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Labour and Rights in Contemporary China Beyond the Hegemonic Discourse

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Labour and Rights in Contemporary China Beyond the Hegemonic Discourse Scuola Dottorale di Ateneo Ca' Foscari Graduate School Dottorato di Ricerca in Lingue e Civiltà dell'Asia e dell'Africa Mediterranea Indirizzo in Studi sull'Asia Orientale Ciclo XXV - Anno di Discussione 2013 Labour and Rights in Contemporary China Beyond the Hegemonic Discourse Settore scientifico disciplinare di afferenza: L-OR/21 Tesi di Dottorato di Ivan Franceschini, matricola 791490 Coordinatore del Dottorato Tutore del Dottorando Prof. Attilio Andreini Prof. Renzo Cavalieri Table of Contents Introduction 3 CHAPTER ONE THE LAW AS A WEAPON? Paradoxes of the Discourse of Labour and Rights in China 7 CHAPTER TWO THE ALL-CHINA FEDERATION OF TRADE UNIONS Prospects for Institutional Transformism? 29 CHAPTER THREE CHINESE LABOUR NGOS A Real Force for Political Change? 52 CHAPTER FOUR MIGRANT WORKERS AND THE LAW Evidence from a Survey on the Italian Metal Mechanic Companies in Shenzhen and Chongqing 71 CHAPTER FIVE FROM THE DISCOURSE TO THE EXPERIENCE OF THE LAW Chinese Workers and Their Quest for Justice 89 CHAPTER SIX BEYOND THE REALM OF THE LAW The Scandal of the Black Brick Kilns as a Case Study 107 CONCLUSIONS 122 APPENDIXES Chinese Labour: Same Story, Different Perspectives 124 Pilot Research 140 BIBLIOGRAPHY 144 2 Introduction Even before the Maoist era, labour and rights have always been fundamental components of the international discourse on China. It is not a coincidence that one of the most prominent topics discussed at the first Conference of the International Labour Organization in 1919 was the issue of labour conditions in China.1 It was then proposed that China should adopt a social legislation, a request motivated more by the desire to protect Western workers from the "unfair" competition of a low-paid Asian workforce - and therefore to maintain social and political stability - rather than by a sincere concern for the plight of the Chinese coolies. Almost a century later, domestic political interests in the most developed countries are still determining the international narrative on labour and rights in China, with many voices in Europe and in the United States condemning once again the Chinese authorities for pursuing a development model which does not take into any consideration the misery of the workers, forced to produce in horrific conditions for extremely low wages. And, exactly as in 1919, the faces of those Western workers who have been driven out of work by an impossible competition with the "China price" are still borrowed to cover for political agendas of all colours. Yet, this narrative does not take into account the fact that in the past twenty years the Chinese authorities have been promoting a strong discourse on the rule of law among their citizens, including the workers. Contrarily to the Maoist era, when only State workers were given a series of entitlements in virtue of their higher political status, the new official discourse is universal - it does not distinguish between workers in different industries or ownership sectors - and is articulated in terms of rights, guaranteed by an increasingly elaborated body of laws and regulations. To further complicate the matter, the international view of Chinese labour tends to overlook the complexity of the interactions between China and the foreign capital, interpreting the flow of foreign direct investments towards China as 1 Sibille Van Der Sprenkel, "Labor legislation of the Chinese Soviet Republic", in W. E. Butler (ed.), The Legal System of the Chinese Soviet Republic, Transnational Publishers, New York, 1983, pp. 107-113. 3 an unidirectional process in which the Chinese authorities are omnipotent in setting the rules of the game and do not hesitate to sacrifice the well-being workers in the process. This over- simplified view does not consider the fact that in the past few years various attempts by the Chinese authorities to introduce regulations aimed at empowering the unions and the workers have been systematically thwarted by interferences coming from foreign investors and other actors. Behind these contradictions, we find a fundamental question: how to reconcile a State which promotes a strong discourse on labour and rights with a reality in which workers are blatantly exploited? Should the Chinese government’s commitment to labour rights be taken as simple propaganda or there is more to it? To answer these questions, it is important to understand how the official discourse of labour and rights is produced in China. This can be done only by analysing the dialectic tensions between the actors involved in the legislative process, highlighting the different agendas of the various stakeholders and their structural strengths and weaknesses. In spite of the hugeness of the task, this dissertation aims to be a first pace in the direction of a better comprehension of these dynamics. To achieve this goal, it offers a series of perspectives on