This report is an extended research project following the 2005 one,
Crushed: A Survey of Work Injuries and Treatment in the Pearl
River Delta . It has two key components. The first part is a
similar survey study based on interviews with 260 injured workers
from the Shenzhen metropolitan area between May and November 2006.
The purpose of this part is to identify some common characteristics
shared by these work injury cases and injury victims. The second
part is case studies that document and analyze the procedures to
claim and receive work injury compensation based on actual cases
that China Labor Watch¡¯s field staff was involved with directly or
provided legal assistance through collaboration with lawyers. The
purpose of this part is to study a few typical work injury cases
under a microscope in order to unearth common institutional and
practical barriers migrant workers encounter in their complaint
filing journey and to discuss possible and effective measures to
address them. The length and difficulty of that process has given
this report its title.
Click Here to print the PDF version: The Long March:Survey and Case Studies of Work Injuries in the Pearl River Delta Region
http://www.chinalaborwatch.org/2007FinalWorkInjuryReport.pdf
Table of Content
I. Introduction
II. Survey Data Analysis
Background and Methodology
Attributes of Injured Workers
Work Conditions Associated with Work Injury Cases
Injury-Related Information
Summary
III. Case Studies
The Winbo Industrial Co. Ltd. Case
The GP Battery International Ltd. Case
IV. Discussion: Problems, Causes and Recommendations
Typical Violations
Action and Policy Recommendations
V. Conclusion
*Attachment 1: GP products available in the United
States.
*Attachment 2: Letters to multinational corporations
involved
As the title ¡°the world¡¯s manufacturing plant¡± (ÊÀ½ç¹¤³§)
suggests, China is the largest producer and processor in the world
today. It manufactures 75% of the toys, over 50% of the shoes, and
60% of the LCD (liquid crystal display) panel in the global market.
By the end of 2006, Guangdong Province had a total number of 841,000
registered enterprises, the greatest number in China, which included
551,000 private enterprises. Dongguan City alone (a manufacturing
center located in the Pearl River Delta region, Guangdong Province)
has over 15,000 firms manufacturing everything from textiles to
furniture to high-tech products such as finger print identifier.
Most of these products are made by migrant workers, who come from
the inner and rural parts of China to work in factories in cities
temporarily. According to the Chinese official statistics, China¡¯s
migrant population has reached 150 million in 2005, which
constitutes 11.5% of the total population. Most migrants are 15-39
years olds, with 75.3% of all female workers and 69.2% of all male
workers in the age group (National Bureau of Statistics, 2005).
About half of all migrant workers are women.
Image 1: Map of the Pearl River Delta Region and Guangdong Province,
China
In China¡¯s unprecedented economic boom in the past two decades,
migrant workers contributed more than 20% of the GDP growth. Yet
most of them were not awarded commensurate benefits, and for the
limited financial gains they did receive, they paid a very high
price. The Ministry of Labor and Social Security of China revealed
that the number of deaths caused by industrial accidents had
increased from 100,000 in 2000 to 136,000 in 2004. Most of them are
found in private enterprises (founded by local or foreign capital),
township and village enterprises. Among the three high-risk
industries (mining, construction and occupations exposed to
dangerous chemicals), migrant workers constitute over 80% of the
total injury and death number. About 5000 Chinese mine workers die
of industrial accidents every year. That number is roughly 4/5 of
the world¡¯s total, while China only produces 1/3 of the world¡¯s
coal output.
In the Peal River Delta region (where manufacturing cities like
Guangzhou, Shenzhen, Dongguan, Zhongshan and Zhuhai are located),
about 40,000 fingers are severed due to industrial accidents a year.
However, the work injury complaint filing, deciding and enforcing
process takes up to 1,070 days on average, which is an unaffordable
high price for most migrant workers who usually have no source of
income during the long waiting period. Due to the complexity and
long process of applying for and receiving legal compensation, most
workers choose to reach a private settlement with the employer,
which results in significantly lower amount of actual compensation.
The rate and seriousness of work injuries and the various
difficulties associated with the compensation application process
have become one of the greatest plagues migrant workers are facing
today.
Aware of the fact that little systematic documentation and research
have been done on work injury-related matters, China Labor Watch
conducted a large survey study in the Pearl River Delta region and
issued a report in September 2005. In that report, ¡°Crushed: A
Survey of Work Injuries and Treatment in the Pearl River Delta,¡±
the data was taken in interviews with 177 workers in fourteen
hospitals in the Dongguan and Shenzhen metropolitan areas. It
provided some initial probing into the correlation between fatigue
and the occurrence of work injuries.
This report, ¡°The Long March: Survey and Case Studies of Work
Injuries in the Pearl River Delta Region,¡± is an extended research
project following the 2005 one. It has two key components. The first
part is a similar survey study based on interviews with 260 injured
workers from the Shenzhen metropolitan area between May and November
2006. The purpose of this part is to identify some common
characteristics shared by these work injury cases and injury
victims. The second part is case studies that document and analyze
the procedures to claim and receive work injury compensation based
on actual cases that China Labor Watch¡¯s field staff was involved
with directly or provided legal assistance through collaboration
with lawyers. The purpose of this part is to study a few typical
work injury cases under a microscope in order to unearth common
institutional and practical barriers migrant workers encounter in
their complaint filing journey and to discuss possible and effective
measures to address them. The length and difficulty of that process
has given this report its title.
