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Collective bargaining in China: Guangdong regulation a harbinger of national model?

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Abstract

Negotiating collective contracts in China can be viewed as a source of “law-making,” regulating the employment relationship; and, issues are raised regarding enforcement of the process and the resultant contract. China’s collective negotiations have evolved from the iron rice bowl to collective contracts negotiated by processes recently resembling “collective bargaining.” Labor disputes frequently occur during the negotiation process and over collective contracts. The All China Federation of Trade Unions increasingly embraces collective negotiations as it strives to stay relevant. While labor rights are dealt with by legal measures providing mediation and arbitration; processes for resolving disputes involving labor interests are still evolving. While use of the Labor Arbitration Committees is widespread for disputes of labor rights, there is a very underdeveloped regulation for resolving labor interest disputes, notwithstanding since 2004 there are national legal provisions in place that could deal with the negotiation process, impasses, or labor interest disputes. Discussed in this paper are the legal developments of collective bargaining and a summary and critique of the September 25, 2014 Guangdong Province Regulation on Collective Contracts for Enterprises. Observations are made whether it can serve as a model for national legislation.

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Notes

  1. 广东省企业集体协商和集体合同条例 (Guangdong Provincial Regulation on Collective Contracts for Enterprises) 25 September 2014 [hereinafter “Regulation”]. Author’s comments are made from the unofficial English translation provided by the International Center for Joint Labor Research, Sun Yat-sen University, Guangzhou. The original Chinese text is official, and is available at The Standing Committee of the Twelfth People’s Congress of Guangdong Province Public Notice (English translation of the Regulation at the University of California Berkeley Labor Center website) http://laborcenter.berkeley.edu/pdf/2014/guangdong-regulation-collective-contracts.pdf. Accessed 7 December 2014.

  2. No More Delay: The Urgent Task of Implementing Collective Bargaining in Guangdong (China Labour Bulletin Statement 16 May 2014) http://www.clb.org.hk/en/content/no-more-delay-urgent-task-implementing-collective-bargaining-guangdong. Accessed 7 December 2014; Empowering the Workers (News article published by the Global Times 28 May 2014) http://www.globaltimes.cn/content/862744.shtml. Accessed 15 August 2014.

  3. Joint Open Letter by Hong Kong Labour Organizations (Letters from Hong Kong Labour Organizations at Students and Scholars Against Corporate Misbehavior Website 24 May 2014) http://sacom.hk/jointopenletterbyhongkonglabourorganizations/. Accessed 7 December 2014.

  4. Jing 23 June 2014.

  5. Regulation, art. 13.

  6. Regulation, art. 24.

  7. Boehler 14 August 2014; Strike Map (China Labour Bulletin map), http://www.numble.com/PHP/mysql/clbmape.html. Accessed 27 August 2014.

  8. Empowering the Workers (News article at Global Times website) http://www.globaltimes.cn/content/862744.shtml. Accessed 28 May 2014; Brown 15 June 2011; Hong 2012, pp. 34, 36.

  9. Id. at 35.

  10. 4.73 in 2012 was down from higher numbers in prior years. Chen 28 April 2014.

  11. Income inequality almost doubled in China between 1980 and 2010 and now points to a “severe” disparity, according to researchers at the University of Michigan. The finding conforms to what many Chinese people already say they believe—in a 2012 survey, they ranked inequality as the nation’s top social challenge, above corruption and unemployment. Chen 28 April 2014; see generally, Xie and Zhou 20 February 2014.

  12. See generally, Brown 2009, pp. 44–62.

  13. E.g., Labor Contract Law and Labor-Dispute Mediation and Arbitration; Brown 2014, p. 117.

  14. Id.; see also Strike Map (China Labour Bulletin map) http://www.numble.com/PHP/mysql/clbmape.html. Accessed 27 August 2014.

  15. See generally, Pringle 2011. This book explains how the All China Federation of Trade Unions (ACFTU) is reforming under current conditions, and seeks to demonstrate that labor unrest is the principal driving force behind trade union reform in China.

