom of association, the answer is very simple: all employers need to respect and honor workers’ rights. The key here, though, is that facilities don’t try to interfere in any way with workers exercising those rights provided by law. It is very clear to us as auditors: you can’t ask facilities to disobey governmental and local laws, even where workers’ rights are restricted. And this is an important issue to bear in mind: for compliance assessments, we’re assessing the factories, not the country’s labor laws.
The problem in China is that the labor laws only sanction one union supported by the legal framework. Organizing outside of the ACFTU (All-China Federation of Trade Unions) is illegal; so, if we are in China assessing whether a factory promotes multiple unions in facilities, it’s not fair for them, because they are required to operate under law. If we walk into a Chinese facility and say, “You have to recognize multiple unions, and the workers can organize outside of ACFTU,” we’re not only putting the factories at risk—we’re also putting workers at risk. Since assembling outside the ACFTU framework is against the law, workers could be put into very dangerous situations for doing so. But on the other hand, we should also not be passive or inactive simply because countries like China restrict workers’ rights to freedom of association in one way or another when set against ILO standards, and we should not just put a “non-applicable” check next to standards pertaining to FOA. China does have laws that expressly support workers’ rights to freedom of association and collective bargaining, but in strict terms. We can therefore assess whether facilities are complying with the law.
In China, do you think workers’ rights are respected in comparison to countries with multiple-union systems, or do you think that there are issues within the single-union system?
Yes, there are definitely problems with the single-union system—not only in China, but in other countries with similar systems. This monopoly can often make unions ineffective. Within the Chinese structure, for instance, the single union (ACFTU) operates under the control of the Communist Party, which may mean heavy interference from the government in light of ILO conventions. But it’s not only an issue of interference—the unions are actually part of the Chinese governmental structure, which is very different from Western notions of unionization. The rationale for the structure is set up so that the workers are represented by an agency within the mainstream political system. Theoretically, the ACFTU should be able to represent workers within the political system, and in certain sects, that should make the system more effective because workers have a say in this mainstream political system. In reality, though, it’s very ineffective because the union structure tends to only listen to the people at the top—such as other Chinese governmental agencies (or any other authoritarian governance structure)—and not necessarily the workers that they are supposed to be representing. Because the ACFTU is part of the government, the agency should follow governmental rules and orders; when there is a conflict between the government’s policies/imperatives and workers’ interests, however, the ACFTU often ignores workers’ interests, which makes the system unproductive.
For example: At the early stage of economic reform, the ACFTU tended to play a marginal role within the system, since the priority of the governmental policy was to focus on more investment. When the government shifted its focus from development to social stability at the start of the 2000s, however, the ACFTU began gaining more momentum in setting up its own agenda with regard to representing workers’ interests. The important thing to understand is that the Chinese government is not a monolithic block like many people think; different agencies have their own focused interests to represent.
What can worker participation look like in worst case and best case scenarios in China, given realities within the country’s single-union system?
In the best case scenario—in a good Chinese factory—a worker union exists, and the union has signed a collective bargaining agreement with the factory in which there are annual wage raises for workers provided. Ideally, the union serves as a bridge linking workers and management, and as an additional channel for the workers to report their grievances; it also organizes worker welfare activities. The factories provide a space for the union to operate, which is required by law, and the union representatives are more or less elected democratically by the workers; if not elected, they are at least nominated by the factory and enjoy a high approval rating by workers. The union is also supported by the local ACFTU to effectively represent workers in the factory.
An issue, though—even in this best case scenario—is that sometimes there will not be democratic elections, or there will be so-called “democratic” elections where election results have to be approved by the local ACFTU. That’s the problem—a structural problem—but you can’t blame the factories for it.
In the worst case scenario, the factories can explicitly prohibit workers from organizing a union, in which case workers may try to take action against the factory. If there are strikes, if there are work stoppages, if there are workers who organize within this specific scenario, the factory could try to expel the workers for attempting to organize.
Do Chinese labor laws mandate the democratic election of union representatives? Are there situations in which factories place management in union/representation roles?
In the past, appointing management as union representation was actually allowed, and obviously led to severe problems with workers’ rights and interference; with the Enterprise Democratic Management Regulations set in 2012, though, this is no longer the case.
But here’s the issue: the democratic election of union leaders in facilities is a relatively new concept—the ACFTU began this democratic experiment in certain provinces several years ago. It’s just still not very widely spread in the private sector. Under the new legal framework, however, union leaders should be democratically elected, or if there is not a union, factories should implement an Employee Congress—and these representatives also need to be democratically elected, at least chosen in some form of an election. But not every facility—maybe the majority of facilities—have implemented democratic elections into their union system. This is, of course, not in the best interest of workers, but in a country where people are not accustomed to the structures of elections and democracy, we can not realistically expect that, due to the regulations mentioned above, workers immediately know how to exercise these rights to elect their representatives, let alone easily put them into effect. History tells us that translating rights on paper into real-life practice is a long journey, and one step at a time is better than no movement at all.
When you enter a Chinese factory to assess freedom of association/worker participation and workers’ rights standards, what assessment methods do you use?
When we organize assessments around these standards, we draw a distinction between workers’ rights to FOA and management practices to involve workers in decision making (worker participation and engagement).
Regarding workers’ rights to FOA, the key is to assess whether facilities respect and honor workers’ rights or, on the flip side, assess whether the facilities work against/interfere/restrict workers’ abilities or activities to exercise their legal rights. In other words, we do not require factories to promote workers’ rights to FOA, or even try to help organize a union for workers (because that’s control and interference), but we do check to see if workers are at least able to exercise their rights. We also assess if facilities bargain collectively in good faith with the union or worker representatives; again, this could be the ACFTU union or an Employee Congress.
Worker engagement and participation are very different concepts compared to workers’ rights to FOA, because they are issues in the hands of factory management—a management “best practice.” Even though countries like China may have laws restricting freedom of association, management practices can encourage worker participation in factory management decisions. That’s why we separate the two concepts: for worker participation and feedback, we assess against those best management practices; freedom of association, on the other hand, falls under worker responsibility, not management responsibility, because management’s involvement in union or representation activities is considered interference. Management can try to make a worker committee more effective; if it’s part of the worker engagement and participation practice, there’s no problem with that—but you can’t have management asking the union to be more effective.
When assessing worker engagement and participation, we use industry best practice standards as benchmarks to assess a set of facility practices covering worker communication, feedback, grievance and participation.
Do you see China labor laws evolving at all, or do you think the single-union system will remain in place? Are there significant shifts taking place in China around freedom of association and worker participation?
I don’t see the single-union policy changing in the short term, but I do see the trend of union democratization within the AFCTU getting stronger; their experiment with democratic elections of union leaders at base-level unions is the biggest evolution—trying to put more control in the hands of workers—and that is a very positive trend.
For more information contact Wenjuan Yao.