II. SURVEY DATA ANALYSIS
Background and Methodology
The data in this part of the report was collected between May and
October 2006 from 260 workers in fifteen hospitals in the Shenzhen
metropolitan area. Shenzhen is a sub-provincial city of Guangdong
Province in southern China. It is located at the border with the
Hong Kong Special Administrative Region. It is a center of foreign
investment and has been one of the fastest growing cities in the
world since the late 1970s. In the past two decades, over $30
billion has been invested in Shenzhen to build factories and form
joint ventures. Since the establishment of the Special Economic
Zone , Shenzhen¡¯s economy has boomed rapidly. Its GDP totaled
492.69 billion RMB (US$61.6 billion) in 2005, up by 15% from the
previous year. Shenzhen is a major manufacturing center in China.
Its import and export volumes have been the first among mainland
Chinese cities for the last nine consecutive years. It also comes
the third in the actual foreign capital inflow.
All the hospital visits involved in this research project were
unannounced; dates and individual interview subjects were chosen at
random, so that it should most likely reflect an accurate profile of
the overall injured worker population in Shenzhen. All the survey
interviews were conducted without any hospital or factory officials
present, so that workers could speak honestly and without fear of
retaliation. The interviews covered 246 factories that employ over
199,105 workers in total. It is reasonable to assume that the
conditions reported in these interviews reflect the general and
typical conditions of work injury victims and the employing
factories in Shenzhen, as well as the Pearl River Delta region.
Attributes of Injured Workers
Place of Origin. Most interviewed workers are from central and inner
provinces in China. Of 260 interviewed workers, Hunan Province is
the place of origin for most workers: 52 of them come from Hunan.
The top five provinces, Hunan, Sichuan, Guangxi, Henan and Hubei,
together are the places of origin for 197 workers (76.1% of total
workers). Only 10 workers are from Guangdong Province. Migrant
workers constitute 96.1% of injured workers. This is in fact one of
the root causes for workers¡¯ health issues in southern China.
Because China has a strict household registration system (¡°Hukou¡±
or ¡°»§¿Ú¡±) that identifies a person as of either urban residence
or rural residence, the rural identification puts migrants in a much
disadvantaged position in urban society. The Hukou system has been
somewhat loosened in recent years but continues to be a barrier for
the free movement of migrant workers. Better job opportunity and
more income in cities keep bringing workers into the Pearl River
Delta region, despite the often poor working and living conditions
and little access to public health services. The marginalization of
rural migrants has been one of the most troubling issues in the
process of urbanization in China. It is also the larger background
picture of this work injury research report.
Age, Sex, and Marital Status. The average age of injured workers was
26 years old. The median age was 24. Only eight workers, 3% of all
workers interviewed, were women. The rest 97% workers were men. This
largely reflects the gender distribution among different sectors:
more men work on heavier and more dangerous posts while more women
work in the service and light industries. As Image 3 demonstrates,
injured workers tend to be very young and single. There are 179
(69%) workers under the age of 30 and 162 (91%) of whom are single.
It is to be noted that two of the interviewed workers were 15, which
is below the legal age required to be employed. The Chinese labor
law stipulates no employer or company shall hire employees under the
age of 16. This is an evident violation of law. Of all workers
interviewed, 64% were single and 34% were married.
Image 3: Age and Sex of Injured workers
Age Sex Marital Status
Male Female Single Married
15-19 57 1 58 0
20-29 116 5 104 17
30-39 53 2 3 52
40-49 25 0 1 24
50-59 1 0 0 1
Total 252 8 166 94
Total % 97% 3% 64% 36%
Education Levels and Knowledge of Labor Law. The education levels of
injured workers are relatively low. Only 38 workers (16%) attended
school beyond the legally required nine years of compulsory
education and two workers (0.8%) received education beyond high
school. In contrast, 63 workers (26%) did not complete the free
compulsory education program. Injured workers possessed very little
to no knowledge regarding their rights and entitled compensation
when injured at work. Among 241 workers who responded to the
question, 218 of them (90%) said they had no knowledge of labor law
whatsoever and 23 (9.5%) said they knew ¡°a little.¡± In the sources
of legal knowledge given by workers, ¡°legal pamphlets¡± (6),
¡°friends¡± (5) and ¡°consulting lawyers¡± (3) were mostly cited.
Other workers acquired legal knowledge from ¡°books,¡±
¡°television,¡± or ¡°previous injury.¡±
*Total number is 240. Twenty case data
were unavailable in this question.