  16. See, Brown 2009, pp. 49–53; and Brown 2014, p. 137 n.93. See also, Clarke et al. 2004, p. 250.

  17. Brown 15 June 2011; Friedman and Lee 2010, p. 507–533.

  18. 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 12 March 2011. At present, ACFTU is actively pushing the state departments concerned to rush the formulation of Wage Regulation. 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 ten 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. Issue No. 7/2010 (Newsletter from All-China Federation of Trade Unions 31 July 2010) http://www.acftu.org.cn/template/10002/file.jsp?cid=28&aid=548. Accessed 7 December 2014; ACFTU Presses ahead with Collective Wage Bargaining (Newsletter from All-China Federation of Trade Unions 31 July 2010) http://english.acftu.org/template/10002/file.jsp?cid=23&aid=562. Accessed 7 December 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"); Ziyan 20 August 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 3 year 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.” News about the Maoist Left in China (Blog article from The East is Still Red 29 May 2011) http://eaststillred.blogspot.com/2011/05/news-about-moaist-left-in-china.html. Accessed 10 August 2014; see also, Unions Push for Collective Wage Move (Online article from English People's Daily Online 4 January 2011) http://webcache.googleusercontent.com/search?q=cache:WgGSWfTUOUoJ:english.peopledaily.com.cn/90001/90778/90862/7249154.html&client=safari&hl=en&gl=us&strip=1. Accessed 10 August 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 7 December 2014; for a claim of higher penetration see, Chinese Trade Unions Makes Progress in 2010 (News bulletin from All-China Federation of Trade Unions website 31 January 2011) http://english.acftu.org/template/10002/file.jsp?cid=23&aid=628. Accessed 7 December 2014; see also Li, 11 September 2011, Collective Contracts in Guangdong, at, 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"). See also, 北京市人力资源和社会保障局 (Beijing Human Resources and Social Security Bureau) 关于2012年推进工资集体协商签订集体合同工作的意见 (Opinions About Promoting the Work in 2012 of the Collective Wage Negotiations to Sign a Collective Contract) 14 May 2012 (Website of the Beijing Human Resources and Social Security Bureau 14 May 2012) http://www.bjld.gov.cn/LDJAPP/search/fgdetail.jsp?no=13569. Accessed 27 August 2014; 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 to Carry Out Statistical Bulletin 28 May 2013) http://www.mohrss.gov.cn/SYrlzyhshbzb/dongtaixinwen/shizhengyaowen/201305/t20130528_103939.htm. Accessed 7 December 2014; see also, Chung 2014.

  20. 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 7 December 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) 5 May 2010 (Website of the Ministry of Human Resources and Social Security of the People’s Republic of China 27 July 2011) http://www.mohrss.gov.cn/ldgxs/LDGXjitihetong/LDGXcaihongjihua/201107/t20110727_86307.htm. Accessed 7 December 2014.

  21. 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 (Opinions About Promoting the Work in 2012 of Collective Wage Negotiations to Sign a Collective) 14 May 2012 (Website of Beijing Municipal Bureau of Human Resources and Social Security 14 May 2012) http://www.bjld.gov.cn/LDJAPP/search/fgdetail.jsp?no=13569. Accessed 11 February 2014.

  22. 2012年度人力资源和社会保障事业开展统计公报 (2012 Human Resources and Social Security to Carry out Statistical Bulletin) (Website of Ministry of Human Resources and Social Security of the People’s Republic of China 28 May 2013) http://www.mohrss.gov.cn/SYrlzyhshbzb/dongtaixinwen/shizhengyaowen/201305/t20130528_103939.htm. Accessed 7 December 2014; see also, Chung.

  23. 中华人民共和国劳动和社会保障部 (People's Republic of China Ministry of Labor and Social Security) 集体合同规定 (Provisions on Collective Contracts) 20 January 2004 (Available at Asian LII website) http://www.asianlii.org/cn/legis/cen/laws/pocc373/. Accessed 18 February 2015; Brown 2006, pp. 41–77.

  24. 中华人民共和国劳动和社会保障部 (People's Republic of China Ministry of Labor and Social Security) 关于开展区域性行业性集体协商工作的意见 (Opinions Regarding the Development of the Regional Industry’s Collective Consultations) 17 August 2006 (Website of Ministry of Human Resources and Social Security of the People’s Republic of China) http://www.molss.gov.cn/gb/zxwj/2006-10/24/content_140633.htm. Accessed 7 December 2014.

