China (includes Tibet, Hong Kong, and Macau)
Part II

Other Societal Abuses and Discrimination

The household registration system continued to result in widespread discrimination against Chinese from rural areas. Because they could not change their household registrations, many migrants living and working in urban areas were denied access to public services such as education and health care, as well as pension benefits, unemployment, and other social insurance programs. Where public services were available to migrant families, they rarely reached a standard equal to those of registered urban residents.

No laws criminalize private homosexual activity between consenting adults. Societal discrimination and strong pressure to conform to family expectations deterred most gay individuals from publicly discussing their sexual orientation. Published reports stated that more than 80 percent of gay men married because of social pressure. In what officials said was a campaign against pornography, authorities blocked the overseas Web site gaychinese.net for three months. Other Internet sites on gay issues that were not sexually explicit were also blocked during the year.

Under the new contagious disease law and adopted regulations, employment discrimination against persons with HIV/AIDS and hepatitis B is forbidden, and provisions allow such persons to work as civil servants. However, discrimination against the estimated 650,000 persons with HIV/AIDS and approximately 10 million hepatitis B carriers remained widespread in many areas. Hospitals and physicians sometimes refused to treat HIV-positive patients. During the year a number of hepatitis B carriers sued local government institutions to enforce their rights to work and study. While they won judgments in some cases, widespread discrimination remains. In October the Ministry of Health criticized local officials in Urumqi, Xinjiang for expelling 19 hepatitis B carriers from public schools. The criticism was carried in the national press, but no remedies were reported. Persons with HIV/AIDS likewise suffered discrimination and local governments sometimes tried to suppress their activities. In April Jilin Province authorities blocked a group of HIV-positive persons from accepting free travel to visit the Great Wall. At the same time, international involvement in HIV/AIDS prevention, care, and treatment, as well as central government pressure on local governments to respond appropriately, brought improvements in some localities. Some hospitals that previously refused to treat HIV/AIDS patients now have active care and treatment programs, because domestic and international training programs improved the understanding of local healthcare workers and their managers. In Beijing, dozens of local community centers encourage and facilitate HIV/AIDS support groups.

Some NGOs working with HIV/AIDS patients and their family members continued to report difficulties with local government, particularly in Henan Province where thousands were infected in government-run blood selling stations during the 1990s. Henan authorities were successful in providing free treatment to persons with HIV/AIDS. However, foreign and local observers noted that local governments were reluctant or even hostile towards coordinating efforts with NGOs and preferred to work independently.

Scholarly studies by Chinese indicated that discrimination in employment based on height and physical appearance was both legal and common.

Section 6 Worker Rights

a. The Right of Association

Although the law provides for the freedom of association, in practice workers were not free to organize or join unions of their own choosing. The All-China Federation of Trade Unions (ACFTU), which was controlled by the CCP and chaired by a member of the Politburo, was the sole legal workers' organization. The trade union law gives the ACFTU control over all union organizations and activities, including enterprise-level unions, and requires the ACFTU to "uphold the leadership of the Communist Party." Independent unions are illegal. In some cases the ACFTU and its constituent unions influenced and implemented government policies on behalf of workers; however, the CCP used the ACFTU to communicate with and control workers.

Already established in the state-owned sector, where union representatives frequently held senior management positions, the ACFTU worked throughout the year to establish its unions in the nonstate-owned sector. Union membership is low in both domestic and foreign-invested private companies. During the year the ACFTU began a campaign to establish unions in foreign-invested enterprises. By year's end, the ACFTU claimed to have established unions in 60 percent of foreign-invested enterprises and 31 percent of all nonpublic enterprises. In 2005 the ACFTU reported that its membership had reached 150.3 million or 69 percent of the 217 million urban workers, an increase of 9.7 percent over the previous year.

Since 2004 ACFTU has made efforts to expand control over nonunionized workers. A large rural labor force, consisting of approximately 540 million persons, including 300 million agricultural workers, was unorganized; farmers had no union or similar organization. Few of the 130 million rural residents working in township and village enterprises were unionized. Of the 100 to 150 million rural migrants who worked in the cities, the ACFTU claimed that a total of 14 million had joined the union. The Ministry of Construction reported that 11 million of the 40 million migrant workers in the construction industry were union members. However, most migrants working in low-value-added jobs in the manufacturing and service sectors were not represented and were easily exploited. Although migrant workers were first permitted to join the union in 2003, by year's end only 13.8 percent of the migrant workforce was "unionized," and it was not clear what benefits they derived from union membership.

