CHINESE AND U.S. EXPERTS DISCUSS COAL MINE

UNCLAS SECTION 01 OF 07 BEIJING 023804 SIPDIS SIPDIS SENSITIVE DEPT PASS USTR FOR KARESH, A. ROSENBERG, MCCARTIN LABOR FOR ILAB TREAS FOR OASIA/ISA-CUSHMAN USDOC FOR 4420/ITA/MAC/MCQUEEN GENEVA FOR CHAMBERLIN E.O. 12958: N/A TAGS: ELAB PGOV PHUM EMIN CH SUBJECT: CHINESE AND U.S. EXPERTS DISCUSS COAL MINE SAFETY-RELATED LEGAL ISSUES IN CHINA (U) SENSITIVE BUT UNCLASSIFIED: NOT FOR INTERNET DISTRIBUTION. ¶1. (SBU) Summary: On October 21-22, the American Center for International Labor Solidarity (ACILS) co- hosted a conference on "Legal Means to Address the Problem of Mine Accidents" with Chinese experts in Beijing. The Chinese experts were extremely candid about the seriousness of China's mine safety problem, and the reasons behind it. They described a failing mine safety regime based on an incomplete legal framework with poor enforcement. They described how mine owners collude with corrupt government officials to undermine this regime, and noted that mine workers have virtually no effective means of protecting their own rights. Chinese experts were very interested in U.S. experiences, and how U.S. laws, regulations and enforcement mechanisms have led to a vastly superior safety record. Most Chinese experts showed a deep- rooted suspicion of private ownership of mines, and even private sector involvement in providing work injury insurance. U.S. presentations were well received, and Embassy believes Chinese experts and policy makers are interested in, and would be receptive to, more discussion of how the United States has achieved its superior record on occupational safety and health (OSH) within the context of a market economy. End summary. ¶2. (U) On October 21-22, ACILS and the China University of Political Science and Law co-hosted an academic conference on "Legal Means to Address the Problem of Mine Accidents." The proceedings painted a picture of a fragmented and ineffective legal framework for OSH regulation, enforcement and accident compensation. Participants included an influential cross-section of labor, OSH and work injury insurance officials and experts. Several prominent Chinese academic institutions were represented, as were the Ministry of Labor and Social Security (MOLSS),the State Administration for Work Safety (SAWS),the All China Federation of Trade Unions (ACFTU),and other government and ACFTU-affiliated institutions. ACILS Labor Law Counsel/China Program Director Earl Brown and U.S. mine safety consultant Joe Main also addressed the conference on the U.S. experience. Laboff and Labor Assistant participated as observers. A FRAGMENTED LEGAL FRAMEWORK -------------- ¶3. (U) China's system for compensating victims of mine accidents has two main components according to a senior official from MOLSS: 1) a social insurance system, based on the Labor Law and Civil Service Law, which provides benefits to accident victims directly from the local government budget or government administered social pooling fund, and 2) civil compensation for victims which exempts employers from legal liability. The social insurance system is the benefit provider of first resort. ¶4. (U) The social insurance system currently covers 95 million Chinese workers, according to MOLSS, 15 percent of whom are in "high risk" industries. Employers in high risk industries pay higher social insurance contributions, but the system does not track the safety records of individual employers. Compliant employers effectively subsidize non-compliant employers. Benefits are based on lost wages, with death benefits set administratively at 48-60 months wages. According to several participants, the social insurance is fairly reliable, as long as the employer participates in it, but can be slow in paying claims. BEIJING 00023804 002 OF 007 ¶5. (U) Under civil law, lump sum or sustained compensation payments are based on the victim's salary, the level of injury and duration of disability. However, China has no specific regulations on what civil damages should be. These appear to be up to the discretion of local judges. In practice, according to conference participants, workers and their families rarely seek civil compensation, especially if they are covered by social insurance. ¶6. (U) The Law on Production Safety requires employers to purchase work injury insurance for employees "in accordance with the law," and allows workers to pursue compensation claims against the employer "if, according to the civil laws, they have the right to do so apart from enjoying the employment injury insurances." Conference participants noted that in practice this is a very difficult process and rarely used. Courts can also reject such cases if the employee is covered by social insurance. ¶7. (SBU) Commercially available liability insurance also plays a role in accident compensation, in some locations and some industries. MOLSS noted that some government agencies, e.g., the Ministry of Construction, require employers to purchase liability insurance policies for workers. Private insurance only comes into play for claims not covered by the social insurance program. One presenter called for a greater role for private insurance companies, arguing that they could play an important role in bringing mines into compliance with health and safety standards, but presentations from MOLSS and other Chinese presenters revealed deep-rooted doubts about private sector involvement in a social welfare function. ¶8. (SBU) There was considerable discussion at the conference of the