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Defusion of labor disputes in China: collective negotiations, mediation, arbitration, and the courts

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Abstract

This paper addresses the uses of the arbitration and judicial processes in the resolution of individual and collective labor rights arising under contract or statute. These labor rights are in contrast to labor interests of yet-unsecured rights, such as wage increases. An interesting phenomenon occurred wherein the rapid rise in the arbitration cases following the 2008 Mediation and Arbitration Law has slowed whereas the number of court cases rose and then leveled off, though continuing at that higher level. Analysis is made whether this increase from administrative relief to judicial relief was a temporary aberration and whether judicial appeals may undermine the arbitration process. Also addressed is whether existing legislation would be improved by letting arbitration be the final remedy, absent illegalities. This paper first provides a larger context of “labor disputes” and how they “diffuse” in different ways, some illegal and more volatile than others, including, strikes (plant sit-ins), collective bargaining, etc. Secondly, the devices of mediation and arbitration are briefly introduced as methods of regulating and “defusing” labor rights disputes. The next section explores the actual uses of arbitration and the courts in the resolution of labor disputes and notes the continued use of the courts notwithstanding the high percentage of worker-friendly decisions in mediation and arbitration. Analysis is made whether the government’s new 2010 and 2011 policies of further promoting consultation, mediation, and arbitration of labor disputes will have an effect on requests for judicial review which fluctuated upwardly since 2008 or whether the policies need further adjustment to accord more finality to arbitration decisions.

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Notes

  1. See Brown 2010. In 2010, as China's labor dispute cases tripled from 407,000 in 2005 to 1.287 million, it was reported that the country needs more arbitration centers to protect employees' legitimate rights. Labor disputes involving more than one worker are increasing, and according to the MOHRSS, in cities like Shenzhen, an arbitrator has to solve 150 cases each year on average. More arbitrators needed as labor disputes soar (China Daily 9 June 2011) http://www.chinadaily.com.cn/china/2011-06/09/content_12662445.htm. Accessed 10 February 2014; see also Brown (2006).

  2. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007. In 2011, new government provisions were issued to identify and head off labor disputes before they grew too volatile. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011.

  3. Zhu 2012. Democratization of the labor relationship, particularly those of union leadership, has experienced slow growth over the past several years. Id.

  4. Barboza and Tabuchi, 8 June 2010, http://www.nytimes.com/2010/06/09/business/global/09labor.html?pagewanted=print. Accessed 5 February 2014.

  5. China Labour Bulletin Unity is Strength. The Workers’ Movement in China 2009–2011 (October 2011) http://www.clb.org.hk/en/files/share/File/research_reports/unity_is_strength_web.pdf. Accessed 11 February 2014. The report states that while public statistics related to labor strikes are not available, indicators suggest that strikes have increased in number, taking into account a greater number of migrant workers with higher expectations for success, coupled with continuing discontent from those laid-off from state-owned enterprises through the restructuring and privatization that took place in the 1990s. Id.

  6. Elstrom, 2014, https://chinastrikes.crowdmap.com/main. Accessed 20 August 2013. It maps out labor strikes in China on Google Maps and categorizes them by industry, type of ownership, and the number of workers involved (Right click on left margined cases for translation in English); see also Chou, 7 February 2011, http://www.theatlantic.com/international/archive/2011/02/crowdsourcing-china-labor-strikes/70883/. Accessed 6 February 2014. (“It's not a surprise, for instance, to see a concentration of strikes in Guangzhou, where the export manufacturing industry (along with that in other coastal provinces but with less density) was hard hit in the financial crisis…”). According to Elstrom, there were 34 verified and 16 unverified “strike reports” in 2010, 70 and 29, respectively, in 2011, and 13 verified as of January 23, 2012. Id.

  7. Ni, 29 November 2011, http://www.china-briefing.com/news/2011/11/29/watch-out-for-china%E2%80%99s-flaring-labor-unrest.html#more-14849. Accessed 10 February 2014.

  8. See, e.g., Barriaux, 26 November 2011, http://www.google.com/hostednews/afp/article/ALeqM5i4vmMCE24edrGtWfVJhdG3xjMxqg?docId=CNG.a90c71093abddbeb3704e4d5c37746e4.4f1&hl=en. Accessed 5 February 2014; Branigan, 30 November 2011, http://www.theguardian.com/world/2011/nov/30/striking-chinese-blockage-tesco-store. Accessed 12 February 2014; China Labour Bulletin Strike action shows the broad range of worker dissatisfaction across China (5 December 2011) http://www.clb.org.hk/en/node/101187. Accessed 12 February 2014; FlorCruz, 25 November 2011, http://www.cnn.com/2011/11/24/world/asia/china-labor-woes/. Accessed 6 February 2014; Kurtenbach, 2 December 2011, http://www.huffingtonpost.com/2011/12/02/china-labor-unrest_n_1125213.html. Accessed 6 February 2014; Chan, 2 December 2011, http://bmobile.reuters.com/article/technologySector/idUSL4E7N21NE20111202. Accessed 6 February 2014; Pomfret and Chan, 8 December 2011, http://www.reuters.com/article/2011/12/09/us-china-labour-idUSTRE7B808220111209?feedType=RSS&feedName=worldNews&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed. Accessed 6 February 2014; Watson, 11 January 2012, http://www.chinalaborwatch.org/news/new-410.html. Accessed 5 February 2014; Lin, 6 January 2012, http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20120106000079&cid=1103. Accessed 10 February 2014.