Work Conditions Surrounding Work Injury Cases
Labor Contract and Work Injury Insurance. Among all workers who
answered the questions (251), 163 (65%) of them had labor contract
and 87 (35%) did not. Meanwhile, 179 out of 246 workers (73%) had
work injury insurance and 67 (27%) workers did not. These numbers
mark significant improvement from an independent research in 2003
(61.7% of the injured workers did not have labor contract ) and CLW¡¯
s 2005 report (¡°only half of workers surveyed reported any work-
injury insurance.¡±). However, being insured does not guarantee
workers¡¯ receiving lawful compensation. In practice, employers
often have a special relationship with the hospitals they send
injured workers to, who would withhold workers¡¯ medical documents,
so that workers cannot apply for work injury certificate and
evaluation timely. In return, employers will keep sending injured
workers to such hospitals. Employers, on the other hand, often deny
the employment relationship with injured workers or refuse to
produce necessary documentation for filing claims. Another common
practice is that, in many factories, employers purchase work injury
insurance for a fraction of total workers in order to save money.
Then they would have injured workers to claim compensation under the
insured workers¡¯ names, which often cause delay and complication of
compensation claiming or denial.
Work Hours. Surveyed workers on average worked 10.7 hours a day (11
hours a day in the 2005 CLW report). Only 12 out of 255 workers
worked 8 hours a day, the legal daily work hours. Sixty-two workers
reported that they did not have one day off in a month; 20 workers
had one rest day every other week; 148 workers had one rest day
every week; and only 10 workers had two rest days every week, which
is the legal mandate. However, under the Chinese labor law, workers
shall not work overtime more than three hours a day, 36 hours a
month. As we can see, the violation of maximum work hours is a
common practice in the manufacturing factories in the Pearl Delta
River region.
Income. The average income, including overtime, of surveyed workers
was 1205 RMB (US$154) per month, which is significantly higher than
the 2005 CLW report (804 RMB, US$99). This can be explained by the
recently increased minimum wage in Guangdong Province and the higher
income level in Shenzhen than Dongguan. Thirty-one workers were paid
less than the minimum wage standard in Shenzhen (710 RMB per month
within the Special Economic Zone, 690 RMB outside; 810 and 710 RMB
from July 1, 2006), while a few dozen barely surpassed the minimum.
However, the minimum wage standard is based on the work schedule of
8 hours a day, 5 days a week. With this consideration in mind, a
much greater number of workers are paid at minimum wage rate or
below. In fact, when calculated by hourly rate, only 34 out of 232
workers were paid more than 4.3 RMB or 5.1 RMB (on and after July
1, 2006) per hour (hourly rate under the minimum wage standard).
Over 85% of surveyed workers were paid less than the hourly minimum
wage.
According to other research, over 60% migrant workers in Guangdong
Province receive 500-1000 RMB monthly income, which is only 20-30%
of the average income of the local Guangdong residents. Monthly
living expenses in Guangdong Province are about 400-500 RMB at
minimum. More than half of the migrant workers have to work 10-16
hours a day in the peak season to compensate for the low income.
The majority of the enterprises do not pay legal overtime
compensation.
Employer and Factory Information. Among the 250 respondents, 129
workers (51.6%) work for locally invested factories (registered by
mainland investors). Fifty-three factory owners are from Taiwan, 46
from Hong Kong, 9 from EU/US, and 13 from other places. The total
number of employees of involved companies is 199,105, with 64
companies employing less than 100 workers, 110 companies employing
100-499 workers, 32 companies employing 500-999 workers, 36
companies employing 1,000-8,000 workers, and 4 companies employing
over 10,000 workers (total company number is 246).
Injury-related Information
Type of Injuries. Among 259 responding workers, 210 reported finger
injuries, 23 reported hand or wrist injuries, 11 reported arm
injuries, with the rest being leg, foot, ankle or other injuries.
Ninety percent of all injuries were of victims¡¯ hands or arms, with
severity ranging from cuts and burns to severe nerve damage,
permanent paralysis and the loss of entire digits and limbs. The
most common injuries reported were broken or severed fingers on the
dominant hand. This finding is consistent with other independent
research that indicated there are about 40,000 fingers severed every
year in the Pearl River Delta region. It is said that there were
about 300 clinics in Kai County, Sichuan Province, specializing in
reattach severed fingers and arms for returned migrants.
Image 5: Workers with hand injuries from Kai Si Factory (Kaisser),
Guangzhou, Guangdong Province
Nanfang City Daily, December 17, 2006.
Typical Causes of Injuries. The most frequently cited causes of
injuries were ¡°carelessness,¡± ¡°fatigue,¡± ¡°machine malfunction¡±
and ¡°lack of training.¡± Yet in work places where most new workers
do not receive any operational or safety training and merely learn
from watching senior workers operate, ¡°carelessness¡± should better
be interpreted as ¡°inexperience¡± or the same as ¡°lack of
training.¡± According to a recent report, most work injury victims
are injured within the first three months of employment. One worker
surveyed in this report was injured on the second day of his
employment! The data in this research suggest that the high injury
rate is a result of the lack of safety training and protective
measures.