  25. Chan 24 April 2014.

  26. 中华人民共和国劳动和社会保障部 (People's Republic of China Ministry of Labor and Social Security) 关于开展区域性行业性集体协商工作的意见 (Opinions Regarding the Development of the Regional Industry’s Collective Consultations) 17 August 2006 (Website of Ministry of Human Resources and Social Security of the People’s Republic of China) http://www.molss.gov.cn/gb/zxwj/2006-10/24/content_140633.htm. Accessed 7 December 2014.

  27. Id.

  28. Id.

  29. Guo and Yi 2012, pp. 51–52. This expands on the one section in the 1994 Labor Law, art. 23.

  30. Id. See also, Luo 2011, p. 49.

  31. Wu and Mou 2011, pp. 4–7 (emphasis added).

  32. Id.

  33. Hong 2013, pp. 34, 36. See also, Harper Ho 2009, p. 60.

  34. 中华人民共和国人力资源和社会保障部 (People’s Republic of China Ministry of Human Resources and Social Security) 企业劳动争议协商调解规定 (Provisions on Negotiation and Mediation of Enterprise Labour Disputes) 30 November 2011 (Law Info China website) http://www.lawinfochina.com/display.aspx?id=9130&lib=law&SearchKeyword=mediation&SearchCKeyword=. Accessed 18 February 2015. 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 Regulation 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, China Workers May Get Legal Sanction to Strike in Guangdong Law (News article in Bloomberg News 4 August 2014) http://www.bloomberg.com/news/2010-08-04/workers-in-guangdong-may-get-legal-sanction-to-strike-under-proposed-law.html. Accessed 25 August 2014.

  35. Zhang and Shi 2012, pp. 51, 57.

  36. Id., at pp. 51–52.

  37. Brown 2006, pp. 41–77.

  38. For a complete discussion, see, Brown 2014, p. 117; see also, Biddulph 2012, p. 35. “Collective bargaining reforms will be led by local and regional developments,” citing Drache and Jacobs 2014, p. 329.

  39. 河南省企业集体合同条例 (Regulation of Henan Province on Enterprise Collective Contracts) 24 September 1999 (Available at Law Info China website) http://www.lawinfochina.com/display.aspx?id=13655&lib=law&SearchKeyword=collective&SearchCKeyword=. Accessed 18 February 2015.

  40. 陕西省企业集体合同条例 (Regulation of Shaanxi Province on Collective Contracts for Enterprises) 25 September 2014 (Available at Law Info China website) http://www.lawinfochina.com/display.aspx?id=13454&lib=law&SearchKeyword=collective&SearchCKeyword=. Accessed 18 February 2015.

  41. 北京市集体合同条例 (Regulation of the Beijing Municipality on Collective Contracts) 22 July 2005 (Available at Law Info China website) http://www.lawinfochina.com/display.aspx?lib=law&id=4381&CGid=. Accessed 18 February 2015.

  42. 上海市集体合同条例 (Regulation of Shanghai Municipality on Collective Contracts) 16 August 2007 (Available at Law Info China website) http://www.lawinfochina.com/display.aspx?id=10422&lib=law&SearchKeyword=collective&SearchCKeyword=. Accessed 18 February 2015.

  43. Hebei Province issued its first Regulation on Enterprise Employees Wage Collective Consultation on 21 September 2007. See, ACFTU and Trade Unions (Article from IHLO.org February 2009) http://www.ihlo.org/LRC/ACFTU/040309.html. Accessed 7 December 2014.

  44. 深圳经济特区和谐劳动关系促进条例 (Regulation of the Shenzhen Special Economic Zone on the Promotion of the Harmonious Labor Relationship) 23 September 2008, see also, Shenzhen Drafts New Labor Law (News article in China Daily 1 September 2010) http://www.chinadaily.com.cn/business/2010-09/01/content_11240345.htm. Accessed 7 December 2014.

  45. Dalian Wage Collective Consultation Provisions was issued on June 19, 2009. Regulation for Enterprises Wage Collective Bargaining (the Tianjin Regulation) was issued on 22 July 2010. See, Deng 11 November 2010.

  46. Tianjin promulgated the Regulation for Enterprises Wage Collective Bargaining (the Tianjin Regulation) on 22 July 2010. See, Deng 11 November 2010.