  9. Brown, 15 June 2011, http://intemploy.blogspot.com/2011/06/china-some-trends-in-collective.html. Accessed 5 February 2014; see also Barboza and Tabuchi, 8 June 2010, http://www.nytimes.com/2010/06/09/business/global/09labor.html?pagewanted=print. Accessed 5 February 2014.

  10. 中华人民共和国安全生产法 (Work Safety Law) 29 June 2002. The trade union may call for a strike pursuant to the Trade Union Law where certain unsafe working conditions may exist. Article 24 provides: “[W]hen the trade union finds that the enterprise gives a command contrary to the established rules and compels workers to operate under unsafe conditions, or when major hidden dangers and occupational hazards are found in the course of production, the trade union shall have the right to put forward proposals for a solution, and the enterprise shall, without delay, consider the proposals and give a reply to the trade union. Where the very lives of the workers and staff members are found to be in danger, the trade union shall have the right to make a proposal to the enterprise that a withdrawal of the workers and staff members from the dangerous site be organized, and the enterprise shall make a decision promptly.” 中华人民共和国工会法 (Trade Union Law) 27 October 2001 (English translation available at http://english.gov.cn/laws/2005-10/11/content_75948.htm. Accessed 13 February 2014, and also, http://www.china.org.cn/english/DAT/214784.htm. Accessed 13 February 2014); Kai, 2003, http://www.airroc.org.tw/ISLSSL2005/program/doc/II-3.doc. Accessed 19 August 2013.

  11. National Bureau of Statistics of China (China Statistical Yearbook 2010) Table 22–5. Grievances listed by China Strikes show the majority of demands focus on wages and layoffs with some focus on competition, restructuring, and hours; see also Elstrom, supra note 6; also Wikipedia 2010 Chinese labor unrest http://en.wikipedia.org/wiki/2010_Chinese_labour_unrest. Accessed 9 February 2012 (includes a table of recent labour incidents mainly focused on wage demands); and Tran, 25 June 2010, http://www.msnbc.msn.com/id/37932967/ns/world_news-asia_pacific/t/china-takes-hands-off-approach-labor-strikes/#.TzREFE9ir_h. Accessed 11 February 2014 (“In the recent string of strikes, workers are seeking not simply higher wages, but salaries more in line with what their overseas counterparts are paid, said Lee. They also demand more vocational training and reforms so that their salary and status can rise the more years they work”). “Relieving the contract” has been explained as a party unilaterally ending the contract; see 论文网 (Essay Net) 劳动合同单方解除问题研究 (Research on Relieving the Labor Contract by Unilateral Decision) (10 October 2007) http://www.lw23.com/lunwen_562883287/. Accessed 10 February 2014.

  12. Nham 2007; and China Labor News Translations Should China Create a Law on Strike? (20 July 2011) http://www.clntranslations.org/article/62/strike+law. Accessed 10 February 2014; see discussion in Gernigon et al., 2000, http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_087987.pdf. Accessed 13 August 2013.

  13. Brown 2006, pp. 41–77. Another newly-emphasized government –sponsored intra-enterprise organ seeking to give workers a greater voice is the Employee Representative Congress (ERC), recognizable in the past as akin to the Workers’ Congress, which among its duties includes the right to discuss and pass resolutions on matters related to the interests of employees, such as collective contracts concerning wages, working hours, rest hours and leave, and social security insurance and benefits. “On May 1, 2011, the Shanghai Regulations on the Employee Representative Congress … came into force. This is the first local legislation regarding establishment of ERCs and it provides that enterprises employing 100 employees or more are required to establish ERCs.” See also Roberts, 4 August 2010, http://www.bloomberg.com/news/2010-08-04/workers-in-guangdong-may-get-legal-sanction-to-strike-under-proposed-law.html. Accessed 6 February 2014.

  14. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011.

  15. Clarke et al. 2004, p. 250.

  16. Brown, 15 June 2011, http://intemploy.blogspot.com/2011/06/china-some-trends-in-collective.html. Accessed 5 February 2014. For a less optimistic observation on the operations of the unions, see Statement of CECC Chairman Sherrod Brown and Cochairman Christopher Smith on the Release of the 2013 Annual Report (Congressional-Executive Commission on China 10 October 2013) http://www.cecc.gov/media-center/press-releases/statement-of-cecc-chairman-sherrod-brown-and-cochairman-christopher. Accessed 11 February 2014.