Fatigue is another major cause of work-related injuries. From the
work hours survey we have known that over 95% injured workers worked
overtime, and often as many as 12 hours a day (the highest number
surveyed was 14 hours a day). It is not hard to imagine that over-
exhausted workers are more likely to doze off or make operational
mistakes, and therefore are more susceptible to work injuries.
Furthermore, as the regression test shows below, the length of work
hours and injury severity are negatively correlated, which means the
longer workers work, the more severe their injuries tend to be. It
suggests fatigue is not only related to the frequency of work injury
but also the severity, although such correlation will require
further studies and more findings to be conclusive.
Image 6: Work Hours and Injury Severity Regression Analysis
Finding: Injury = 10.1423 ¨C 0.063657 * Work hours/day
Salary Payment While During Hospitalization, Post-Treatment Plans
and Need of Legal Aid. Among 248 respondents, only 33 of them were
paid full salary during hospitalization (13%), which is required by
the law. In other words, 87% of the employers did not comply with
this section of the labor law. A total of 158 workers were only paid
base salary (normally 15-30 RMB/ US$1.9-3.8 a day). Seven workers
were not paid at all. Fifty workers had other arrangement or did not
know whether or how much they were paid. Living stipend during
hospitalization ranged between 0 and 30 RMB (US$0-3.8) per day, with
the overwhelming majority of workers received 15 RMB (US$1.9) per
day for food and other non-medical expenses.
When asked of their ¡°post-treatment plans,¡± 153 out of 247 workers
answered they would ¡°return to the factory.¡± Five workers said
they would ¡°negotiate with the employer¡± to see how to resolve the
work injury matter. Six workers were determined to ¡°file a work
injury complaint.¡± Twenty-one workers said they would ¡°quit and
find a job in another factory.¡± Another 21 workers said they would
¡°return to hometown.¡± Forty-one workers chose ¡°do not know¡± as
the answer. Except for workers who planned to ¡°negotiate with the
employer¡± or ¡°file a work injury complaint,¡± who can be
categorized as ¡°action-takers¡± and made up only 4% of the total,
all the rest workers planned to make more or less passive responses
to their injuries. Such attitudes reflect both the lack of
information and distrust migrant workers have for the legal system
and labor law and the powerless position they are at in the
employment relationship as well as in society at large.
When asked whether they need legal aid, 194 out of 246 workers
replied ¡°yes¡± (79%), while 35 workers chose ¡°not at the
moment/yes, when dispute arises,¡± and 17 workers replied ¡°no.¡±
This demonstrated that the need for legal consultation and legal aid
is broad and urgent.
Summary
The current report shows consistent findings with CLW¡¯s 2005 report
albeit with variations. The similarities include the great majority
of injured workers are migrant workers from central and inner
provinces in China. They are very young and single (with two
underage workers), and their education levels are relatively low
(16% of surveyed workers attended school beyond the legally
compulsory education). Ninety per cent of surveyed workers had zero
knowledge of labor law, while 79% of them needed legal aid. Injured
workers worked 10.7 hours a day on average and 95% workers worked
overtime regularly. Ninety per cent surveyed workers incurred finger
or hand injuries. The most comment causes of injuries provided by
workers were ¡°carelessness,¡± ¡°fatigue,¡± ¡°machine malfunction¡±
and ¡°lack of training.¡±
The variations from 2005 are 35% of surveyed workers did not have a
labor contract (as opposed to ¡°over half¡± in 2005) and 27% of them
did not have work injury insurance (as opposed to ¡°only half¡± in
2005). However, most workers do not know the terms of the contract
or the insurance. The average monthly income (including overtime) of
surveyed workers was 1,205 RMB (US$154) as opposed to 804 RMB
(US$99) in 2005, which can be explained by the recently increased
minimum wage in Guangdong Province and the higher income level in
Shenzhen than Dongguan. Still, over 85% of surveyed workers were
paid below the hourly minimum wage deducted from the legally
mandated monthly minimum wage and work hour limits.
III. CASE STUDY
The Winbo Industrial Co. Ltd. Case
Image 7: Winbo Industrial Co. Ltd. Exterior
Case Background. Guangzhou Winbo Industrial Co., Ltd. is located in
the Shenshan Industrial District, Baiyun District, Guangzhou City,
Guangdong Province. It is a domestically funded company that
specializes in developing and manufacturing fashionable writing
utensils, gifts, household products, bags, etc. Their products are
exported to the United States, Europe, Japan and other Asian
countries and regions. Besides OBM (Original Brand Manufacturing)
and ODM (Original Design Manufacturing) production, the Winbo
company also takes OEM (Original Equipment Manufacturing) orders
from domestic or international famous brands and products such as
McDonald¡¯s, Coca-Cola, Pepsi, Disney, Hello Kitty, Snoopy, Sesame
Street, Garfield, Harry Porter, Barbie Dolls, Haier, Hooligan
Rabbit, Hard Rock, Carlsberg, Grants, Tarzan, etc. The company has
more than 800 employees. Most of its products are supplied to large
retailers in China and abroad, such as Wal-Mart, Good & Abundant
(Hao You Duo) and Carrefour.
