Disclaimer: Please note that the views expressed below represent the opinions of the article’s author. The following work does not necessarily represent the views of the Synergy: Journal of Contemporary Asian Studies.
Introduction
Chinese workers have been key to China’s contemporary stature as an economic powerhouse. Their contributions have been essential to bolstering China’s export capabilities and growing its economy. However, dissatisfaction has also been growing among workers, especially those who migrate for their jobs. When China enacted a sweeping set of labour laws in 2008 that aimed to pacify and enfranchise hundreds of millions of workers through labour rights, people were hopeful. Indeed, the tribunal set up to adjudicate workers’ grievances had a huge surge in applicants when it was first implemented, reflecting workers’ enthusiasm as they vied to go through newly-established legal channels for redress on issues such as compensation below the legal minimum wage, employers’ lack of contributions to social security benefits, and failure to compensate for workplace injuries.[1]
Meanwhile, there has been a simultaneous outpour of interest and academic research on the newly established legal framework on worker’s rights in China. Ever-increasing competition for outsourcing and a looming “trade war” with the United States justify a timely reflection upon the new labour laws in China’s authoritarian context. Are these laws effective channels for resolving labour-based grievances? Are there conditions to successful litigation?
After introducing the promulgation of the 2008 Chinese Labour Laws and what they signify for the nation, this paper conducts a review of the present literature that identifies, analyzes, and critiques the key factors that arguably deter and facilitate legal mobilization in China. This paper moderates a discussion of these analyses with a critical exploration of the literature. Some academics argue that the newly established legal system is ineffective, while others argue that, due to intentional legalistic constraints, the new labour laws are empty rhetoric aimed at advancing China’s political and economic goals. Still others argue that extralegal means are the only effective way to truly acquire these newly established rights.
Through this analysis, this paper finds that legal mobilization is significantly deterred by the structure of China’s labour laws. This essay focuses on scholarly analysis of the ingenious mechanisms established by the Chinese state to prevent labour insurgence and the ramifications of these structural inhibitions. As a consequence of these limitations, this paper concludes that based on recent scholarship, legal mobilization in China is most effectively facilitated by extra-legal means, including through threats or execution of collective action such as strikes or demonstrations, with individual successes also occasionally garnered through threats or disturbances to social order.
Defining Legal Mobilization
In framing the effectiveness of legal channels in China, this paper uses the concept of legal mobilization. Charles Epp discusses the importance of support networks to accessing the law, through mediums such as rights-advocacy organizations, lawyers, and financing.[2] Mary Gallagher briefly defines legal mobilization in her book Authoritarian Legality at Work as “the act of engaging with the legal system to solve a problem.”[3] Sally Merry’s concept of “rights consciousness” is also salient, defined as the individual’s ability to understand and conceptualize their grievances in terms of infringements upon their rights.[4] All of these approaches to understanding legal mobilization are applicable in China, and will be used in this essay in different contexts and capacities.
Comparing Legal Mobilization Across Authoritarian Regimes
Valuable research analyzing legal mobilization in authoritarian contexts similar to China has also been conducted. When examining legal mobilization of gay rights in Singapore, Chua discovers that activists continuously and strategically adapt to the political consequences of their actions, switching between toeing the line to avoid “open warfare” with the state and pushing boundaries to advance their movement.[5] Chua identifies an important ramification of this approach – by dancing between legality and illegality in gay rights activism, activists affirm the jurisdiction, authority, and centrality of the state.
In Myanmar, where human rights lack cultural resonance and collective mobilization is restricted by the government, Sexual Orientation and Gender Identity (SOGI) activists have also used the idea of human rights to advance their movement. More specifically, SOGI activists have vernacularized human rights law, acting as “translators” by describing the ideas and concepts of human rights to individuals by way of persuasion and recruitment. By hosting workshops and reframing grievances in the language of human rights, SOGI activists fostered a community of advocates that actively work towards creating a grassroots cultural movement to eliminate SOGI-related stigma, with hopes of liberalizing the outlook of Myanmar’s conservative laws.
In Singapore and Myanmar, Chua identifies successful tactics that activists have used to apply the law to their problems under repressive contexts. In Singapore, activists occasionally skirt the law and find extralegal means to achieve their goals, but never directly confronting the government. in Myanmar, activists use international law to legitimize their grievances.