  17. The ACFTU’s work plan for 2011 says the coverage of collective salary negotiation systems among enterprises with trade unions should reach sixty percent by the end of the year and should come to eighty percent by the end of 2013. Li, 20 March 2011, http://politicalaffairs.net/china-s-labor-movement-a-bigger-role-to-play/. Accessed 6 February 2014. At present, ACFTU is actively pushing the state departments concerned to rush the formulation of Wage Regulations. In addition, this year ACFTU plans to invest 10 million Yuan to make trial employment of full-time trade union workers to start collective wage bargaining in 10 provinces and cities. ACFTU demands that bargaining over the overtime pay, bonus distribution, welfare allowance and wage system should be brought under the collective bargaining system in the days to come. ACFTU Issue No. 7/2010 (31 July 2010) http://www.acftu.org.cn/template/10002/file.jsp?cid=28&aid=548. Accessed 11 February 2014; ACFTU ACFTU presses ahead with Collective Wage Bargaining (31 July 2010) http://english.acftu.org/template/10002/file.jsp?cid=23&aid=562. Accessed 5 February 2014 (“According to the union, a special committee consisting of about 60,000 members was put together by the ACFTU to negotiate the wage issues between enterprises and employees across the country”); Chen, 29 July 2010, http://english.peopledaily.com.cn/90001/90782/90872/7086081.html. Accessed 11 February 2014. [T]he All China Federation of Trade Unions has launched a “national trade union collective bargaining instructor training program for implementation of the plan.” Zhang Jianguo said, the ACFTU plans to use the 3year period to train 150,000 instructors from stratified groups within the trade unions at all levels to carry out the work of collective wage negotiations for the trade unions. Id. Dae, 29 May 2011, http://eaststillred.blogspot.com/2011/05/news-about-moaist-left-in-china.html. Accessed 10 February 2014; see also China Daily Unions push for collective wage move (English People's Daily Online 2011) http://english.peopledaily.com.cn/90001/90778/90862/7249154.html. Accessed 11 February 2014.

  18. 北京市人力资源和社会保障局 (Beijing Municipal Bureau of Human Resources and Social Security) 关于2012年推进工资集体协商签订集体合同工作的意见 (Regarding Opinions on the 2012 Promotion of Work on Collective Wage Negotiations and the Signing of Collective Contracts) (14 May 2012) http://www.bjld.gov.cn/LDJAPP/search/fgdetail.jsp?no=13569. Accessed 11 February 2014.

  19. 2012年度人力资源和社会保障事业开展统计公报 (2012 Annual Human Resources and Social Security Enterprise Development Statistical Bulletin 28 May 2013) http://www.mohrss.gov.cn/SYrlzyhshbzb/dongtaixinwen/shizhengyaowen/201305/t20130528_103939.htm. Accessed 5 February 2014.

  20. Id. For a claim of higher penetration, see ACFTU Chinese Trade Unions Makes Progress in 2010 (31 January 2011) http://english.acftu.org/template/10002/file.jsp?cid=23&aid=628. Accessed 11 February 2014; see also Yuping and Li, 11 September 2011, http://www.csr-asia.com/weekly_detail.php?id=12514. Accessed 11 February 2014 (“This year alone, more than 15,000 companies in Guangzhou have signed such agreements, and in total more than 60,000 companies have signed off on some form of collective bargaining contract”). Id.

  21. 2012年度人力资源和社会保障事业开展统计公报 (2012 Annual Human Resources and Social Security Enterprise Development Statistical Bulletin 28 May 2013) http://www.mohrss.gov.cn/SYrlzyhshbzb/dongtaixinwen/shizhengyaowen/201305/t20130528_103939.htm. Accessed 5 February 2014. A 2011 report released by the Ministry of Human Resources and Social Security claims that in 2010, sixty percent of the country’s enterprises had in place some form of collective contract. By 2011, the report states that collective contracts were in place at over eighty percent of enterprises nationwide. 中华人民共和国人力资源和社会保障部 (Ministry of Human Resources and Social Security of the People’s Republic of China) 关于深入推进集体合同制度实施彩虹计划的通知 (In Regard to the Thorough Implementation of the Collective Contracting System and the Rainbow Plan Notification) (27 July 2011) http://www.mohrss.gov.cn/ldgxs/LDGXjitihetong/LDGXcaihongjihua/201107/t20110727_86307.htm. Accessed 11 February 2014.

  22. Deng, 11 November 2010, http://law.lexisnexis.com/webcenters/hk/Hong-Kong-Lawyer-/Wage-collective-bargaining-in-China-current-practice-and-future-trends. Accessed 6 February. A review of national and local developments can be found at Lauffs and Isaacs, October 2010, http://www.bakermckenzie.com/RRChinaACFTUPushesForwardOct10/. Accessed 10 February 2014.