  47. Hangzhou and Ningbo Pioneer Collective Wage Negotiation (LawInfoChina.com 2 April 2014) http://www.lawinfochina.com/Search/DisplayInfo.aspx?lib=news&id=12355. Accessed 7 December 2014; see also, Li 19 May 2014 (“This March, two cities in Zhejiang Province, Hangzhou and Ningbo, passed Regulation requiring local employers to conduct collective salary negotiations, or risk financial sanctions”).

  48. “The Standing Committee of the People’s Congress of Zhejiang Province recently approved the Regulation of Hangzhou City on Collective Wage Negotiation in Enterprises and the Regulation of Ningbo City on Collective Wage Negotiation in Enterprises. Both Regulations above clarify issues about collective wage negotiation including representatives, procedures and content.” Hangzhou and Ningbo Pioneer Collective Wage Negotiation (LawInfoChina.com 2 April 2014) http://www.lawinfochina.com/Search/DisplayInfo.aspx?lib=news&id=12355. Accessed 24 August 2014; see also, Li 19 May 2014. (“This March, two cities in Zhejiang Province, Hangzhou and Ningbo, passed Regulation requiring local employers to conduct collective salary negotiations, or risk financial sanctions”). Id.

  49. Li 19 May 2014.

  50. Deng 11 November 2010; see also, Biddulph 2012, pp. 51–52. A review of national and local developments can be found at Lauffs and Isaacs October 2010.

  51. For further discussion, see Luo 2011, p. 49.

  52. 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 29 November 2010, and was effective as of 1 January 2011. See, Fujian: Three Circumstances to Trigger the Collective Negotiation of Salary (Newsletter King & Wood Mallesons 2011) http://www.kingandwood.com/article.aspx?id=Fujian-Three-Circumstances-to-Trigger-the-Collective-Negotiation-of-Salary&language=en. Accessed 7 December 2014; see also, People’s Republic of China (Newsletter Baker & MacKenzie December 2010) http://m.bakermckenzie.com/files/Publication/6f223eaa-fca8-48ff-b8259461211a5a73/Presentation/PublicationAttachment/12f9ea7f-ac73-4090-a60ea2d659af165c/nl_china_employmentlawupdate_dec10.pdf. Accessed 7 December 2014.

  53. 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.” Fujian: Three Circumstances to Trigger the Collective Negotiation of Salary (Newsletter King & Wood Mallesons 2011) http://www.kingandwood.com/article.aspx?id=Fujian-Three-Circumstances-to-Trigger-the-Collective-Negotiation-of-Salary&language=en. Accessed 7 December 2014; see also, People’s Republic of China (Newsletter Baker & MacKenzie December 2010) http://m.bakermckenzie.com/files/Publication/6f223eaa-fca8-48ff-b8259461211a5a73/Presentation/PublicationAttachment/12f9ea7f-ac73-4090-a60ea2d659af165c/nl_china_employmentlawupdate_dec10.pdf. Accessed 7 December 2014.

  54. “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 3000–30,000 on the enterprise, and at the same time may impose a fine of RMB 1000–10,000 on the legal representative or the principal person in charge of the enterprise.” Fujian: Three Circumstances to Trigger the Collective Negotiation of Salary (Newsletter King & Wood Mallesons 2011) http://www.kingandwood.com/article.aspx?id=Fujian-Three-Circumstances-to-Trigger-the-Collective-Negotiation-of-Salary&language=en. Accessed 7 December 2014; see also, People’s Republic of China (Newsletter Baker & MacKenzie December 2010) http://m.bakermckenzie.com/files/Publication/6f223eaa-fca8-48ff-b8259461211a5a73/Presentation/PublicationAttachment/12f9ea7f-ac73-4090-a60ea2d659af165c/nl_china_employmentlawupdate_dec10.pdf. Accessed 7 December 2014.