Framework: 2008 Labour Laws
While labour laws have historically been seen as unenforced and largely ineffective in China since their introduction in 1949, public debate in 2006-07 leading up to the promulgation of the Labour Contract Laws in early 2008 suggested that this law would be different.[6] Indeed, when the 2008 Labour Contract Law was implemented on January 1, 2008, it was widely regarded as the most significant new labour law in the country in over a decade.[7] Significant rights given to workers included:
“[M]andatory labour contracts for new employees for all employment relations; strengthening worker representatives and workplace-based trade unions’ roles in representing their workers’ interests; worker entitlement to severance pay upon the expiration or termination of contracts under certain conditions; the regulation of contingent labour; and the imposition of disciplinary measures on officials who neglect their responsibilities or abuse their authority.”[8]
A second and third law were implemented in the same year, respectively improving workers’ access to arbitration and encouraging equal employment opportunity. Alongside these newly established legal regulations, Chinese policymakers also created a dispute mechanism for individuals to pursue if their employers failed to abide by the new codes. Reflecting the surge in engagement upon implementation of this new legal channel, Wang, Applebaum, Degiuli and Lichtenstin note: “The labour courts in Dongguan, Shenzhen and Guangzhou accepted more than 10,000 cases during the first quarter of 2008 alone, double the number over the same period in the year before.”[9] Meanwhile, Chinese employers were already finding ways to evade the new laws through measures such as forcing individuals to resign and sign new contracts before they reached the consecutive 10-year employment mark, which is the threshold guaranteeing that employment security under the new laws.[10]
Disillusion: Mobilization through Legal Channels
Gallagher notes that the Chinese state puts genuine effort into ensuring individuals were cognizant of the new laws, in line with her aforementioned definition of legal mobilization. The processes of implementation and dissemination of information thus significantly altered and expanded workers’ rights consciousness. However, in Authoritarian Legality at Work, Gallagher asks why an authoritarian government would make stringent labour standards. Gallagher notes that China’s newly established labour standards were among the highest in the world, making them accessible to disenfranchised individuals did not seem politically necessary given China’s one-party composition.
Gallagher posits that the Chinese government deliberately chose its methods of enforcement and compliance to serve its own political and economic interests. The dispute resolution mechanism facilitates bottom-up rights mobilization. However, it is structured such that only individuals, as opposed to groups, are able to navigate its channels in hopes of resolving their disputes, thus undermining efforts for collective action by deeming practices such as strikes illegal.[11] The individuating legal mobilization mechanism acts as a double-edged sword. While workers now have access to a forum through which they are able to resolve labour-related grievances, the system fragments and individuates complaints, stripping workers of the leverage that collective action imbues upon them. In addition, because the system is individualized, there is less compliance among employers than if the codes were monitored by a top-down approach.[12]
Those with an understanding of labour rights advocacy in Western democracies might point to trade unions as a first line of defense and assistance when it comes to the labour adjudication process or arbitration. However, in China, independent trade unions are illegal. Instead, the Chinese government designates one body, the All-China Federation Trade Union (ACFTU), to assist workers with labour disputes. The ACFTU is widely regarded as an ineffective advocate for workers, to the extent that some scholars even view the organization as an impediment to advancing workers’ rights.[13] The most prominent reason for this assessment is the ACTFU’s functions as an arm of the state. Its proximity to state institutions has led many academics to argue and note from employee testimonies that this “union” tends to prioritize political and economic interests over worker’s rights.[14] Gallagher dubs the ACFTU a “junior partner of the government in resolving labour disputes.”[15] Ness further notes that some scholars consider the ACFTU a façade to maintain the appearance of workers’ rights, placate foreign critics and appease foreign investors.[16]
Gallagher concludes that many individuals go through the legal system, only to experience a lack of success and to become disillusioned with their newfound rights due to the weak legal infrastructure and employer favoritism. Gallagher’s critique effectively makes her point, and is well-supported by her ethnographic field research and testimonies.
Extra-Legal Mobilization
The ACFTU’s monopoly on legal representation and its ineffectiveness have led individuals to seek extra-legal or non-state-affiliated means of mobilizing for their rights. However, these resources are not always seen favourably, some even deemed illegal in China. These methods and resources include legal mobilization with the help of non-governmental organizations, micro-collective action, and atomized collective mobilization.