  23. The Regulation of Fujian Province on Enterprise Collective Negotiation and Collective Agreement (hereinafter referred to as the “Regulation”) was adopted at the 18th Meeting of the 11th Standing Committee of Fujian People' s Congress on November 29th, 2010, and was effective as of January 1st, 2011. See, Fujian: Three Circumstances to Trigger the Collective Negotiation of Salary (King & Wood 2011) http://www.kingandwood.com/article.aspx?id=Fujian-Three-Circumstances-to-Trigger-the-Collective-Negotiation-of-Salary&language=en. Accessed 6 February 2014.

  24. The Regulation further explicitly sets out three circumstances under which either the enterprise or the employees are entitled to start of the collective negotiation of salary: “(a) the productivity of labor and economic benefit of the enterprise have changed; (b) relatively big changes have occurred continuously to the local urban citizens' consumer price index for a period of time; (c) the salary guideline released by the local government has changed.” Id.

  25. “In serious cases the administrative departments for labor security have the right to include the said employer's bad behavior into the Enterprise Credit System of Labor Security Compliance, and impose a fine of RMB 3,000 to 30,000 on the enterprise, and at the same time may impose a fine of RMB 1,000 to 10,000 on the legal representative or the principal person in charge of the enterprise.” Id.

  26. The Draft Ordinance on Democratic Management of Enterprises of Guangdong Province was enacted by the forty-fourth meeting of the Guangzhou City, the Thirteenth People's Congress Standing Committee, adopted on September 22, 2011; and the Guangzhou City labor relations tripartite consultation requirements, have been approved by Guangdong Province, the 11th People's Congress Standing Committee on November 30, 2011, and are hereby promulgated, effective since January 1, 2012. See text Draft Ordinance on Democratic Management of Enterprises of Guangdong Province 14 December 2011 at http://news.sina.com.cn/o/2011-12-29/063123713580.shtml. Accessed 13 February 2014; see commentary at Guangzhou Government Passed New Law to Institutionalise Collective Negotiation and Mediate Strikes under the Tripartite Mechanism (IHLO November 2011) http://www.ihlo.org/LRC/Laws/001111.html. Accessed 6 February 2014.

  27. 三方协商探路化解劳资矛盾 (Tripartite Negotiation Seeking a Path to Resolve Contradictions in Labor and Capital) 瞭望观察网 (Liao Wang Guan Cha Wang 13 February 2013) http://www.lwgcw.com/NewsShow.aspx?newsId=30568. Accessed 11 February 2014.

  28. 论三方协商机制的“广州模式” (A Discussion on the “Guangzhou Model” of the Tripartite Negotiation System) 中国改革网 (Zhong Guo Gai Ge Wang 28 March 2013) http://www.chinareform.net/html/category46/48/20130328/11920.html. Accessed 11 February 2014.

  29. Id., note 28.

  30. In August 2010, Shenzhen opened up a draft of the long anticipated Shenzhen Special Economic Zone Collective Negotiation Rules and was released to solicit public opinion. See Shenzhen Daily Collective Bargaining for Wages (Shenzhen Government Online 16 August 2010) http://english.sz.gov.cn/ln/201008/t20100816_1559482.htm. Accessed 10 February 2014. “Due to the objections from the trade associations to collective negotiation, the Ordinance was suspended and a third reading of the draft ordinance has not been scheduled.” Id.; see also Procurement of Legal Aid and Collective Negotiation Services from the Commercial Law Firms in Shenzhen and Guangzhou City (IHLO November 2011) http://www.ihlo.org/LRC/SW/001111.html. Accessed 10 February 2014; See text (in Chinese) of the Draft Collective Consultation of Shenzhen Special Economic Zone Ordinance at (法律图书馆 (Law Library) 10 September 2010) http://www.law-lib.com/fzdt/newshtml/20/20100910142616.htm. Accessed 6 February 2014. A description of a successful collective bargaining process is found at China Labour Bulletin Collective Bargaining at the Shenzhen Citizen Watch Factory http://www.clb.org.hk/en/files/share/File/general/Collective_Bargaining_at_Shenzhen.pdf. Accessed 13 August 2013. On November 6th, 2011, with the signatures of 584 people, 10 employee representatives hired the Shenzhen Laowei Law Firm to supply them with legal advice and help with the signing of agreements during their negotiations with the factory's management. The labour and management sides held two rounds of formal negotiation, and on November 19th, both sides signed the memorandum for the negotiation. On November 30th, the employee representatives received the first chunk of compensation for the five years of “40-minute-a-day-overtime.” This marks the first time that collective bargaining between labour and management has been successful…without the intervention of the government. Id; see also Closer to Labour Reform? China's First Successful Collective Bargaining Case (eChinacities.com 14 December 2011) http://www.echinacities.com/china-media/closer-to-labour-reform-china-s-first-successful.html. Accessed 11 February 2014.

