Law

Shanxi slaves and the Labor Contract Law

114048548e8.jpg
Zhang Xubo, whose legs were severed in a Shanxi "black" brick kiln in 2002
On Friday, June 29, the National People's Congress voted to pass the Labor Contract Law. Media coverage, including articles in China Daily, The New York Times and The Washington Post, has hastened to situate the law's passage in the context of the recent "Shanxi black brick kiln incident." Meanwhile, Chinese law makers revealed that, during the Standing Committee deliberations, members demanded that the Labor Contract Law "handle" the Shanxi slave situation.

Speaking at an NPC press conference yesterday afternoon, legislator Li Yuan said that the Shanxi kiln case resulted from "dereliction of duty" by government agencies. As a consequence, language was appended to the Labor Contract Law making relevant government bodies and their staff liable if they harm workers or employing units (用人单位) by failing to carry out their duties or if the government bodies or their staff violate the law in the exercise of their powers.

Notwithstanding the media coverage connecting the Shanxi slaves with the Labor Contract Law, the new law has only the scantest relationship to Shanxi's illegal kilns. Passing a law in China takes years, and the Labor Contract Law has been under consideration since 2005. In addition, the key passages of the law — which include requirements for written labor contracts and payment of severance wages, as well as restrictions on fixed-term contracts — offer no solace to slave workers. When bosses kidnap children and force them to work without pay, while the local government looks away and squelches local press reports, a law requiring written contracts is beside the point. Moreover, as Li Yuan pointed out during the press conference, to the extent that the Labor Contract Law explicitly addresses the dereliction of duties that led to the scandal in Shanxi, it's redundant: laws prohibiting the dereliction of duty already exist.

What's significant about the passage of the Labor Contract Law is not that it addresses the Shanxi kiln problem, but that the NPC wanted to create the impression that it would. In other words, the NPC used the Labor Contract Law as an opportunity to appear responsive to public outrage and to pander to public opinion. For a legislative body that isn't popularly elected, it's behaving an awful lot like the U.S. Congress.

Still, whatever might be said about the NPC's sleight-of-hand theatrics, both domestic and foreign press coverage have been accommodating of the illusive connection between the Shanxi slaves and the Labor Contract Law. And for a foreign press that's free of government censorship, it's behaving an awful lot like Xinhua.

Links and Sources
There are currently 8 Comments for Shanxi slaves and the Labor Contract Law.

Comments on Shanxi slaves and the Labor Contract Law

"What's significant about the passage of the Labor Contract Law is not that it addresses the Shanxi kiln problem, but that the NPC wanted to create the impression that it would. In other words, the NPC used the Labor Contract Law as an opportunity to appear responsive to public outrage and to pander to public opinion. For a legislative body that isn't popularly elected, it's behaving an awful lot like the U.S. Congress. "


WHAAAAAAAAAAAAAATTTT?????????

Maya are you out of your mind?

How the hell is the NPC like the U.S. Congress. Once something is passed by Congress and ratified by the president and the Judical branch than it is law...which America follows.

The NPC is just pushing paper and whatever its contents it won't be followed...there is a huge difference. You can never compare the two...The U.S. system is much closer to being fair.

FRITZ:

It think the part "it's behaving an awful lot like [...]" refers to "the NPC used the Labor Contract Law as an opportunity to appear responsive to public outrage and to pander to public opinion".

In other words, the NPC not being an elected body, they basically should have no reason to pander to public opinion, espcially in a biased way like that; yet they did.

"...a law requiring written contracts is beside the point."

is it? or would violation of the writing requirement subject the employer to additional civil liability for each employee not under written contract?

it's hard to say without actually seeing the law itself. if "danwei" has access to the text of the labor contract law, i humbly suggest (read "strongly encourage") that you append it to the links above for the benefit of future readers. if "danwei" does *not* have access to the text of the law ... then what can i say?

@Fritz,

you're awfully naive if you think our system works just like that. American politicians are as quick to make laws as knee-jerk reactions to tragedies for political gain as any other politicians around the world. And, as is becoming increasingly apparent, The Bush/Cheneybot seem more than happy to flout the law whenever it suits their purposes, which is like just about all the time now. So I agree with Maya's assessment, which makes sense because while there's no political party threatening the CCP's rule, outright anarchy in rural areas certainly is. The US system is closer to fairness, but not by as much as we are led to think.

"In other words, the NPC used the Labor Contract Law as an opportunity to appear responsive to public outrage and to pander to public opinion."

Is this a new development? I'm genuinely asking, I don't know. If unusual, surely it's a positive development in many ways? Even if many people perceive the flaw you've noticed, namely that the Law and the scandal are less related than the NPC and media want to make out, there's still a certain feeling of aptness and on-the-ballness about the timing. You know, a bit of the old "heavenly mandate" vibe - but also an encouragement to the people to expect favourable legislative responses to future issues as they emerge.

b.:

Here is an unofficial English translation of the law on the Shanghai American Chamber of Commerce website.

The translation is by Baker & McKenzie.

The Chinese government does not always make draft legislation available to the public; it is unclear from where Baker & McKenzie obtained the original Chinese document.

The second version of the law in Chinese (from December 2006) is available on the official NPC website, here.

thanks for the update, jeremy.

to answer my own question posed above, the labor contract law *does*, as expected, impose civil penalties on employers who fail to establish written contracts for their employees within one month of the commencement of the employment term (ch. 7, art. 82).

this provision, of course, is no magic remedy for labor abuse; but neither is it "beside the point," as maya stated above. rather, by imposing an additional and clearly delimited financial cost for uncontracted employment, the provision cited hits employers where it hurts the most--their pocketbooks (or black, pig-leather man-purses, in the case of china)--and thereby shifts slightly, but no doubt significantly, the economic incentives of uncontracted labor abuse.

legal provisions are seldom magic, even in countries characterized by the rule of law. to expect otherwise in a developing society such as china's is disingenuous, even for the china-apologist. ;-)

i love the legal posts, danwei. keep up the good work!

link

This is another unofficial translation of the final Labor Contract Law created by an international team of legal scholars, lawyers and language specialists, not management consultants.

China Media Timeline
Major media events over the last three decades
Danwei Model Workers
The latest recommended blogs and new media
laomo2010x80.jpg
From 2008
Front Page of the Day
A different newspaper every weekday
From the Vault
Classic Danwei posts
+ Culture and corporate propaganda in Soho Xiaobao (2007.11): Mid-2007 issues of Soho Xiaobao (SOHO小报), illustrating the complicated identity of in-house magazines run by real estate companies.
+ Internet executives complain about excessive Net censorship (2010.03): Internet executives complain about excessive Net censorship at an officially sanctioned meeting in Shenzhen.
+ Crowd-sourced cheating on the 2010 gaokao (2010.06): A student in Sichuan seeks help with the ancient Chinese section of this year's college entrance exam -- while the test is going on!
Danwei Archives