how in China State, official union, civil society organizations and workers interact with each other to produce a very peculiar narrative of labour and rights, a narrative which unfortunately is rarely matched by reality. The first chapter will deal with the role of the State. Moving from an historical overview of the development of the labour market in China and its consequence for the identity of the "Chinese worker", this chapter will describe the process which led the Chinese authorities to adopt a body of labour laws and regulations. It will be argued that the Communist Party's turn to the law in labour relations was motivated more by the need to preserve its legitimacy and maintain social stability rather than by a sincere commitment to the cause of the workers. Particular attention will be paid to the contradictory forces which influence the legislative activity of the Chinese government, with reference to a series of particular cases happened in the past few years, i.e. the Labour Contract Law and the draft regulations on collective bargaining. In general, this chapter will highlight how the labour law in China remains a top-down initiative, in which rights are bestowed on the workers at the behest of a paternalistic State. The second chapter will consider the role of the Chinese official union, the All-China Federation of Trade Unions (ACFTU). To make sense of the dynamics of an organization of this magnitude, this chapter will focus only on the national level of the union hierarchy, 4 usually neglected because of its political embeddedness. In particular, the relations between the highest echelons of the ACFTU and the Party will be assessed from an historical perspective, with particular attention paid to the circumstances which led to a series of confrontations between the union leadership and the Party in 1951, 1956 and 1989. It will be argued that today, beneath the appearance of an unreserved submission to the Party, there may be the potential for an "institutional transformism" of the ACFTU which could lead to a more aggressive stance of trade unionism. This chapter will highlight how - even if for the time being the union is still totally subdue to the Party leadership and can barely claims to represent the workers - the necessity for the Party to prevent the risks of such "institutional transformism" allows the Chinese union to play a significant role in the drafting of labour laws and regulations, a factor which significantly influences the official discourse on labour and rights. The third chapter will deal with the role of Chinese non-governmental organizations (NGOs). While the available literature generally agrees with the idea that these grassroots organizations contribute to legal reform and raise social demands for legal justice, opening new spaces in which the Chinese people can take part in public affairs, this chapter will argue that Chinese labour NGOs are weak and unable to exert any significant influence on the political dynamics which inform the discourse on labour and rights in China. In particular, a detailed analysis of the relations between these organizations and the State, the workers and the international donors will highlight how Chinese NGOs are struggling as a consequence of a substantial lack of "social capital", a situation largely due to their strained relations with both the workers and the State. Without generalizing, it will be suggested that it is important that media, scholars and donors reassess their approach towards this sector of the Chinese civil society by dealing with it in a more pragmatic and less idealistic way. The fourth chapter will consider the relationship between Chinese migrant workers and the law. On the basis of a survey carried out in 2012 in six Italian metal mechanic companies in Shenzhen and Chongqing, this chapter will tackle the correlation between migrant workers' age and their knowledge and expectations towards the law. It will be argued that in order to gain a better understanding of the shifting dynamics of worker activism in today's China, it is important to avoid easy generalizations about the revolutionary potential of younger migrant workers. In particular, this chapter will put forward the idea that Chinese migrant workers' relationship with the law reflects an attitude of "misinformed enchantment", a term which implicates a basic ignorance of the most elementary provisions of the law but a certain confidence in the ability of the law to protect their rights and interests. While such 5 attitude may be seen as a proof of the success of the strategy of the Chinese authorities to use the legal system to boost their legitimacy, it will be argued that workers' trust towards the law can become a dangerous source of social tension, especially in the event that expectations are not matched by facts. The fifth chapter will move from the conclusions reached in the fourth chapter to describe the experiences of those workers who have tested the limits of the discourse on law and rights by trying to address their grievances through legal means.
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