Worker H was from Hubei Province. He joined in the Winbo company in
October 2000 to work in its stamping workshop. On December 7, 2005,
8:30 a.m., unaware of H¡¯s repairing the molds on the stamping
machine, another worker started the machine and it severed half of
H¡¯s right hand. H was sent to the Guangzhou Baiyunshan Hospital for
treatment. However, his hand lost most of its functions. Although
the company paid for H¡¯s medical bills, it did not apply for work
injury certificate for H, nor did it compensate H¡¯s work injury as
required by the law. H came to CLW field staff to ask for help in
February 2006. In preparing documents to apply for the work injury
certificate, CLW staff found out that H did not have the required
¡°proof of diagnosis¡± from the hospital. When H went to the
hospital to ask for it, the hospital had given all his medical
documents to the company to hinder him from filing the work injury
complaint (hospitals do this to please their corporate clients, who
would keep sending their injured workers to the contracted
hospitals). CLW staff helped H negotiate with the hospital and file
a complaint with the District Public Health Bureau. After two
months¡¯ negotiation and urging and many trips, H finally got his
diagnosis paper in April 2006. His injury was certified as ¡°work-
related injury¡± by the Guangzhou City Baiyun District Labor and
Social Welfare Bureau.
The next step was to obtain the ¡°work injury evaluation¡± from the
Municipal Work Ability Evaluation Committee. On July 18, 2006, H¡¯s
work injury was evaluated as the eighth degree. CLW staff believed
that his injury should be the seventh degree and encouraged him to
apply for reevaluation (7th degree is more serious than 8th degree
and will receive more compensation accordingly). However, after two
rounds of reevaluation (the third one was determined by the
provincial level committee and deemed final), on November 13, 2006,
H¡¯s injury was still determined as the eighth degree and the
medical treatment termination date was recorded as March 7, 2006.
This result was final. Although it was unfortunate that H¡¯s injury
was not evaluated as the seventh degree, as it should be, H told CLW
staff that he had no regret, because he had tried his best to defend
his rights. Also since he had learned relevant laws and regulations
in the process, he would be able to help other workers in the
future.
H came to CLW staff to file his arbitration complaint after he
received his provincial work ability evaluation. According to the
Guangdong Province Work Injury Compensation Regulations (Article 23,
26, 29, 55 and 57), H is entitled to one-time compensation of 48,764
RMB ($6,252), which consists of the following:
1) One-time injury & disability compensation: 10 mo x 2585 x 60% =
15,510 RMB;
2) One-time injury & disability employment stipend: 15 mo x 2585 x
60% = 23,265 RMB;
3) One-time injury & disability medical stipend: 4 mo x 2585 x 60 %
= 6204 RMB;
4) Lost wages during medical treatment: 3 mo x 1185 = 3555 RMB;
5) Transportation expenses: 220 RMB;
6) Evaluation fee: 545 RMB;
It has been more than a year since H was injured and he has not
received a single penny of what is owed to him. While this report is
being written, H has submitted his complaint to the Baiyun District
Labor Dispute Arbitration Committee and is waiting for the
arbitration decision to be made. It may take another one to two
years for H to be awarded the lawful compensation. But even then we
do not know how much he will actually receive from the employer.
Case Analysis. H¡¯s story is very typical among injured migrant
workers. Workers do not have a labor contract, or if they do, they
do not have a copy of it nor do they know what the terms are. Their
monthly salary is subject to various deductions that sometimes
include insurance. However, workers are not clear what insurances
they have and what benefits they should receive. Once workers are
injured, their fate is completely at the hands of the employer, who
decides at will how much they will be paid during hospitalization
and for compensation. In H¡¯s case, he only received 10 RMB (US$1.3)
per day when he was hospitalized (in other cases, workers received 8
RMB (US$1) per day). Yet under the law, as has been noted, he should
receive full salary until he is discharged from the hospital. The
employer uses connections or bribery to prevent workers from getting
just compensation. In one case, the employer bribed the evaluating
doctor to rate the worker¡¯s injury as 9th degree. When the worker
applied for reevaluation, his injury was evaluated as 7th degree in
the same hospital. The employer also attempts to persuade or coerce
workers to make private settlements instead of paying the legal
compensation. One employer told an injured worker blatantly, ¡°I
would rather spend 10,000 RMB on dinner with friends, not 1,000 RMB
on your injury compensation!¡± Under these unfavorable and even
hostile circumstances, whether a worker can receive compensation or
not often depends on the employer¡¯s ¡°conscience.¡±
In the process of this research, at least four workers from the
Winbo company came to CLW staff to seek for help. However, due to
the fear of the long and difficult process, half of them chose to
settle privately with the employer.
The GP Battery International Ltd. Case
Work-related health problems include work-related injury and work-
related illness. Far more prevalent but also more difficult to
identify than work injures are chronic diseases acquired from work.