use of administrative orders to set minimum compensation standards for injury or death. Shanxi Province, for example, enacted a regulation in 2006 requiring coal mine owners to pay standard compensation of 200,000 yuan (about USD 25,000) in the case of mine-related deaths. A participant from MOLSS criticized such administrative standards as having no basis in any overarching law, and running contrary to the principal of risk sharing. He added that in some cases, mine owners stopped contributing (illegally, but without consequence) to social insurance programs after such administrative orders went into effect. These employers argued that there is no reason to pay into an insurance system that does not reduce their potential liability. Other participants acknowledged that such orders are "extra-legal" but said they are effective -- mine deaths dropped 10 percent in Shanxi after the regulations when into effect. Despite debate over the legality of administrative compensation standards, there is strong support among academics at the conference for higher standards of compensation to increase the cost to employers of accidents. ¶9. (SBU) Conference participants showed strong interest in greater use of criminal penalties to prevent and punish mine accidents. Several conference participants noted that articles of the criminal code on forced labor and major accidents could potentially serve as a basis for criminal penalties, but that the criminal code focuses on the results of negligence, not on negligence itself. One participant said that under current law, a mine owner who orders production operations to proceed under conditions he knows to be dangerous cannot be held criminally accountable unless there is an accident. One observer noted that the BEIJING 00023804 003 OF 007 crime of "negligence" is too weak a charge, and that the criminal code should be amended to allow charges of premeditated murder in cases of mine accidents resulting from negligence. ¶10. (U) The 1992 Law on Mine Safety gives county- and higher-level governments authority over mine supervision and inspection, but one presenter noted that the law has not been revised to reflect the economic transition that has taken place since its passage. He pointed out that a strict reading of the law would make it non-applicable to illegal mines, for example, and that the State Council's creation of the State Administration for Work Safety (SAWS) and the State Administration for Coal Mine Safety (SACMS),the Chinese Government's flagship agencies for protecting mine workers, may not technically even be legal. Other presenters were critical of the 2002 Law on Production Safety, including for being biased in favor of production over workers interests. UNEVEN IMPLEMENTATION AND ENFORCEMENT -------------- ¶11. (SBU) Almost without exception, Chinese presenters described China's legal framework for addressing the mine accident problem as "incomplete," and enforcement as weak. MOLSS noted that although participation in the workplace injury insurance system is mandatory, many mine owners simply ignore it. Penalties for not contributing are limited to a few thousand yuan (several hundred dollars),insufficient to force compliance. When accidents occur in mines where employers have not paid their insurance contributions, some local governments simply bow out, advising victims and their families to seek civil compensation, rather than paying benefits to the victim and pursuing back contributions from the employer. There is no guarantee fund to cover benefit payments in cases where the employer is uninsured or absconds. The social insurance contribution collection and pooling system is ill-defined and varies widely by location. ¶12. (SBU) Social insurance programs do not cover informal employees, and when employers hire labor through labor contractors or other middlemen, the law provides little guidance regarding how to determine who the "employer" is. (A draft Labor Contract Law, currently under consideration in the National People's Congress, may help to clarify this point.) One presenter noted that the majority of mine workers are migrant workers who do not enjoy full protection under the law in any case. While the Labor Law makes no distinction between migrants and other workers with respect to rights and benefits, migrants often have difficulty participating in local-government administered social insurance programs, joining local union branches, or receiving legal protection from local law enforcement authorities or courts. ¶13. (SBU) MOLSS reported that 26 million migrant workers are covered by work injury insurance in China in all industries, but that no one knows how many migrants are not covered. (Estimates of the total number of migrant workers in China range from 120-200 million.) MOLSS hopes to achieve full workplace injury insurance coverage for migrant workers in the mining and construction industries by the end of 2008, and is currently exploring ways to do this without creating a new, duplicative system. ¶14. (SBU) A participant from the State Council Legal Affairs Office criticized the system of accountability for mine accidents. He said Central Government BEIJING 00023804 004 OF 007 policies dating back to 2000, which hold local government officials accountable for mine accidents that occur within their jurisdictions, perversely encourage these officials to cover up accidents or pass off mine supervision responsibilities to younger, less powerful officials. He added that regulations governing