Although the law states that trade union officers at each level should be elected, most were appointed by higher levels of the ACFTU, often in coordination with employers. In areas where an experimental program allowed direct election of union officers, regional ACFTU offices and local party authorities retained control over the selection and approval of candidates.

Some workers acted outside the ACFTU structure to demand back wages, pension or health insurance contributions, or other benefits owed by employers. The government took action against some of these workers, especially when they engaged in organized campaigns. Some workers who complained to local labor and social security bureau offices about working conditions reported that they faced harassment from their employers and police, and sometimes from labor bureau officials. During the year labor rights activists complained throughout the year of police surveillance, including interviews with police and police background investigations of their family members. In November Shenzhen officials investigated the activities of five labor NGOs for their involvement in an organized petition drive to reduce labor arbitration fees. Shenzhen authorities confiscated several computers and shut down two of the NGOs.

The trade union law provides specific legal remedies against antiunion discrimination and specifies that union representatives may not be transferred or terminated by enterprise management during their term of office. Collective contract regulations provide similar protections for employee representatives during collective consultations. The degree to which these provisions were enforced was unknown.

Labor activist Xiao Yunliang was released on February 23, three weeks before the end of his four year prison sentence. According to human rights NGOs, Xiao and his family continued to suffer harassment after his release. Other labor activists, detained in previous years, were reportedly still in detention at year's end. These included Yao Fuxin, Shao Liangchen, Hu Shigen, Wang Sen, Zhang Shanguang, He Chaohui, Yue Tianxiang, Miao Jinhong, Ni Xiafei, Huang Xiangwei, Li Xintao, Kong Jun and Du Hongqi, Gao Hongming, Hu Mingjun, Li Wangyang, Liu Zhihua, Luo Mingzhong, Luo Huiquan, Ning Xianhua, She Wanbao, Wang Miaogen, Yang Jianli, and Zhao Changqing.

Civil rights lawyer Gao Zhisheng, who had defended the rights of Chinese workers, labor activists and other rights activists for many years, was detained in August and later arrested on September 21 on "suspicion of inciting subversion of state power." His office was suspended by the Beijing Bureau of Justice for one year in November 2005 shortly after he sent a letter to the president and premier, calling for an end to widespread detention of activists and after he had refused to withdraw from politically sensitive legal cases as demanded by Beijing officials.

b. The Right to Organize and Bargain Collectively

The labor law permits collective bargaining for workers in all types of enterprises; however, in practice, collective bargaining fell far short of international standards. Under the law, collective contracts are to be developed through collaboration between the labor union and management and should specify such matters as working conditions, wage scales, and hours of work.

The trade union law specifically addresses unions' responsibility to bargain collectively on behalf of workers' interests. Regulations required the union to gather input from workers prior to consultation with management and to submit collective contracts to workers or their congress for approval, but it was not clear to what extent these provisions were carried out in practice. Moreover, without the right to strike, workers had only a limited capacity to influence the negotiation process. In the private sector, where official unions were few and alternative union organizations were unavailable, workers faced substantial obstacles to bargain collectively with management. The revised company law, which was passed in October 2005, recognizes the role of the labor union in representing employees in signing a collective agreement with a company. It also provides for employee congresses to enable employees to play a role in the democratic management of the company.

At the end of 2005 the ACFTU reported that collective contracts covered 103.8 million workers. Many of these contracts only covered wages. Officials estimated that 80 percent of collective contracts are prefabricated contracts adopted with no negotiation. Collective contracts generally served as minimum standards for individual contracts between employers and employees and generally mirrored the law and local minimum labor standards.

The law provides for labor dispute resolution through a three stage process: in-house mediation, labor arbitration, and litigation. The ACFTU reported that in all of 2005 there were 294,000 disputes, a 17 percent increase over 2004. Two-thirds of these concerned wage or social welfare insurance benefits. According to academics, collective disputes made up 6 percent of the total but accounted for 55 percent of the workers involved in the disputes. A smaller percentage of disputes settled through mediation in the workplace than in previous years, a fact some academics attributed to the conflict between the ACFTU's dual roles as convener of the mediation body and as worker representative.