Xu argues that legal labour non-governmental organizations have emerged as an effective way to mobilize and advocate for workers. Based on the data she accumulates, she finds that labour NGOs in China are primarily focused on providing legal mobilization services and assisting citizens in their pursuit of legal channels to resolve their disputes, sometimes also serving as recreational or cultural centres for workers. She argues that “NGOs are…facilitators or disseminators of rights-based knowledge, consciousness, and techniques.”[17] This entails delivering lectures on labour laws, disseminating leaflets and pamphlets, providing one-on-one consultation for legal issues via hotlines, and visiting injured workers in hospitals to provide legal assistance.[18] One of Xu’s interviewees states that “[the NGO] helped me to prepare documents for applying the Work Injury Certification, and they took me to the court, to the arbitration committee, and negotiated with my boss. Finally, I got my compensation.”[19]
A drawback from Yi’s essay is that she examines only documented NGOs. Indeed, she estimates that there are about 30-50 official labour NGOs in China, a figure that omits a vast network of extra-legal labour advocacy groups. Documented NGOs have permission to operate in China, but must refrain from challenging the party-state. Therefore, they are limited in their ability to partake in illicit activities such as organizing strikes. However, government sanction of official labour NGOs ensures the organizational continuity of such groups, which is not a given for their undocumented counterparts.
Filling the gap between legal and illegal NGOs, Diana Fu aims to discover what happens when workers who are forbidden from publicly mobilizing find extra-legal ways to advocate for their rights. She argues that, in this repressive environment, workers find ways to mobilize and discreetly disobey the Chinese Communist Party (CCP), grouping these actions into micro-collective atomized action.
Fu articulates an example of micro-collective action where hundreds of workers across twenty different factories filed a joint lawsuit against employers that had blacklisted them. A dozen or so of these litigants staged a small-scale protest outside a labour bureau to draw attention to their case by briefly holding up signage protesting blacklisting, then quickly dispersing before being detained. The labour insurgency was led by a grassroots labour organization called Solidarity in Action (SA), an illicit NGO and labour organization based in Hong Kong. In comparison, SA is more radical than the officially-sanctioned “NGOs” articulated by Yi. SA not only encourages rights consciousness and advocacy, it also provides leadership and support for illicit forms of collective action such as striking and collective protests, while acting as a base for migrant worker mobilization.
To pre-emptively defending against the vulnerabilities associated with collective action, illicit NGO organizers and participants use atomized action as another effective tool for legal mobilization, argues Fu. Through atomized action, labour organizations are able to coach individuals to mobilize individually through “passive networks,” or through “tacit understandings of commonality between atomized individuals.”[20] In other words, instead of forming organizations to facilitate collective action, “citizens coordinate to better contend as individuals.”[21]
For example, an illicit NGO coached an individual to go to a labour bureau and make a disturbance while threatening suicide if her legal case did not progress. This had the effect of not only disturbing the social order, but also drawing attention to the state’s failure to effectively resolve workers’ grievances.[22] The workers that Fu interviewed claim that such disruptive tools are more effective in acquiring worker’s rights than alternative efforts within the legal system.[23] Fu believes that the cumulative effect of these actions could catalyze social change. Coercive action also has the effect of helping preserve the survival of illicit NGOs, as there is no institution or leader to identify in blaming.
However, these concessions are framed by Fu as one-offs. Indeed, the author notes that separate funds have pre-emptively been earmarked by local governments specifically to suppress workers who revolt.[24] Instead of attaining their rights as promised under the new law, workers enter a “rights bargaining” by exchanging peace-disrupting action for minor concessions. In doing so, Fu notes that workers only play into the authority of the state and augments the state’s repression of any larger collective labour rights movement that might structurally address workers’ grievances.[25]
Deterring Factors of Legal Mobilization
Several authors aim to identify factors that deter legal mobilization in China by examining relevant laws in a more macro-oriented approach. Fu attempts to explain why a broad-based collective movement has yet to arise in China based on her ethnographic research of legal consciousness. Building off Gallagher’s previous research, Fu notes that even if individuals are equipped with collective legal consciousness, the political system that structures labour laws constrains workers by dividing them and individuating their grievances.[26] An alternative political tool is the monopoly on labour dispute representation through the ACFTU, which illegitimates and discourages effective non-government action.[27]
Sio-Ieng Hui takes a more cynical stance on the construction of Chinese labour laws in the context of their inefficacy by arguing that the labour law system is not a way to enfranchise workers. Instead, labour laws are a means for the Chinese government to attain tacit approval of the Chinese proletariat amidst China’s capitalist-market transition. Taking a historical approach, she notes that China’s evolution from a socialist country to an explosive capitalist market led to the exploitation of hundreds of millions of workers. She perceives labour laws as a method of pacifying these individuals while enabling the continuation of the government’s market transition. Hui argues that it would have been politically hazardous for the government to continue ruling by coercion, and giving workers a channel through which they may channel their grievances is a small concession that prevents the potential for a larger revolt, one might undermine the CCP’s authority. However, this channel only needs to be effective insofar as pacifying workers and suppressing any larger labour movement.