  31. Procurement of Legal Aid and Collective Negotiation Services from the Commercial Law Firms in Shenzhen and Guangzhou City (IHLO November 2011) http://www.ihlo.org/LRC/SW/001111.html. Accessed 10 February 2014. “A number of provinces and cities have adopted laws re-affirming workers right to collective bargaining in order to overcome the reluctance or inability of employers to react to wage pressures and worker discontent.” Id.; See Van Heerden, 2011, http://www.hrpolicy.org/downloads/2011/11-18%20THE%20CHINA%20STORY.pdf. Accessed 13 August 2013 (citing Regulations on Collective Bargaining and Collective Contract in Companies of Fujian Province “passed on Nov 29 during a meeting of the Standing Committee of Fujian People’s Congress and to be enforced from Jan 1, 2011, replacing the current Regulations on Enterprise’s Collective Contract of Fujian Province”). Id.

  32. Zeng X 2009, pp. 1–2 (“China has a long history of mediation”); Qian 2010, pp. 53–54, “Confucianism and Taoism-based value system, to which the concepts of relationship and 'harmony and cooperation' are fundamental, are the wellsprings of China's mediation culture.” Id. Pissler in Hopt and Steffek 2012, pp. 960–965.

  33. See Brown, supra note 1, pp. 171–72; see also 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Articles 5–10.

  34. Id. at 171; see also 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Articles 27–30. Brown 2008, http://www.fljs.org/uploads/documents/Brown%231%23.pdf. Accessed 6 Feb 2014

  35. Brown 2006, pp. 41–77.

  36. Brown, supra note 1, p. 180; 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 5.

  37. 中华人民共和国工会法 (Trade Union Law) 27 October 2001, Article 27 (English translation available at http://english.gov.cn/laws/2005-10/11/content_75948.htm. Accessed 13 February 2014, and also http://www.china.org.cn/english/DAT/214784.htm. Accessed 13 February 2014).

  38. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 5; see also, Brown (2008), http://www.fljs.org/uploads/documents/Brown%231%23.pdf. Accessed 6 February 2014. One exception to successful mediation is reported to be in the intra-enterprise mediation process; how the new 2012 Provisions on Enterprise Labor Dispute Consultation and Mediation may affect that, remains to be seen. Id. The parties may also utilize an outside mediation organization.

  39. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011.

  40. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011 Article 7(2).

  41. Id., art. 8.

  42. Id., art. 9.

  43. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011 Articles 11, 12.

  44. Id., art. 15.

  45. Id., art. 20.

  46. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011 Article 30. The parties may also utilize an outside mediation organization.

  47. This replaced some interim measures put into place in 1987, and was the first of its kind in China to propose procedures for the handling of contractual disputes and the eventual termination of permanent State-Owned Enterprise workers, a trend that has continued with further privatization of the manufacturing economy. Zhao (2009), pp. 408, 411–412; see also Cooney et al. (2013 ), pp. 108–142.

  48. 中华人民共和国劳动法 (Labor Law of the People’s Republic of China) 5 July 1994. Some state this is important because it was essentially the first labor law of its kind in China following the end of labor legislation in 1956. Zhao (2009), pp. 408, 410.

  49. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007.

  50. 劳动人事争议仲裁组织规则 (Organizational Rules of Arbitration for Labor and Personnel Disputes) 20 January 2010.

  51. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011.

  52. 劳动人事争议仲裁组织规则 (Organizational Rules of Arbitration for Labor and Personnel Disputes) 20 January 2010.

  53. Id., articles 23 and 32.

  54. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011 chap. 2.

  55. Id., chap. 3.

  56. Id., art. 16.

  57. Id., chapters 2 and 3. Article 4 provides the scope of “labor disputes.”

  58. Id., articles 4 and 12. The composition of the committee is provided in article 15.

  59. Id., art. 27.

  60. Id., articles 28 and 30.

  61. Id., art. 4.

  62. Mandatory Enterprise Labour Dispute Negotiation and Mediation Committees are likely to be Old Wine in New Bottle (ILHO January 2012) http://www.ihlo.org/LRC/W/000112.html. Accessed 10 February 2014; 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011.

  63. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 19(1)–(4); see Conference on Comparative and International Labor and Employment Law 2009 China’s Labor Arbitration Under New Labor Laws, Proceedings, ISLSSL Annual Meeting, Chicago; People’s University Law School 2008, p. 47; also see, Guttman et al. 2013, chap. 14.

  64. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007, Article 20(1)-(4). There are some criticisms that the appointment process has too often utilized inside government officials as arbitrators; see Cooney et al. 2013, p. 109.