Besides the high treatment costs, victims of chronic diseases often
develop symptoms only after leaving the workplace. Together with the
high mobility of migrant workers as well as the limitation of
medical knowledge to determine causal or correlational connection
between work conditions and particular diseases, workers bear an
exceptionally high burden in work-related illness claims. In 2001,
13,218 cases of occupational diseases were reported in China, a 30%
rise from 2000.
Chemical poisoning is the most prominent occupational hazard that
constitutes 56.7% of China¡¯s total occupational disease cases.
Benzene poisoning is one of the most common diseases, particularly
found among female workers, especially in garment, shoes or suitcase
factories, which often use cheap glue with high compositions of
benzene. According to a study conducted by the Hong Kong Christian
Industrial Committee in 2005, 85% of the occupational poisoning
cases are found in industries such as electronics, printing,
footwear, plastic and rubber, wood products. The mortality rate of
occupational poisoning is 56.7% (Guangdong Province Health Ministry
statistics, 2004).
Case Background. The GP Battery case is a chemical element poisoning
case. Since its establishment under the Gold Peak Group in Hong
Kong, the GP Battery International Ltd. (GP Battery thereafter) has
rapidly expanded to become one of the world¡¯s major suppliers of
primary and rechargeable batteries. The company is one of the world¡¯
s top 10 battery manufacturers and the no. 1 battery manufacturer in
Asia outside Japan. It supplies an extensive range of battery
products to original equipment manufacturers (OEM) (including
Toshiba and HP), leading battery companies as well as consumer
retail markets under its own GP brand name. GP Battery¡¯s
production facilities are located in Hong Kong, China, Singapore,
Taiwan, and Malaysia, supported by marketing and trading offices in
Singapore, Hong Kong, Taiwan, China, South Korea, Malaysia,
Thailand, Poland, Denmark, Germany, Italy, Sweden, the Netherlands,
the UK, Canada and the US. The Group currently employs over 13,000
people worldwide and occupies a total floor area of approximately
250,000 square meters.
Image 8: Chao Ba Battery Co. Ltd.
Source: Jin Ri Shuo Fa, CCTV International
In early 2004, about 50 workers from the assembly department of the
Chao Ba Battery Factory (a subsidiary of GP Battery, located in
Huizhou, Guangdong Province) paid out of their own pocket to have a
physical examination. Most of them found above normal cadmium (Cd)
element in blood. GP Battery denied the finding and rejected
workers¡¯ request for an all-factory health examination. After
workers¡¯ collective strike and complaint, the factory arranged for
about 121 workers to have urine tests but publicly denied workers¡¯
charges. In July 2004, over 400 workers from the Xian Jin Battery
Factory (also a GP Battery subsidiary and located in Huizhou) were
found above normal Cd element in blood test. After rounds of
testing, it was confirmed by the Guangdong Provincial Occupational
Disease Prevention and Treatment Center that 177 workers were found
Cd-intoxication and two Cd-poisoning. CLW staff learned about this
case during routine work injury visitations and referred it to a
prominent work injury lawyer in Guangdong.
Cadmium was used to produce Ni-Cd batteries at GP Battery. Excessive
exposure to cadmium can cause severe lung damage, which in some
cases may even lead to death. Other health effects that can be
caused by cadmium include damage to the renal function, the central
nervous system and the immune system; diarrhea; stomach pains and
severe vomiting; bone fracture; reproductive failure and possibly
even infertility; psychological disorders and possibly DNA damage or
cancer development. Cadmium poisoning is a slow process. The
incubation period is at shortest 2-8 years and normally 15-20 years.
At present, there is no effective medicine that can remove cadmium
from human body.
The core controversies in this case are 1) the causal relationship
between contaminated work environment in the GP Battery factories
and workers¡¯ various health problems and diseases; 2) how to
distinguish the concepts of excessive cadmium consumption, cadmium
intoxication and cadmium poisoning legally; which qualifies as
occupational disease under the law; and what corresponding legal
responsibilities the employer should bear.
On the first issue, an investigation by the official Chinese Central
Television Station (CCTV) revealed that at least three young female
workers who used to work at the Chao Ba and Xian Jin factories had
died of kidney-related diseases . One of them, Fu Hongqin¡¯s disease
was discovered in the aftermath of Cd-poisoning scare and hence her
medical records were relatively well documented (she died in January
2006). In other cases, because migrant workers usually return to
hometowns upon becoming sick, where they cannot receive quality
treatment, it is very difficult to keep track of their cases and
they often lose the opportunity to receive legal protection and
compensation.
On the second issue, although a series of work injury and
occupational disease laws are in place in China, they are far from
comprehensive and easily interpretable. In the court opinion on
appeal in the first class action filed by workers in December 2004,
the judge states that excessive cadmium consumption has not reached
the level recognized as cadmium intoxication or poisoning under the
work injury laws. Hence, it cannot be deemed occupational disease.
