Freedom to organise, Right to Strike, Free Negotiation
Communique N.38, 2014-09-11, from the WORKERS RIGHTS IN CHINA COMMITTEE, published 2014-09-19 by the "ILC International Newsletter", New Series N. 192 (561):
A trade union delegate faces up, despite official pressure! This September – a Back to School and Back to Work season that promises to be difficult - the “Workers Rights in China” Committee reports on the story of this confrontation that is pitting (from the “China Labour Bulletin”, June 26 2014):
Wal-Mart against the Strikers and the Delegate -
According to the business daily newspaper The Financial Times (15 June), the Chinese Communist Party of Changde (in the Hunan province) has undertaken a door-to-door operation in an attempt to break the occupation movement on the premises of a Wal-Mart supermarket that has been going on since last March: “On June 12th, cadres of the local committee knocked on the doors at the homes of each of the 69 employees (…) with a photo of the employees in their hands, to give the following message to their family: ‘stop blocking the moving of goods and merchandise from the store, accept Wal-Mart’s proposal of 3000 yuans as legal indemnity’.” In fact, the American super-store giant Wal-Mart has decided to close about twenty of its stores in China, including the Changde one (see issue n° 424 of the Letter). The delegate of the official trade union the ACFTU, Huang Xingguo, considers that the management has acted illegally, as the only motive for closing that is compliant with the law is that of an imminent risk of bankruptcy. All the employees were present at the arbitration committee that was held on May 27, to support their delegate and the lawyers. One of the 69 employees said, “Wal-Mart claims to value its employees, but once they don’t need you anymore, the scrap you”.
Illegal breaking of employment contract -
Huang explained to the China Labour Bulletin – the association that promotes labour rights (27 June) – “There are very precise disposition in our employment contract that refer to the Labour Law concerning the breaking of a contract. In the case of dismissal, an information meeting with the employees must be convened, either directly or through the trade union, 30 days before. Among other things, the dismissal plan must be reported to the Labour administration. This is the legal process that must be complied with”.
However, Wal-Mart announced on March 5th that the dismissals would take effect with the closing of the store on March 19th, i.e., a period of 2 weeks rather than 30 days, which makes the breaking of the employment contract illegal. This is why the employees and their delegate asked for a doubling of the indemnity for ending the contract, calculated on legal basis of seniority. The 69 employees refuse the 3000-yuan indemnity, even if part of the 130 employees accepted it. “As long as there is one single worker who desires to continue this fight, we will defend them (…) And if necessary, we will to all the way to the Supreme Court in Beijing”, said Huang, who what the administrative manager of the store.
Unlike the other stores where the Wal-Mart management chooses the trade union head, a democratic trade union election has been held in Changde. When the conflict broke out, the employees went spontaneously to the trade union of their company, then to the town’s trade union Federation and the Labour administration, but the importance of Wal-Mart for the town and for the country (400 superstores and another hundred to come) paralysed those two institutions.
A mandate -
The first things that they decided was to give a mandate to a team for the negotiation: “The employees knew that there would be four or five Wal-Mart negotiators up against one single interlocutor and that the balance of power would be skewed. So they asked the trade union, as an organisation, to present their demands. Thus a plenary meeting of the trade union committee was convened, to discuss all this and to decide on a position. And then the drawing up of the mandate for the trade union began.” The employees signed off this mandate on and a list of 15 demands was added in appendix. The trade union members were called on to vote on the demands and resolutions were voted.
There was nothing extraordinary about the demands (for example, paying bonuses instead of replacing them with “company gifts”) because everyone knew that the store had always lost money and yet the wages were only 90 yuans (less than $7) above the local minimum wage.
So almost all the demands had been accepted, except the indemnity for the illegal breaking of the contract. “… Why did they persist? Simply because we had devoted our lives to this company, to work there up until retirement. Everyone had personally invested, including doing unpaid overtime and sometimes giving up holidays. Everyone had given for this company. And suddenly, in no time, they threw us out on the street!” said the delegate Huang.
When the officials give active support to Wal-Mart…
Naturally, Huang did not fail to address the town’s ACFTU Federation. At first, there was a refusal to consider the affair, on the motive that financial compensations was not under their power. Then the president of the Federation gave a condition: “We expect of you that you not harm investment in Changde. We do not want to see the town’s image damaged, and so you must not contact any outside media.”
This, delegate Huang accepted and gave up on contacting the media, whilst the Changde ACFTU exhorted Wal-Mart to “make concessions” in order to keep the affair from deteriorating. The ACFTU offered no financial help but several lawyers who were willing to commit to the fight were presented to Huang. That is when the municipal government intervened. All of a sudden, the lawyers became reticent. Huang describes the “dialogue” that was then established: “Two coordination meetings were held. The government did not accept my point of view and affirmed that the closing was legal. At one meeting, I told the district officials and the trade union federation ones that the legal dispositions of the 30-day notice were clear, to the point that even a high-school student could understand. They answered: ‘If you are a high-school student, we are the teachers, and our final decision is the one that counts’.”
As representative of the strikers, Huang was obviously very exposed: municipal officials told him during the negotiations that if he didn’t respect the law, if he made trouble, he could be arrested at any time. Let us specify that at the beginning of the conflict, Wal-Mart management held out the prospect to him of a better position in another town (he was an administrative manager).
Finally, to those who proposed reviewing the demand for indemnity at a lower figure, Huang fiercely held up the employees’ rights and the very letter of the law. For him, it was out of the question to bargain on what was supposed to have been already acquired. Unfortunately, that was not the opinion of the town’s Commission for the Arbitration of Labour Conflicts, who judged on the question three months later, granting – it is true – more than what Wal-Mart wanted, but less that what the strikers demanded.