  65. 劳动人事争议仲裁组织规则 (Organizational Rules of Arbitration for Labor and Personnel Disputes) 20 January 2010, Article 23.

  66. Id., Article 32.

  67. More arbitrators needed as labor disputes soar (China Daily 9 June 2011) http://www.chinadaily.com.cn/china/2011-06/09/content_12662445.htm. Accessed 10 February 2014. “China's labor dispute cases tripled from 407,000 in 2005 to 1.287 million last year [2010].” Id.; 中华人民共和国劳动争议调解仲裁法 (Labor Dispute Mediation and Arbitration Law) 29 December 2007 (English translation available at http://tradeinservices.mofcom.gov.cn/en/b/2007-12-29/27880.shtml. Accessed 13 February 2014); see Brown, supra note 1, pp. 299–309; and discussion at pp. 168–183. In the past decade, the number of labor grievances brought to arbitration and mediation, have seen a steady increase, with the sharpest increases following the passage of the 2007 Labor Dispute Mediation and Arbitration Law of the People’s Republic of China. Id.; see also 中国劳动网 (China Labour Net) 劳动争议处理统数据 (Labor Dispute Settlement Statistics and Data) http://www.labournet.com.cn/ldzy/ckzl/ckzl2a.asp. Accessed 31 July 2013. According to official statistics, there had been 1,510,210 cases arbitrated and mediated in China in 2012. Id.

  68. Wong, 5 September 2010, http://www.nytimes.com/2010/09/16/world/asia/16china.html?_r=0. Accessed 11 February 2014. It is reported that “[i]n 2009 labor dispute arbitration (emphasis added) organizations. . . nation-wide handled 875,000 cases. Some 684,000 cases were accepted for arbitration, a decrease of 1.3 percent compared to the previous year. The cases involved 1.017 million workers, a decrease of 16.3 percent compared to the previous year.” Id.; Chinese Government’s Official Web Portal China's Human Resources (September 2010) http://www.gov.cn/english/official/2010-09/10/content_1700448_16.htm. Accessed 25 October 2011. The number of labor dispute cases brought to court (emphasis added) had risen from around 295,000 in 2008 to around 317,000 in 2009, about 10.8 percent increase. Wong, 5 September 2010, http://www.nytimes.com/2010/09/16/world/asia/16china.html?_r=0. Accessed 11 February 2014; China Labour Bulletin China's labour dispute court cases increase by over ten percent in 2009 (2010) http://www.clb.org.hk/en/node/100706. Accessed 6 February 2014.

  69. National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23–5 (China Statistical Yearbook CD-ROM, rel. 2013). The number of collective labor disputes (i.e., those with more than 10 workers filing a common claim) appears to be falling. Collective contract labor interest disputes are not arbitrated through the labor arbitration process.

  70. Id.

  71. 中国劳动网 (China Labour Net) 劳动争议处理统数据 (Labor Dispute Settlement Statistics and Data) http://www.labournet.com.cn/ldzy/ckzl/ckzl2a.asp. Accessed 31 July 2013.

  72. National Bureau of Statistics of China, China Statistical Yearbook 2012, Tables 22–5,23–5, 22–29, 23–29, (China Statistical Yearbook CD-ROM, rel. annually).

  73. National Bureau of Statistics of China, China Statistical Yearbook 2007, Table 23–5 (China Statistical Yearbook CD-ROM, rel. 2007).

  74. National Bureau of Statistics of China, China Statistical Yearbook 2008, Table 22–5 (China Statistical Yearbook CD-ROM, rel. 2008).

  75. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007; see also Young and Zhu, 29 January 2008, http://www.amcham-shanghai.org/AmChamPortal/Committees/CommitteeSubCategoryStory.aspx?ID=385&CommitteeID=3&SubCategoryID=399. Accessed 31 July 2013. The 2007 Labor Dispute Mediation and Arbitration Law went into effect May 1, 2008. Id.

  76. 中国劳动网 (China Labour Net) 劳动争议处理统数据 (Labor Dispute Settlement Statistics and Data) http://www.labournet.com.cn/ldzy/ckzl/ckzl2a.asp. Accessed 31 July 2013. It should be noted that “across the country” in reference to these statistics includes thirty-one provinces and autonomous regions of China, the municipalities directly under the control of the central government, and Xinjiang. In addition, statistics cited at this source may refer to labor dispute mediation and arbitration at all levels, including those at the county and township level. Therefore, some discrepancies will be found between this article and those cited in the Statistical Yearbook. Id; see also National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23–5 (China Statistical Yearbook CD-ROM, rel. 2012).