  55. 浙江温岭工资集体协商破解劳资纠纷中国商报 (Wenling Collective Wage Negotiations is Breakthrough for Labor Disputes, China Daily) (News article from China Business Herald Net 10 October 2008) http://www.cb-h.com/news/gc/2008/109/08109142531HDBEIAJIC62E2JC8H712.html. Accessed 18 February 2015; translated in Collective Wage Consultation: A Breakthrough for Resolving Labor Disputes in Wenling Zhejiang (China Labour News Translations 10 October 2008) http://clntranslations.org/file_download/87. Accessed 7 December 2014; see also, 老板员工何以做到“一家亲”:浙江温岭市推行行业工资集体协商 (How Bosses and Employees Can Establish "Family Ties": Wenling Implements the Collective Bargaining) (News article CNLSSLAW.com 25 January 2008) http://www.cnlsslaw.com/list.asp?Unid=4208. Accessed 18 February 2015; translated in How Bosses and Workers Can Become ‘One Big Happy Family’: A Report on an Inquiry into the Introduction of Collective Wage Consultation in Wenling City, Zhejiang (English translation in China Labour News Translations 25 January 2008) http://www.clntranslations.org/file_download/88. Accessed 7 December 2014; and see, Lüthje et al. 2013, p. 270 (comments regarding Wenling Model).

  56. See discussion in, The Wenling Model: An Experience in Trade-wide Collective Bargaining (English translation in China Labour News Translations 21 October 2009) http://www.clntranslations.org/article/49/wenling. Accessed 7 December 2014.

  57. 老板员工何以做到“一家亲”:浙江温岭市推行行业工资集体协商 (How Bosses and Employess Can Establish "Family Ties": Wenling Implements the Collective Bargaining) (News article (News article CNLSSLAW.com 25 January 2008) http://www.cnlsslaw.com/list.asp?Unid=4208), translated in How Bosses and Workers Can Become ‘One Big Happy Family’: A Report on an Inquiry into the Introduction of Collective Wage Consultation in Wenling City, Zhejiang (English translation in China Labour News Translations 25 January 2008) http://www.clntranslations.org/file_download/88. Accessed 7 December 2014.

  58. Id.

  59. Biddulph 2012, p. 52.

  60. 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 Eleventh People's Congress Standing Committee on November 30, 2011, and are hereby promulgated, effective since 1 January 2012. See text at 广州市劳动关系三方协商规定 (Draft Ordinance on Democratic Management of Enterprises of Guangdong Province) (Sina.com website 29 December 2011) http://news.sina.com.cn/o/2011-12-29/063123713580.shtml. Accessed 7 December 2014; see commentary at Guangzhou Government Passed New Law to Institutionalise Collective Negotiation and Mediate Strikes under the Tripartite Mechanism (News bulletin at IHLO website November 2011) http://www.ihlo.org/LRC/Laws/001111.html. Accessed 7 December 2014.

  61. 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 (Lookout Observation Network) website 13 February 2013) http://www.lwgcw.com/NewsShow.aspx?newsId=30568. Accessed 7 December 2014.

  62. 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 (China Reform Network) website 28 March 2013) http://www.chinareform.net/html/category46/48/20130328/11920.html. Accessed 7 December 2014.

  63. 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, Collective Bargaining for Wages (News article on Shenzhen Government Online 16 August 2010) http://english.sz.gov.cn/ln/201008/t20100816_1559482.htm. Accessed 7 December 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 (News bulletin at IHLO November 2011) http://www.ihlo.org/LRC/SW/001111.html. Accessed 7 December 2013; see text of the 深圳经济特区集体协商条例 (修改草案征求意见稿) (Collective Consultation of Shenzhen Special Economic Zone Ordinance (Draft of the Revised Version for Requesting Comments) (Draft of Regulation at law-lib.com website 10 September 2010) http://www.law-lib.com/fzdt/newshtml/20/20100910142616.htm. Accessed 7 December 2014; A description of a successful collective bargaining process is found in, Collective Bargaining at the Shenzhen Citizen Watch Factory (News article China Labour Bulletin website) 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 5 years of "40-min-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 (News article at eChinacities.com website 14 December 2011) http://www.echinacities.com/china-media/closer-to-labour-reform-china-s-first-successful.html. Accessed 7 December 2014.