mine accident investigations are overly bureaucratic. Even local governments interested in conducting investigations do not have the resources to do so, especially given the large number of government agencies required by law to be involved. ¶15. (SBU) Corruption was a major topic of discussion. Numerous presenters blamed the high frequency of mine accidents on collusion between mine owners and local government officials responsible for enforcing mine safety laws. One professor noted that when compensation is paid to accident victims in China, there is generally no follow-up to determine whether the accident resulted from negligence by local officials. Another professor, illustrating the point that too many local government officials own shares in small coal mines, described meeting a prison guard with a share in a local coal mine. He added that local governments cannot be relied upon to investigate accidents. Local governments perform administrative investigations before criminal investigations take place, giving guilty parties an opportunity to manipulate the accident site. One presenter noted that many mine accidents, including accidents with large numbers of fatalities, go unreported, and that the actual number of mine fatalities and injuries is unknown. If not for media attention, one participant said, there would be even more violations. ¶16. (SBU) A vocal group of participants argued that China should amend the criminal code to create meaningful criminal sanctions against mine owners or government officials whose negligence leads to mine accidents. One presenter argued that mine owners who knowingly allow production to continue under dangerous conditions should be charged with premeditated murder. Alternatively, he said, China could amend the criminal code to create a new crime of "compromising production safety," as long as this crime carried heavy sentences sufficient to deter illegal behavior. Another presenter suggested that China should add a new crime to the criminal code for "dereliction of duty" in order to make government officials legally liable when they fail to enforce mine safety rules. ¶17. (U) The definition of what constitutes a workplace injury is also an issue. For example, one law school professor said that there is no legal framework for dealing with injuries arising from prolonged exposure to hazardous conditions, e.g., lung disease. Without a specific accident in the workplace, there is no way to compensate workers for their injuries. ¶18. (SBU) Many presenters said China basically has an adequate legal and administrative framework for mine safety enforcement, but that the problem lies in coordination and enforcement. One presenter argued that legal responsibility for different aspects of mine safety supervision and enforcement is unclear, and that key functions fall through the cracks. He described supervision and inspection activities by local mine safety authorities as "perfunctory." Many presenters pointed out that penalties for violations, including serious violations, are too weak to deter negligence or encourage investment in better safety equipment, training and practices. SAWS reported that cooperation between its local mine safety inspectors who report to Beijing and those who still report to BEIJING 00023804 005 OF 007 local governments remains problematic. THE ROLE OF TRADE UNIONS -------------- ¶19. (SBU) By most accounts, the ACFTU plays no significant role in preventing mine accidents or protecting the interests of victims. The ACFTU has a statutory right to supervise enterprise compliance with OSH regulations and to participate in mine accident investigations. However, academics at the conference sharply attacked the union for its weakness and its failure to represent its members in court. One academic described the ACFTU to Laboff during a coffee break as a "fake union." One presenter told the conference that ACFTU unions are sometimes under the control of the enterprise or its managers, and that these unions side with management in pursuit of their own personal interests. The presenter added that despite the large number of mine accidents that have occurred, he knows of no instance in which a union branch has ever stood up to confront management on behalf of workers' interests. Several presenters noted that despite the special status afforded to ACFTU by law, mine workers, especially migrant workers, have no bargaining power, and that the union does not protect the workers' right to call attention to OSH violations in their workplaces. ¶20. (SBU) ACFTU representatives agreed that the union needs to increase its efforts and offered no examples of cases in which ACFTU union did stand up against employers. One ACFTU presenter even said that the union's level of activity in OSH work at the enterprise level is in "obvious decline." She attributed the union's weakness to the lack of a formal, legally-established tripartite OSH consultative mechanism. She described ACFTU's legal role as participating in the "democratic management" and "democratic supervision" of the enterprise, meaning that it should encourage and assist the government in supervising OSH compliance, point out problems and raise "constructive suggestions" that benefit both workers and the enterprise. There was no discussion of strikes, halting production at non- compliant mines, or defending workers who wish to exercise their legal right to remove themselves from dangerous working conditions. ACFTU experts said the union is working with the