Legal Aid Attorneys Chronicle Advances,

UNCLAS SECTION 01 OF 03 BEIJING 012273

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E.O. 12958: N/A
TAGS: ELAB EFIN ETRD PHUM PGOV CH
SUBJECT: Legal Aid Attorneys Chronicle Advances,
Challenges in Labor Law Enforcement


Sensitive But Unclassified; Handle Accordingly


1. (U) Summary: Labor Intern, accompanied by Labor
Officer, met with the Director and Staff attorneys of the
Peking University Women's Legal Aid Clinic June 9, 2006.
The attorneys said that, in their opinion, China?s current
legal system and labor law enforcement mechanisms are
better than they were twenty years ago, but have a long way
to go. While China's labor laws have strong protections
for workers, China lacks the ability to ensure that the law
is enforced. The legal aid lawyers argue that the
establishment of an independent inspection system would
prevent many violations of the labor law and protect
workers, especially in child labor, violation of wage and
hour laws and firing female workers for pregnancy. End
Summary.

Labor Laws, Enforcement Mechanisms Improving
--------------


2. (U) On June 9, 2006, Labor Officer and Labor Intern met
with Guo Jianmei, Director; Xu Weihou, Vice Director and
staff attorneys of Peking University Women?s Law Studies
and NGO Legal Aid Center to discuss enforcement of China?s
Labor Law. According to Director Guo, China?s labor laws
and enforcement mechanisms are getting better. In the past
10 years, many laws have been written and many
implementation measures have been established at the
provincial, municipal, and regional levels, Guo said. As
one example, the draft of the Labor Contract Law that was
issued in March 2006 states that employers must have
written contracts with their employees. This is to ensure
that workers have information about the job and pay, and to
provide a legal document that can be enforced. However, as
Director Guo pointed out, the draft had been somewhat
controversial because investors are worried that it will
tip the balance in favor of the worker instead of the
employer.

Legal Environment Improving with More Transparency
-------------- --------------


3. (U) Furthermore, Vice Director Xu said, the overall
legal environment is getting better. Regulatory
transparency has increased, citizens have been granted more
rights to speak out, political sensitivities have decreased,
and the media is playing a greater role, she said. She
cited the case of a woman in Hunan Province who the week
before had been arrested by railway police for collecting
empty bottles. The woman was charged with "disturbing the
peace" and was detained for five days. However, this
incident was brought to the media?s attention and stories
were broadcast on television and appeared on the internet.
The media pressure as well as expressions of concern from
citizens reached the senior local official, who ordered the
woman released immediately. Follow-on stories in the media
resulted in the railway company paying the woman
compensation of 6,000 rmb (about USD 750).

Improvements in the Judiciary Apparent
--------------


4. (U) Progress has been made in other areas as well, said
Director Guo. Specifically, the quality of judges has ben
improved, and the increasing soundness of the judicial
system is evident. In the past, many retired military
personnel were appointed as judges despite having no formal
training or background. This no longer takes place.
Currently, judges must pass an exam and receive a
certificate before they can undertake their judicial
responsibilities. China?s Supreme People?s Court now
issues judicial interpretations, case handling guidance,

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and other materials to help judges conduct court business,
Guo said.

Future Challenges: Women?s Rights in the Workplace
-------------- --------------


5. (U) China must confront a number of future challenges
in the labor sector, both Guo and Xu emphasized. In
Director Guo's opinion, women have fewer rights in the
workplace now than they had 20 years ago. Moreover,
minority women have even fewer rights. There are two
reasons why this is the case: 1) they have little or no
idea of their rights; and 2) once they become aware of
their rights, they do not know to whom to turn to advice or
help, if there is any available.


6. (SBU) Equally importantly, there is a discrepancy
between international and domestic labor law standards,
Vice Director Xu said. China has accepted an increasing
number of international law standards, but that has been
done only for the nation?s political image, while very
little has been done to actually enforce the laws. One
example of the international-domestic labor law discrepancy
in China is that most multinational corporations have good
internal regulations mandating equal treatment and
forbidding discrimination on the basis of gender, but
similar provisions are not yet included in China?s laws,
said Xu.


7. (U) In addition, Vice Director Xu said, conflict arose
between international investment and domestic labor laws
when the Central Government proposed the Labor Contract Law
draft in March. According to Xu, thousands of foreign
funded companies in Shanghai said that if the law passed,
they would withdraw their investments.

Labor Laws Do Not Match Current Labor Situation
-------------- --


8. (U) The change from a planned economy to a market-
driven economy created labor issues that the Central
Government has yet to rectify, the legal aid attorneys said.
Under the planned economy, most workers worked in State-
Owned Enterprises (SOEs) and were well protected by the law
because the laws were written to apply to SOEs, Vice
Director Xu said. With the huge shifts from the planned to
the market economy, and from SOEs to private businesses,
most workers now work in non-publicly owned, private sector
enterprises, or in the informal sector, in small
restaurants, family owned businesses, or as household staff.
As a result, the labor laws that were set up to meet the
needs of the planned economy are simply not adequate to
cover the current range of employment problems workers face,
said Vice Director Xu. SOEs provided workers with better
protections under the planned economy than do private
companies in the current market-driven economy.


9. (U) Vice Director Xu provided three examples: 1) In
the past female employees working in SOEs received paid
maternity leave, as required by law. Now, however, there
are many reported cases of women being fired immediately
after the employer discovers that they are pregnant. 2) In
Zhejiang Province a factory building collapsed and killed
20 workers, five of whom were child laborers. Vice
Director Xu visited this factory with the Ministry of Labor
and Social Security (MOLSS),and found a number of other
family-sized factories who had also hired child laborers.
The managers of these factories said that they did so
because children are cheaper, easier to manage and generate
higher profits. 3) Several weeks ago, it was reported in
the news media that a woman in Sichuan Province had died of
over work (guo lao si) after having worked 10-hour days for

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several consecutive days. The market economy gives
employers more choices, Director Guo said, but what choices
are there for workers? Vice Director Xu traveled with
MOLSS to Zhejiang, Hunan, Hainan and Guangxi Provinces in
2002; she discovered that employees had neither an
awareness of their rights as workers or any idea of what
constituted an abuse of their rights.

Needed: Inspectors Free of Local Influence
--------------


10. (U) Attorneys Guo and Xu both agreed that the main
reason for labor abuses throughout China is because of the
collaboration between corrupt local officials and
businessman. Although MOLSS and the local labor and social
security bureaus (LSSB) have established an inspection
mechanism, Guo and Xu say that local officials have a
special relationship with local businessmen (guanxi).
These officials are forewarned about inspections, and are
able to remove child laborers, cut back on excessive hours,
and make it appear as though work is being conducted in
accordance with the law, even when that is definitely not
the case. Corruption thus compounds the problems of an
inspection system that is both understaffed and overworked,
the attorneys said. Directors Guo and Xu both maintain that
the best way to foil corruption is to establish an
investigative team that is independent of local officials.
Such a system, they said, would give the investigative team
the ability to carry on difficult investigative
responsibilities without worrying about the consequences of
cracking down on the child labor, wage and working hour
violations and unsafe working conditions that continue to
plague China.


11. (SBU) Comment: This group of legal aid attorneys,
whose clinic handles numerous important cases, has provided
an insightful description both of the advances that China
has made in enforcing the labor law, and of the kinds of
changes China still must make to meet the ongoing
challenges of protecting Chinese workers.

Randt