  77. More arbitrators needed as labor disputes soar (China Daily 9 June 2011) http://www.chinadaily.com.cn/china/2011-06/09/content_12662445.htm. Accessed 10 February 2014 (“China's labor dispute cases tripled from 407,000 in 2005 to 1.287 million last year [2010]”); 中华人民共和国劳动争议调解仲裁法 (Labor Dispute Mediation and Arbitration Law) 29 December 2007 (English translation available at http://tradeinservices.mofcom.gov.cn/en/b/2007-12-29/27880.shtml. Accessed 13 February 2014); See Brown, supra note 1, pp. 299–309; and discussion at pp. 168–183; see also China Labour Bulletin Help or Hindrance to Workers. China’s Institutions of Public Redress (Research Reports 2008), http://www.clb.org.hk/en/files/share/File/research_reports/Help_or_Hindrance.pdf. Accessed 13 August 2013.

  78. National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23-5 (China Statistical Yearbook CD-ROM, rel. 2012).

  79. Id.

  80. Id.

  81. National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23-5 (China Statistical Yearbook CD-ROM, rel. 2012). Specifically, 266,506 cases were arbitrated in 2010, compared to 290,971 in 2009. Id. In regard to mediation, in 2010 250,131 cases were mediated, in contrast to 251,463 in 2009. Id. According to some Chinese-language sources, in certain parts of the country the number of disputes handled by mediation committees outnumbered those of arbitration committees by a ratio of two to one. (China Labour Net) 劳动争议处理统数据 (Labor Dispute Settlement Statistics and Data) http://www.labournet.com.cn/ldzy/ckzl/ckzl2a.asp. Accessed 31 July 2013.

  82. (China Labour Net) 劳动争议处理统数据 (Labor Dispute Settlement Statistics and Data) http://www.labournet.com.cn/ldzy/ckzl/ckzl2a.asp. Accessed 31 July 2013. “从主要争议类型看, 劳动报酬, 社会保险, 解除终止合同类争议总计占到受案总数的 80.5 %.” The major categories of cases heard in 2011 included those related to remuneration for labor, social insurance, and the removal or termination of labor contracts, in the amount of 80.5 percent of the total. Id.

  83. (China Labour Net) 劳动争议处理统数据 (Labor Dispute Settlement Statistics and Data) http://www.labournet.com.cn/ldzy/ckzl/ckzl2a.asp. Accessed 31 July 2013. “调解组织调解结案59.4万件, 涉及劳动者80.3万人,涉及金额73.5亿元”.

  84. Id. As of July 31, 2013, 13.2 billion Chinese Yuan was equivalent to more than 2.1 billion U.S. dollars.

  85. Id.

  86. Id. “其中,调解组织受理76.2万件, 仲裁机构立案受理64.2万件.”

  87. China Labour Bulletin China’s labour dispute resolution system (26 November 2009) http://www.clb.org.hk/en/content/chinas-labour-dispute-resolution-system. Accessed 6 February 2014. “The peaceful resolution of labor disputes has now become one of the Chinese government’s top priorities […].” Id.

  88. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 47.

    Limited employer appeals to court are available even under article 47 awards if violations are found under article 49; see text accompanying note 93, below.

  89. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 16. Where the mediation agreement is reached in respect of the payment of labor remunerations, work injury medical expenses, economic compensation or damages in arrears and the employing unit fails to perform the agreement within the time limit prescribed in the agreement, the laborer may apply to the people's court for a payment order in accordance with the law on the strength of the mediation agreement. The people's court shall issue the payment order in accordance with the law. Article 51. The parties shall perform the statement of mediation and statement of award that carry legal effect within the time limit in accordance with provisions. If either party fails to perform within the time limit, the other party may apply for execution to the people's court in accordance with the relevant provisions of the Civil Procedure Law. The people's court that accepts the application shall execute in accordance with the law.

  90. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 43. If no arbitral award is made after the time limit, the parties may initiate litigation in relation to the labor dispute to the people's court.

  91. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 44. In respect of cases for the claim of labor remunerations, work injury medical expenses, economic compensation or damages, the arbitral tribunal may, pursuant to the application of the parties, make an award on advance execution (emphasis added) and transfer to the people's court for execution. Where the arbitral tribunal makes an award on advance execution, the following conditions shall be fulfilled: 1. there is a clear relation of rights and obligations between the parties; and 2. if there is no advance execution, the living of the applicant will be seriously affected. Where a laborer applies for advance execution, no security may be provided. Article 44 allows “advance execution” in labor arbitration cases seeking wage defaults, payment for work injury medical bills, or severance payment and when execution after the arbitration decision would be detrimental to the applicant’s living situation where the obligations are obvious.

  92. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 48. Where a laborer has objection to the arbitral award prescribed in Article 47 hereof, he may initiate litigation to the people's court within 15 days of the receipt of the statement of award.