A caveat to Sio-Ieng Hui’s paper is its narrow focus. Her argument seems to accumulate evidence without taking a wider lens to consider or incorporate the benefits of codified labour rights. Hui also omits evidence outside of empirical observation that would corroborate her suppositions that labour laws are skewed towards capitalist-labour interests, such as primary documents from leaders insinuating that this is the case.
Conclusion
Research on legal mobilization implies that efforts towards legal mobilization have been hampered by the promulgation of China’s 2008 Labour Laws. Several theorists have posited various reasons for China’s repressive structure, including the prioritization of China’s economic interests to favour employers over employees in capitalist production, in addition to favouring political interests that repress collective action, which may threaten the CCP’s political hegemony. Disillusionment with legal mechanisms and the lackluster role of legal advocacy networks such as the ACFTU have come significantly short of guaranteeing the rights articulated in the 2008 Labour Laws.
In the face of a repressive state, workers still seek to leverage their legal rights by identifying extra-legal techniques to resolve their grievances. Based on the literature review presented by this paper, the most effective of these disputes have sought to threaten social stability through micro-collective or atomized action. By threatening to undermine the government’s authority while nonetheless toeing the line, activists were able to garner small concessions in lieu of a larger movement that activists know would lead to complete repression, echoing Chua’s observations of Singapore. Moreover, labour NGOs play a significant role in vernacularizing rights and enfranchising workers with rights consciousness. In fact, one can draw comparisons between Chinese legal mobilization and Chua’s observations of SOGI activists in Myanmar. Gallagher and Chen note how workers gained a “rights consciousness” through labour NGOs, which helped them advocate for their rights, echoing the efforts of SOGI activists in Myanmar. Fu posits that local agents switch between repressing and permitting labour activism as a means of pacifying workers while stopping short of collective, organized action; flipping the Singapore example on its head while applying the same concept.
The similarities evident between China, Singapore, and Myanmar suggest that there may be overarching patterns of legal mobilization in authoritarian contexts. Meanwhile, it remains uncertain whether workers will continue to find creative ways to attain their rights. In doing so, they must straddle the boundary between threats of imprisonment and legal ineffectuality, and incorporate an evaluation of the severity of their specific conditions when considering which approach to choose. A next step for further study could consist of efforts to better understand the cultures of repression authoritarian states create, which may bolster sociological approaches to the extra-legal means individuals have employed to attain “rights.”
Tracy Wang is Political Science Specialist at Trinity College, University of Toronto.
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[1] Paul Bowles and John Harriss, Globalization and Labour in China and India: Impacts and Responses, (Palgrave Macmillan, 2014), 92.
[2] Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (W. Ross MacDonald School Resource Services Library, 2008).
[3] Mary Elizabeth Gallagher, Authoritarian Legality in China: Law, Workers and the State, (United Kingdom: Cambridge University Press, 2017), 179.
[4] Merry, Sally Engle. “Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence.” Human Rights Quarterly25, no. 2 (2003): 343-81.
[5] Lynette J. Chua, “Programatic Resistance, Law, and Social Movements in Authoritarian States: The Case of Gay Collective Action in Singapore,” Law & Society Review, (2012), 722.
[6] Bowles and Harriss, Globalization and Labour in China and India, 84.
[7] Ibid., 57.
[8] Ibid.
[9] Ibid, 92.
[10] Ibid, 94.
[11] Gallagher, Authoritarian Legality in China, 5.
[12] Ibid., 13.
[13] Immanuel Ness, Southern Insurgency: The Coming of the Global Working Class, (London: Pluto, 2016), 244.
[14] Yi Xu, “Labour Non-govenrmental Organizations in China: Mobilizing Rural Migrant Workers,” Journal of Industrial Relations, (2013), 244.
[15] Gallagher, Authoritarian Legality in China, 5.
[16] Ness, Southern Insurgency, 129.
[17] Xu, “Labour Non-govenrmental Organizations in China,” 248.
[18] Ibid.
[19] Ibid.
[20] Diana Fu, “Disguise Collective Action in China, (2016), 503.
[21] Fu, “Disguised Collective Action in China”, 505.
[22] Ibid., 511.
[23] Ibid.,
[24] Ibid.,
[25] Diana Fu, Mobilizing without the Masses: Control and Contention in China, (Cambridge University Press, 2018), 142.
[26] Ibid.
[27] Fu, “Disguise Collective Action in China, 505.
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