The law does not provide for the right to strike. The trade union law acknowledges that strikes may occur, in which case the union is to reflect the views and demands of workers in seeking a resolution of the strike. Some observers interpreted this provision to offer a theoretical legal basis for the right to strike. However, the government continued to treat worker protests as illegal demonstrations, indicating that there was still no officially accepted right to strike.

Worker protests occurred throughout the year (see sections 2.b. and 3). Most involved actual or feared job loss, wage or benefit arrears, allegations of owner/management corruption, dissatisfaction with new contracts offered in enterprise restructuring, failure to honor contract terms, or discontent over substandard conditions of employment. In November the Hong Kong press reported that 1,000 laid-off former employees of a bankrupt automobile factory in Gansu Province surrounded the company headquarters, alleging that the company did not pay agreed severance compensation. In August bus drivers in Huaibei, Anhui Province started a spontaneous strike to protest changes in their wages and benefits. While some protests were tolerated, the government took swift action to halt protests that became large or that officials deemed embarrassing.

On February 10, more than 1,000 workers at a textile factory in Shandong staged a strike against low pay and pay disparity in favor of the managers. On March 13, 3,000 to 4,000 workers at a textile factory in Kunming staged a four-day strike against the plant's restructuring and compensation plans. On April 3, thousands of workers at a Hong Kong-owned furniture factory in Shenzhen staged a protest against long working hours and exploitative and abusive treatment. In July more than 1,000 workers at a plastic toy factory in Dongguan, Guangdong Province, rioted over allegations of inadequate pay and working conditions, particularly excessive overtime, and protesters clashed with police and company security. Dozens of workers were detained after the two-day protest. In August bus drivers in Huaibei, Anhui Province started a spontaneous strike to protest changes in their wages and benefits. On November 13, more than 1,000 workers of a state-owned, transportation enterprise in Gansu province staged a protest against the company's restructuring plan, which forced 1,448 workers to sign a "laid-off" agreement. In some cases protesting workers were offered payments that met at least a portion of their demands. On November 9, the Shenzhen Migrant Workers Association was forcibly closed down for organizing a mass petition to lower the government's labor dispute arbitration fee (see section 6.a.).Police sometimes detained protest leaders and dispersed demonstrations. In December 50 laid-off middle managers from a state-owned bank were detained when they tried to take a demonstration to the Beijing district where most senior government leaders lived.

There are no special laws or exemptions from regular labor laws in export processing zones.

c. Prohibition of Forced or Compulsory Labor

The law prohibits forced and compulsory labor, including by children; however, forced labor was a serious problem in penal institutions. Detainees in reeducation-through-labor facilities were required to work, often with little or no remuneration. In some cases prisoners worked in facilities directly connected with penal institutions; in other cases they were contracted to nonprison enterprises. Former prison inmates reported that workers who refused to work in some prisons were beaten. Facilities and their management profited from inmate labor.

The government cooperated throughout the year to resolve a number of cases that alleged products produced with prison labor were exported to a foreign country. Although the government prohibits forced and compulsory labor by children, some child trafficking victims were reportedly sold into forced labor (see section 5).

It remained common for employers to withhold several months' wages, or to require unskilled workers to deposit several months' wages, as security against the workers departing early from their labor contracts. Although this practice was illegal, the government did not emphasize controlling it.

On March 27, 31 migrant workers, including child workers, were freed from a Shanxi Province brickworks where they were forced to work between 14 to 18 hours a day with no pay under close 24 hour scrutiny by a work gang leader and six guards.

d. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits the employment of children under the age of 16, but the government had not adopted a comprehensive policy to combat child labor. The labor law specifies administrative review, fines, and revocation of business licenses of those businesses that illegally hire minors. The law also stipulates that parents or guardians should provide for children's subsistence. Workers between the ages of 16 and 18 were referred to as "juvenile workers" and were prohibited from engaging in certain forms of physical work, including labor in mines.