Accordingly, victims cannot receive work injury treatment. The court
also denied the request for advance payment for future medical check-
ups and related transportation fees. Furthermore, the court denied
the plaintiffs¡¯ compensation request for their severe emotional
distress as a result of the cadmium poisoning scare, on the basis
that such claims are not clearly stipulated in the law. The worker
plaintiffs lost the case in both the trial court and the appellant
court.
One defense raised by the battery factory was that it has paid
workers one-time compensation and terminated its employment
relationship with them in 2004. Therefore, the defendant has
fulfilled its legal responsibilities except for future medical
examination and treatment costs. This has to backtrack to 2004, when
the Huizhou municipal government, GP Battery and the provincial
Occupational Disease Prevention and Treatment Center jointly held a
press conference on the GP Battery case. On that conference, the
then vice mayor of the Huizhou City, Xu Guang, said the government
would monitor the company to be responsible to workers¡¯ treatment
no matter how many years it would take. One of the four agreements
reached between the local government and GP Battery was that the
factory shall not terminate labor contracts with workers, but
workers may opt to do so in exchange for appropriate amount of
compensation. GP Battery announced that this offer could be
withdrawn unilaterally by the company and workers must decide within
15 days. Most workers were afraid to return to the factory due to
the fear of further damage of their health at that time. They were
also afraid if they did not accept the offer, they might end up not
receiving any compensation. Therefore, most of them chose to accept
the offer.
Female worker Tan Ling incurred cadmium intoxication and a 6th
degree arm injury from her job at the Chao Ba factory. According to
the labor law, the employer shall not be discharged from the labor
contract in such a case even if the employee consents. In other
words, the employer¡¯s legal responsibilities are non-waivable in
Tan¡¯s case. In order to make sure of this, Tan even signed a
private agreement with the factory that states, ¡°no one shall
terminate the labor contract between the two parties prior to the
recovery of (Tan¡¯s) arm injury.¡± Tan thought she was protected by
three safeguards: the labor law, a governmental agreement and a
private agreement. However, in May 2006, when her kidney illness
became serious, the Chao Ba factory unilaterally terminated the
employment with the excuse of ¡°absence from work with no cause.¡±
Tan filed for labor arbitration, but it ruled that the termination
of contract was effective. Tan felt that even legal aid counselors
are reluctant to provide her assistance now, because the GP Battery
case is such a tough one. Although the Chao Ba factory deposited
50,000 RMB ($6,410) into her bank account, Tan did not dare to cash
any of the money for lack of explanation of its purpose. Tan feared
cashing the deposit would affect her future compensation. Other
Chao Ba workers encountered difficulty in re-employment, because
employers do not want to hire employees involved in labor lawsuits
and they are worried about these workers¡¯ health status. In
November 2006, 146 female workers filed another class action lawsuit
against GP Battery with the help of a legal expert, Professor Lu
Ying at the Zhongshan University.
Image 9: Female workers in the lawsuit against GP Battery
Source: Chongqing Morning Daily, March 19, 2005
Case Analysis. One of the core controversies in the latest
litigation against GP Battery is who should arrange the annual
medical check-up for infected workers. Workers do not trust
examinations arranged by the factory, because the results
contradicted their self-paid examinations and were normal or even
better than normal. They suspect that the factory manipulated the
results, while the factory claiming that workers¡¯ suspicion was
unreasonable and they were intentionally uncooperative. As Professor
Lu said in an interview, ¡°The law has granted workers such rights
(right to annual medical check-ups). Yet they have to obtain them
through litigation. Even if we win the case, I will not feel a sense
of achievement. I think in our society, if employers can comply with
the law and workers can raise their legal awareness, we will have a
lot fewer such lawsuits.¡±
In regard of the substance of the law, GP Battery case raised
several statutory interpretation and legislative issues. First, the
court rejected workers¡¯ compensation claim partly because most
workers¡¯ cadmium intoxication level did not reach the state
standard for cadmium poisoning. However, medical studies show that
cadmium intoxication itself can damage human body and cause various
diseases. This has been noted by medical experts and is supported by
the symptoms some of the workers already developed. Moreover,
cadmium poisoning can have 10-25 years of incubation period. If the
case cannot be established now and workers are dismissed from the
factory, how will it be possible for workers to litigate again if
that they develop related diseases in 10 years from now, leave alone
the likely bar by statutory limitations? If it is not clearly stated
in the law and the exact future medical treatment costs are unknown
now, why cannot the court rely on expert opinion and estimation
based on past cases and probability analysis to grant worker victims
a reasonable amount of compensation? In addition, in order to set a
precedent for similar cases in the future, the government should
establish a monitoring and research committee, which will conduct a
comprehensive study of the GP Battery case and make recommendations
to relevant government agencies and the legislation.
Secondly, the court ruled that future medical costs cannot be paid
in advance. However, the defendant factory is a high-risk enterprise
in its business nature. It may go bankrupt or merge with companies
at any time. It will be unreasonable to have plaintiffs bear such
business risks with the defendant. The court should require the
factory to set up an escrow account or a trust fund for infected
workers, so that their future medical expenses can be secured.
