Consultation but no right to strike: a brief analysis of Guangdong's Regulations
on Collective Consultations and Collective Contracts (draft amendments)

Legal reform

 

Consultation but no right to strike: a brief analysis of Guangdong's Regulations on Collective Consultations and Collective Contracts (draft amendments)

A wave of strikes erupted in the Pearl River Delta last year. Apart from the usual conflicts regarding wages and labour conditions, another major reason triggering the strikes was unpaid wages and severance compensation related to factory relocation. More and more workers are taking collective action or calling strikes to make their demands heard. While local governments try to suppress these actions, it is impossible for them to cover up stories reported by the media. As an answer to the strike wave, the Guangdong Provincial Government launched a public consultation session to amend the draft of Regulations on Collective Consultations and Collective Contracts. The new regulations are meant to replace the Guangdong Regulations on Enterprise Democratic Management, aborted in 2010. Yet many details in the new regulations should be discussed.

 

The regulations spell out the conditions and procedures for collective consultation, the procedure to nominate representatives of the parties, contents of the consultation (such as wages, benefits, labour conditions, etc.) and materials which the employer must provide for consultation. Yet, the devil is in the detail; the draft also hints that strikes would be criminalized.

 

It is worrying that some articles (Articles 31, 32, 34 and 60) openly place restrictions on strikes and subject employees to much more severe punishment than employers, if they fail to abide by the proposed regulations. During the consultation period, workers are not allowed to engage in work stoppages or strikes as means to reject further consultation, or demand changes, or dissolve the current collective contract. Workers would face dismissal, wage deductions or even criminal charges if they incite or organize actions which violate the law. While employers are not allowed to threaten or induce workers to accept the contract, and are required to disclose the financial conditions of enterprises' operation, the “punishment” when the employers violate the law, is merely an order from the local government to correct their action. Such an imbalance of consequences is indeed unfair to workers.

 

The organized force of Chinese workers is still very weak, mainly taking the form of wild-cat strikes. The local trade unions share certain interests with the government and would not voluntarily organize grassroots workers, which makes the prospect of well-organized strikes in the near future nearly impossible. If the articles limiting industrial action are passed, there would be a ban on industrial actions during the consultation period. Therefore, the employers could deliberately prolong the consultation period to break up workers' organizing actions and give the police an excuse to suppress labour actions. Workers' representatives would then run an even higher legal risk.

 

Secondly, the draft regulations mandate between three and nine representatives from each side for collective consultation. It is an unnecessary restriction on the employees' side. Collective bargaining in Australia, the UK and the USA allows workers to elect their representatives with no upper limit. More importantly, the collective bargaining representatives must be elected by all workers voluntarily and freely; there is no requirement that they be represented by their union chairperson. Without freedom of association, there is a threat that the official unions would manipulate and distort the workers' wishes. Research recently conducted on the Shenzhen trade unions, conducted by university students from nine colleges, also confirms that even the so-called “directly elected” model unions have failed to represent workers (see our quarterly's cover story).

 

The regulations' public consultation has provoked heated debate. Many labour organizations, academics and even Chinese media have voiced criticisms similar to those mentioned above. They have also raised concerns over the lengthy mediation procedure proposed in the regulations. In China and Hong Kong, there is a long and formidable struggle ahead achieve collective bargaining legislation that can serve the workers’ needs.

Reference:
1. Guangdong's Regulations on Collective Consultations and Collective Contracts (draft amendments) http://www.rd.gd.cn/rdgzxgnr/flcazjyj/201310/t20131011_136865.html
2. The Hong Kong Confederation of Trade Unions' response to Guangdong's Regulations on Collective Consultations and Collective Contracts (draft amendments).
3. Editorials from Southern Metropolis Daily, “Legislation of collective consultation on wages, trade unions should not play a voided role”, 13 October 2013, http://epaper.oeeee.com/A/html/2013-10/13/content_1949636.htm
4. Paragraph 540, Executive summary of Freedom of association: Decisions and Principles of Committee on Freedom of Association, International Labour Organization (Chinese edition), 1996. See http://www.ilo.org/beijing/what-we-do/publications/WCMS_158513/lang--zh/...