A decree prohibiting the use of child labor provides that businesses illegally hiring minors or in whose employ a child dies will be punished via administrative review, fines, or revocation of their business license. The decree further provides that underage children found working should be returned to their parents or other custodians in their original place of residence.

According to a study by a Hong Kong-based labor rights NGO, the use of child labor is on the rise along the country's eastern coast in recent years. While poverty remains the main reason, inadequacy of the mandatory education system, rising market demand due to labor shortage and potential child labor supply outside the formal labor market also contribute to this long-term problem.

Reliable statistics on the prevalence of child labor are not available. The government acknowledged the problem of child labor, and noted that it was relatively prevalent in certain industries. The government also maintained that the country did not have a widespread child labor problem and that the majority of children who worked did so to supplement family income, particularly in impoverished rural areas. Although nine years of education (through age 16) is compulsory, the high cost of basic education caused some children to drop out of school to seek work; other children worked while in school. In March Premier Wen Jiabao pledged that the government would eliminate tuition fees for rural students receiving compulsory education by the end of the year, beginning with the poorest regions. Tuition fees have since been eliminated in many areas but other miscellaneous costs (food, textbooks, etc.) are a major burden, especially for rural residents.

State-run media reported on provincial bureau investigations into child labor cases, as well as punishment of factory owners who employed children. In one well-publicized case in August, authorities in Ningbo rescued more than 70 middle-school students used as laborers at a grape cannery under the guise of a summer work-study program. In general there was little follow-up on whether children involved in such cases continued to work outside the home.

e. Acceptable Conditions of Work

There was no national minimum wage. The labor law requires local governments to set their own minimum wage according to standards promulgated by the Ministry of Labor and Social Security. These standards include the minimum cost of living for workers and their families, levels of economic development and employment in the area, as well as the level of social insurance and other benefits contributions paid by the employees themselves. The regulation states that labor and social security bureaus at or above the county level are responsible for enforcement of the law. It provides that where the ACFTU finds an employer in violation of the regulation, it shall have the power to demand that the department of labor and social security deal with the case, although it was not clear how that provision was implemented in practice.

In March the NPC issued a report on the implementation of the labor law, based on an intensive 2005 survey of labor conditions. The report stated that that the minimum wage system was not fully implemented, that there was no regular mechanism for increasing wages in many places, and that wage arrears continued to occur. However in many locations a shortage of unskilled labor continued to push wages up, causing several major cities in Guangdong province to increase the minimum wage by 17 to 42 percent during the year.

Wage arrearages to employees of state-owned and private enterprises remained common, especially among migrant workers. According to a government report published in April, 35 percent of rural migrant workers reported having difficulty obtaining wages on time, while nearly 16 percent had trouble obtaining wages. Some migrant workers received wages once a year, when settling with employers prior to returning to their home districts for the lunar New Year. The government continued its campaign to recover payment of missing wages and insurance contributions, and some localities took action to remedy wage arrears, with varying degrees of success. Some provinces promulgated regulations requiring companies to establish wage guaranty funds, in which employers are required to deposit a percentage of project costs into government-controlled accounts for use to pay back wage claims to workers. In February the Shenzhen city Labor and Social Security Bureau sanctioned 1,300 companies and imposed $5.8 million (47 million RMB) in fines for not paying wages. In June Guangdong authorities blacklisted 30 construction companies for failure to pay wages, making them ineligible for city-funded projects. In August the SPC issued a judicial interpretation allowing unpaid workers holding vouchers from their employers to take their cases directly to court, without first going through the lengthy process of labor mediation and arbitration. Legal aid lawyers reported that this judicial decision has been very effective in reducing the time it takes to resolve wage arrears cases.

Other widespread, illegal practices effectively reduced workers' wages. These included arbitrary fines and wage deductions levied by employers for such breaches of company rules as talking to fellow employees, talking back to supervisors, or standing or sitting improperly on the job. Many employers used an "extended shift" system, in which the employer sets an unrealistic production target that workers cannot achieve within designated work hours. Workers must then work overtime without additional compensation to meet the target, sometimes resulting in actual hourly wages that are below the legal minimum wage.