  64. Regulation, supra note 1. On October 11, 2013, a Code of Collective Bargaining was been issued by a non-governmental group outlining what it felt would be a good law. The non-governmental group was composed of the Trade Union Lawyers’ Delegation, formed in July 2010, and was led by the Guangdong Provincial FTU, the Department of Justice, and the Lawyers’ Association. The Lawyers’ Delegation provides professional services to the unions, namely mediation in mass labor disputes, providing advice and assistance to the unions in commencing collective wage negotiations, and drafting labor legislation. The provincial FTU chairs the leadership committee of the delegation whose office is placed under the Legal Aid Department of the provincial FTU. The provincial Trade Union Lawyers’ Delegation is composed of the Provincial FTU’s delegated lawyers and those under the twenty-one federations in the province. Also see, Procurement of Legal Aid and Collective Negotiation Services from the Commercial Law Firms in Shenzhen and Guangzhou City (News bulletin at IHLO website November 2011) http://www.ihlo.org/LRC/SW/001111.html. Accessed 7 December 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 (citing “Regulations on Collective Bargaining and Collective Contract in Companies of Fujian Province" passed on November 29 during a meeting of the Standing Committee of Fujian People’s Congress and to be enforced from January 1, 2011, replacing the current Regulation on Enterprise’s Collective Contract of Fujian Province"). Id.

  65. Harper Ho 2009, p. 60. For a perspective informing on related ILO labor standards, see, Zheng 2014, pp. 73–85.

  66. Regulation, arts. 2–4 and 27. In contrast to earlier drafts, industrial or regional unions are no longer explicitly highlighted to negotiate for the employees, though ostensibly this is not precluded; and also, dispatch workers are no longer covered and authorized to form their own negotiating unit and union representative.

  67. Regulation, art.5. But see, id. arts. 32–34 (authorizing third-party mediators and trade union and employer organizations to resolve some labor disputes).

  68. Regulation, art. 13. One-half of the workers must support the request to bargain. Id. art. 18. An earlier 2014 draft proposal required only one-third of the workers support the request. Unlike prior drafts, there is no explicit reference on using third party representatives or industrial or regional unions to negotiate for the employees, though ostensibly this is not precluded.

  69. Regulation, art. 16.

  70. Regulation, arts.8–11.

  71. Regulation, art. 17; but see id. art 25 (allowing the parties to “set a new time to resume”).

  72. Regulation, art. 17. Employees must have majority support via the trade union to initiate negotiations. Id.

  73. Regulation, art. 19. The earlier draft’s authorization of employee work stoppages for failure to timely respond is removed.

  74. Regulation, arts. 15 and 23. The employer would provide business and related materials and the union presumably would provide requested information of unknown nature, perhaps about the negotiation data it is using.

  75. Regulation, art. 20.

  76. Regulation, art. 17. It will be interesting to see how this gets implemented. In some factories in Guangdong, negotiations take place twice a year, once over wage rates, and another time over the determination of amount of annual bonuses. In fact many strikes take place over disputes about annual bonuses. Article 25 authorizes the parties to set a new time to resume negotiations. Id. art. 25.

  77. Regulation, art. 5. They also are to “establish a tripartite mechanism for the coordination of labor relations in conjunction with trade unions and enterprise organizations.” Id.

  78. Regulation, art. 22. Such misconduct can include intimidation, bribes, violence, personal restrictions, etc. Id.

  79. Regulation, arts. 14–15.

  80. Regulation, arts. 39–44.

  81. Regulation, art. 24. This replaces the prior drafts more explicit prohibition on work stoppages or misconduct during the negotiation process.

  82. Regulation, art. 26.

  83. Regulation, arts. 23, 32. The earlier draft’s authorization of a strike when the employer failed to negotiate was excised. Liabilities may criminal or not. Id. art. 40.

  84. Regulation, arts. 40, 43. Removed from its duties included under earlier draft proposals, was a provision if there was a work stoppage, the trade union had a explicit duty to harmonize the issues between the parties. This would seem to be extraneous in that such obligation exists under other national labor legislation.

  85. Regulation, arts. 31–33. It is unclear from Article 32 whether either or both parties may request, but likely it is the former when read in conjunction with Article 31. See id. There is no mention of payment for the services; whereas a prior draft had provided for creation of a new pool of mediator-arbitrators with government subsidization under separate Regulation. State-Owned-Enterprises (SOE) or Public Institution Disputes: Separate provisions are provided for handling their labor disputes. Id. art. 37. Earlier draft proposals had provided State-Owned-Enterprises had special provisions for strikes and lockouts involving higher levels.