Ministry of Justice to establish new legal aid mechanisms for workers, and trumpeted a program it is running to train 100,000 experienced coal miners as mine safety officers. Even in the context of these limited programs, however, the ACFTU expert warned against over-inflated expectations, given the ownership structure of coal mines and the legal framework for protecting workers' interests. INTERESTED IN U.S. EXPERIENCE -------------- ¶21. (SBU) Several Chinese participants cited the far superior mine safety record in the United States, and showed interest in learning from the U.S. experience. Brown's and Main's presentations on U.S. law, accident prevention and compensation practices were very well received. Chinese participants were particularly interested in how the U.S. keeps track of who holds financial interests in coal mines, and whether such information is considered trade secrets. Explanation of U.S. public disclosure rules led several Chinese participants to conclude glumly that even if similar regulations were enacted in China, owners would circumvent them by buying and holding shares in another person's name, or simply eliminating the paper BEIJING 00023804 006 OF 007 trail that documents their ownership. ¶22. (SBU) Chinese participants showed strong interest in U.S. laws under which employers, equipment manufacturers, or other parties could face criminal charges for intentional negligence, even in cases where no accidents or injuries occur. Discussion of U.S. law sparked debate among Chinese participants about how to use criminal law to punish and deter illegal or unsafe mining practices. Some Chinese participants were intrigued by the idea that misrepresentation or fraud could itself lead to criminal sanctions. Several Chinese participants lamented that existing Chinese criminal law focuses on the consequences of criminal negligence, rather than the criminal negligence itself. ¶23. (SBU) Chinese participants were interested in U.S. rules which allow union members to demand safety inspections at any time, at the employer's expense. They also showed strong interest in U.S. and third country models for Labor-Management Safety Committees. LOOKING TO THE STATE FOR SOLUTIONS -------------- ¶24. (SBU) The Chinese participants at the conference presented a variety of viewpoints, but were generally biased against the private sector, and skeptical that market and civil mechanisms could effectively protect workers' interests. Several participants suggested that private ownership of mines leads inevitably to non-compliance with OSH laws and regulations, that the private sector is not "moral" enough to play a significant role in providing workplace injury insurance, or that the profit motive undermines any possibility of achieving a balance between sustained production levels and respect for workers' rights. Participants were not blind to the Chinese Government's failure to adequately resolve mine safety problems, but still called for an even greater state role -- tougher laws to deter corruption, stronger administrative and criminal penalties, and increased inspection and oversight to prevent mine accidents and improve working conditions. A CHANCE TO MAKE AN IMPACT -------------- ¶25. (SBU) Comment: The Chinese Government claims to be serious about improving mine safety, and worker safety in general, but has no clear strategy. Chinese OSH experts at the conference were well aware of the problems China faces, and see the United States as one country which has valuable experience to offer. Events like the conference on "Legal Means to Address the Problem of Mine Accidents" provide an opportunity for American presenters to introduce ideas that might not come naturally to China's bureaucracy or influential academics. At the same time, the candid presentations of Chinese experts provided valuable insight into China's management of labor-related issues that could potentially affect China's social stability. Embassy believes the conference was beneficial for both sides, and thoroughly in line with the goals of our Letters of Understanding with the Chinese Government on labor issues. The conference also brought to light key themes which the USG agencies may wish to revisit when discussing OSH issues with China. These include: -- OSH is about rule-of-law, not property rights. Private ownership of mines and other enterprises is not inconsistent with high OSH standards. For example, the U.S. coal industry, with 100 percent of BEIJING 00023804 007 OF 007 mines in private hands, has an OSH record far superior to China's. -- The key to safe and healthy workplaces is a functioning regulatory framework, combined with a well-defined system for legal liability and effective enforcement. -- Civil law can provide just compensation for accident victims and their families, and effectively deter OSH violations, provided that damages are well- defined and significant. -- Private insurance can play a very useful function, not only in sharing risk, but also by providing an additional layer of scrutiny over the enterprises covered by their policies. Private insurance companies can base insurance premiums on an employer's safety record, effectively forcing the non-compliant employers to subsidize the compliant. -- Worker involvement in monitoring OSH conditions and reporting violations to management and/or relevant government agencies can be extremely effective, but only when workers are free to perform this function without interference or fear of reprisal. End comment. RANDT