The NPC report also found that excessive overtime was common. The labor law mandates a 40-hour standard workweek, excluding overtime, and a 24-hour weekly rest period. It also prohibits overtime work in excess of three hours per day or 36 hours per month and mandates a required percentage of additional pay for overtime work. However, these standards were regularly violated, particularly in the private sector and in enterprises that use low-skilled migrant or seasonal labor. A survey conducted by a human resources firm found that 80 percent of respondents worked overtime often, while only 30 percent were paid premium wages for overtime. Many areas of the country experienced shortages of migrant and skilled workers during the year, in part due to worker dissatisfaction with low wages and poor working conditions. Social auditors found that factories routinely falsified overtime and payroll records. In August a Shenzhen court accepted a libel complaint from an employer against two journalists who had reported on illegal overtime conditions in a factory, although the employer subsequently dropped the case.

The NPC report found that working conditions in locations it surveyed were substandard. The State Administration for Work Safety (SAWS) also acknowledged that occupational health and safety concerns remained serious. SAWS, which was elevated to ministry status in 2005, continued to develop the national framework for work safety. The Ministry of Health was responsible for the prevention and treatment of occupational illness, while SAWS was responsible for workplace health supervision. In June the law was amended to provide for criminal sanctions against individuals responsible for industrial accidents. In August SAWS announced a five-year, $58 billion (467.4 billion RMB) plan to invest in safety projects, including coal mine accident prevention, in an effort to reduce the industrial accident rate.

While inadequate and poorly enforced occupational health and safety laws and regulations continued to put workers' health and lives at risk, there was a decline in reported accidents and fatalities compare to the previous year. During the year official statistics reported that industrial accidents killed 14,382 workers, a decrease of 9.4 percent from the previous year. There were 95 incidents involving more than 10 fatalities (a total of 1,570 fatalities), 49 percent fewer incidents than in 2005.

The coal industry continued to suffer the largest number of accidents and fatalities as soaring demand and increasing prices drove companies to increase production of coal. During the year the number of deaths in coal mine accidents fell to 4,746, a decline of 20 percent from 2005. The government took other steps throughout the year to improve mine safety. However, allegations of local government complicity in the cover-up of mining disasters continued.

The central government announced plans to close 2,652 unsafe small coal mines during the year, but extended the deadline to the first half of 2007 following resistance from local governments. Throughout the year, central and provincial authorities punished a number of mine managers and local government officials for their involvement in coal mine accidents.

Many factories that used harmful materials or processes not only failed to protect their workers against the ill effects of such materials or processes but failed to inform them about the hazards, neglected to provide them with health inspections as required by law, and when they fell ill, denied their claims for compensation. The Ministry of Health said that pneumonoconiosis, a chronic respiratory disease caused by inhaling metallic or mineral particles, remained the single most prevalent occupational disease in China. The official number of pneumonoconiosis cases was 440,000, although some observers reported that it may have affected as many as five million workers, including coal miners and jewelry workers. In February SAWS ordered the closing of 35,842 companies due to safety concerns.

The government reported that 102 million workers participated in the country's work-injury insurance system, an increase of 17 percent over the previous year. However, NGOs reported that local labor and social security bureaus frequently rejected claims for compensation by workers because employers failed to provide them with documentation as required by law. Workers showed a willingness to use lawsuits to pursue injury and illness claims against employers, but there were few sources of legal aid available.

The work safety law states that employees have the right, after spotting an emergency situation that threatens their personal safety, to evacuate the workplace. Employers are forbidden to cancel the labor contracts or reduce the wages or benefits of any employee who takes such action. In practice such protective provisions were difficult to enforce. There were reports of serious accidents in which miners were killed when mine managers forced them to continue work under unsafe conditions.

The NPC report stated that infringement of workers' rights was widespread in 2005, and this situation continued during the year. In addition to citing poor labor law enforcement, the NPC noted that labor contracts are seldom executed, and when they were, that contract terms were too short and not in compliance with the law. NPC inspection results in 2005 showed that only 20 percent of employees signed labor contracts in small- and medium-sized nonpublic enterprises. This situation continued during the year. The lack of written labor contracts made it much more difficult for workers whose rights had been violated to seek redress through administrative processes or through the courts. The widespread use of labor contracting agencies to supply manpower also created legal gray areas that made labor law enforcement more difficult.

 

Tibet

Hong Kong

Macau

Preface

Introduction