  93. 中华人民共和国劳动争议调解仲裁法 (Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration) 29 December 2007 Article 49. Where an employing unit has evidence to prove that the arbitral award prescribed in Article 47 hereof is under any of the following circumstances, it may apply for revocation of award to the intermediate people's court at the place where the labor dispute arbitration commission locates within 30 days of the receipt of the statement of award. 1. The applicable laws and regulations are in error; 2. the labor dispute arbitration commission has no jurisdiction; 3. the statutory proceedings are violated; 4. the evidence on which the award is based is forged; 5. the other party has concealed evidence that is sufficient to affect a fair award; 6. the arbitrator accepts bribe, practices graft, and perverts the law.If the people's court composed as collegiate bench has verified that any of the circumstances prescribed in the previous paragraph exists, it shall revoke the award. Where the arbitral award is revoked by the people's court, the parties may initiate litigation to the people's court in relation to such labor dispute within 15 days of the receipt of the statement of award.

  94. National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23–29 (China Statistical Yearbook CD-ROM, rel. 2013). Challenges can arise in comparisons of statistical data arising among tables of cases “arbitrated,” “adjudicated,” “accepted,” and “settled.” The author chose cases in the court of first instance.

  95. National Bureau of Statistics of China, China Statistical Yearbook 2007, Table 23–24 (China Statistical Yearbook CD-ROM, rel. 2007).

  96. National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23–5 (China Statistical Yearbook CD-ROM, rel. 2013).

  97. 找法网 (Find Law Net) 劳动争议案数量仍居高不 (The Number of Labor Dispute Cases Continues to Rise) (19 January 2010) http://china.findlaw.cn/laodongfa/laodongdongtai/16829_2.html. Accessed 11 February 2014. Guangdong, Jiangsu, and Zhejiang saw increases in the number of cases brought to courts by 41.63, 50.32, and 159.61 percent, respectively. Id. A report released by the All-China Federation of Trade Unions (ACFTU) states that the number of cases brought to litigation in courts nearly doubled during this period.; See 中国工会新闻 (China Labour Union News) 全总: 2010年地方劳动争议案件数量呈上升趋势 (A Sharp Increase in the Number of Local Labor Dispute Cases in 2010) (2 September 2010) http://acftu.people.com.cn/GB/197470/12620015.html. Accessed 11 February 2014.

  98. National Bureau of Statistics of China, China Statistical Yearbook 2012, Table 23–5 (China Statistical Yearbook CD-ROM, rel. 2013).

  99. 宿迁市人力资源和社会保障局 (Suqian Municipal Bureau of Human Resources and Social Security) 2012 年劳动人事争议案件情况分析 (An Analysis of the Circumstances of Labor Relations Dispute Cases in 2012) (21 February 2013) http://www.jssq.hrss.gov.cn/2013/0221/11597.html. Accessed 5 February 2014.

  100. 宿迁市人力资源和社会保障局 (Suqian Municipal Bureau of Human Resources and Social Security) 2012 年劳动人事争议案件情况分析 (An Analysis of the Circumstances of Labor Relations Dispute Cases in 2012) (21 February 2013) http://www.jssq.hrss.gov.cn/2013/0221/11597.html. Accessed 5 February 2014. “劳动人事争议案件绝大多数发生在民营企业.” (The vast majority of labor dispute cases arise out of privately owned enterprises). Id.

  101. 宿迁市人力资源和社会保障局 (Suqian Municipal Bureau of Human Resources and Social Security) 2012 年劳动人事争议案件情况分析 (An Analysis of the Circumstances of Labor Relations Dispute Cases in 2012) (21 February 2013) http://www.jssq.hrss.gov.cn/2013/0221/11597.html. Accessed 5 February 2014. Note the 2010 Organizational Rules on the Arbitration of Labor and Personnel Disputes, art. 23 require pre-appointment training for arbitrators. There does not appear to be an equivalent requirement in the law for mediators in the intra-enterprise mediation committees, although the 2010 Provisions on Enterprise Dispute Consultation and Mediation do seek to institutionalize these mediators and encourage their being on the payroll.

  102. 人力资源和社会保障部企业劳动争议协商调解规定 (Provisions on Enterprise Labor Dispute Consultation and Mediation) 30 November 2011.

  103. 劳动人事争议仲裁组织规则 (Organizational Rules of Arbitration for Labor and Personnel Disputes) 20 January 2010.

  104. Cooney et al. (2013), p. 109.

  105. Id.

  106. Id. On the other hand, it can be argued this is inherent in ADR systems, including in the courts.

  107. Id., p. 111. Also, while the U.S. may not be the proper model, there is a legal policy one could consider where courts defer to the decisions of arbitrators in labor disputes of contractual (individual or collective) and statutory labor rights decisions by administrative agencies. Guttman et al. 2013, chap. 14.

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I thank Tim Partelow, my third-year law research assistant, for his able assistance.

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    Ronald C. Brown

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Brown, R.C. Defusion of labor disputes in China: collective negotiations, mediation, arbitration, and the courts. China-EU Law J 3, 117–142 (2014). https://doi.org/10.1007/s12689-014-0041-0

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