  86. Regulation, art. 34. One might presume this “consensus” is intended to bring the parties to accept a mediation agreement.

  87. Regulation, art. 35.

  88. Regulation, art. 36. Labor disputes over negotiations or performance may be submitted to the labor bureau presumably after the options of the use of third party or the trade union mediation, or the assistance of enterprise organizations. This sequence is not clear from the wording of the Regulation. The government-coordinated intervention arguably could draw upon the existing tripartite mechanism referred to in Article 5 of the Regulation. Id. art. 35.

  89. Regulation, art. 38. It is assumed the use of the word “enforcement” (art. 36) and “performance” (art. 38) are interchangeable and are a variant of translation. Id. arts. 36, 38. Earlier draft proposals had provided for a pool of tripartite government-subsidized arbitrators who would provide a “draft mediation-arbitration opinion” with an execution date. It is unclear to the author whether the labor bureaus will utilize their labor Arbitration Commissions in this endeavor.

  90. Regulation, arts. 39–44. The 1 September 2014 Regulation omits particular remedies for so-called “unfair labor practices” that were in the earlier Draft Proposal. For example, for employer violations, the labor bureau had authority to give a public reprimand or order cessation, and where employer wrongfully refused to implement a mediation-arbitration order, then employees could strike and not be terminated for it. Draft Guangdong Provincial Regulation on Collective Contracts for Enterprises, arts. 19, 24–25, and 51 (September 1, 2014). Author’s comments are made from the unofficial English translation provided by the International Center for Joint Labor Research, Sun Yat-sen University, Guangzhou. Employer can terminate employees for employees’ unfair labor practices under articles 24 and 26. Id. art. 54. On file with author.

  91. Regulation, art. 28.

  92. Regulation, art. 29.

  93. Commentators compared the Code and the 2013 prior draft of the Regulation and stated that though the Regulation were an improvement on earlier drafts, “the Code, by contrast, is based entirely on the first-hand, practical experience of workers and labor organizations in conducting bargaining on the ground in Guangdong. Developing a Blueprint for Collective Bargaining in China (Analysis and commentary on China Labour Bulletin website 28 October 2013) http://www.clb.org.hk/en/content/developing-blueprint-collective-bargaining-china. Accessed 18 February 2015; see also 劳资集体谈判守则 (A Code of Collective Bargaining) (Draft of the Code reprinted at China Labour Bulletin website 11 October 2013) http://www.clb.org.hk/en/sites/default/files/File/A%20Code%20of%20Collective%20Bargaining.pdf. Accessed 7 December 2014 [hereinafter Code].

  94. Code, art. 60.

  95. Code, art.18.

  96. Code, art. 61.

  97. Code, art. 64.

  98. Regulation, art. 20.

  99. Regulation, art. 17.

  100. The national discussion on the legality of strikes continues in and out of academic discussions. See, Should China Create a Law on Strike? (News article at China Labour News Translations website 20 July 2011) http://www.clntranslations.org/article/62/strike+law. Accessed 7 December 2014. And see, For Chinese Workers the Right to Strike is an Academic Issue (News article at China Labor Bulletin website 12 March 2013) http://www.clb.org.hk/en/blogs/jennifer/chinese-workers-right-strike-academic-issue. Accessed 7 December 2014.

  101. Regulation, art. 32.

  102. The number of collective labor rights disputes in labor arbitration forums (i.e., those with more than ten workers filing a common claim) appears to be falling. Collective contract labor interest disputes have not been arbitrated through the labor arbitration process. See, Brown 2014, p. 131 n.69. A question would seem to exist whether these labor disputes are really eligible for arbitration under the LDMA? It may be as an issue of contract enforcement they will go directly to court?

  103. See, Brown 2014, p. 117.

  104. Lei 12 May 2010. Of workers polled in 2010, over sixty percent of them believed low income to be the biggest inequality facing workers in China. Id.

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    Ronald C. Brown

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Brown, R.C. Collective bargaining in China: Guangdong regulation a harbinger of national model?. China-EU Law J 4, 135–154 (2015). https://doi.org/10.1007/s12689-015-0056-1

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