Thirdly, compensation for emotional distress has not been recognized
in work injury cases in Chinese law (there has been no precedents).
However, in cases like this one, workers will face unusual
psychological pressure for as long as 25 years, as well as the fear
of damage to their future generation. The level of emotional
distress is far beyond normal work injury cases and the victims may
very likely need necessary treatment or counseling. Interestingly
enough, the court did not say that such compensation is not
recognized by the law, but the ¡°damage¡± is unclear.¡± If that is
the case, it should arrange psychiatric evaluation to determine the
necessity and amount of financial compensation for workers.
IV. DISCUSSION: PROBLEMS, CAUSES AND RECOMMENDATIONS
Typical Violations
From the work injury cases CLW collected, typical noncompliances by
employers are:
i. No or partial salary payment when injured workers are
hospitalized;
ii. Withholding workers¡¯ medical records with the assistance
of the hospital;
iii. Denial of employment relationship with injured workers;
iv. No work injury insurance or partial insurance (by insuring
a small number of workers in the factory and having uninsured
injured workers file insurance complaints under insured uninjured
workers¡¯ names);
v. Settling with workers by private agreement instead of full
compensation under the law (that allows employers to pay
significantly less);
vi. Other intentional delay of the arbitration or payment
advancement process;
vii. Unilateral termination of employment after workers are
injured.
Socioeconomic Factors Contributing to the Violations
The overemphasis on economic growth further twists the unbalanced
power relationship between the government, the employer and migrant
workers. In order to keep investors and capital inflow and to
enhance general revenue income, which is not only an important
fiscal source but also a key evaluation criterion for political
performance by the higher and central authorities, local governments
seldom put migrant workers¡¯ interest before investors¡¯. To them,
enforcing labor laws and regulations will increase labor cost and
deter future investment, and will accordingly hurt their own
political interest. Therefore, they would rather keep one eye closed
for unlawful employers. One the other hand, profit-driven employers
try every way they can to maximize the output/input ratio,
regardless if workers¡¯ safety and welfare are being threatened or
laws are broken. As early as 1996, China Woman¡¯s News reported that
private and foreign-invested shoe factories in Putian, Fujian
Province, earned billions of RMB since the 1980s from female migrant
workers¡¯ labor. Yet they were unwilling to spend even 1% of their
profit to improve the working conditions that had destroyed
thousands of workers¡¯ health. Migrant workers, deprived of
protection from an impartial judiciary system and local government,
without a truly representative and functional labor union, caught
between urban and rural lives, are utterly powerless and vulnerable.
All of these contribute to migrant workers¡¯ work injury plague.
Action and Policy Recommendations
Educating Workers. First and foremost, workers must know of what
rights they are entitled to. In regard of what information will be
most helpful to workers, CLW staff and researcher find that they
should be informed of the following:
i. What rights and compensation injured workers are entitled
to under the law;
ii. What documentation they need in order to file a work injury
complaint;
iii. Where they can receive legal consultation free of charge or
retain lawyers at reasonable cost:
iv. How to negotiate with the employer in case the employer
tries to evade the legal responsibilities;
v. What are their legal options;
vi. How other workers in similar situations successfully
protected their lawful rights.
The Chinese labor law in fact provides fairly comprehensive
protections for workers. For example, under the Occupational
Sanitary Prevention and Treatment Law, employers shall provide
workers with work environment and conditions that meet the national
occupational sanitary standards and requirements; purchase work
injury social insurance for workers and truthfully report
occupational disease threats, accidents and test results to relevant
sanitation administrative agencies; provide effective occupational
disease prevention facilities and safety protection gears to
workers, etc. Workers are entitled to the right to occupational
sanitary education and training; the right to occupational health
examination, diagnosis, treatment and recovery service; the right to
know work conditions and safety preventive measures; the right to
work in a healthy environment; the right to report and litigate; the
right to refuse to work in violation of safety regulations; the
right to democratic management of occupational sanitation related
affairs; and the right to compensation. Workers must know their
rights and the employer¡¯s responsibilities under the law, so that
they can protect themselves through legal channels.
Government Supervision and Law Enforcement. Due to the low frequency
and effectiveness of inspection, factory owners tend to bet on the
chance whether their violations will be caught. As a result, high
occurrence of work injuries is not only found in private
enterprises, township enterprises, private mines, but also joint
ventures. These work places are often contaminated by powder dust,
poisonous chemicals, noise, heat, radiation and other risk factors,
which are direct causes to work-related accidents. Government
agencies must strengthen factory inspections and enforce labor
regulations. Because China does not have an independence judiciary
system, law enforcement is often inseparable from government
entities. In order to secure foreign investment, local government
administrators have strong incentives to favor factory owners over
workers. The fundamental rectification is to effectuate the real
¡°rule of law¡±, so that law enforcement will be able to hold
employers accountable for their violations, as well as corrupt
government officials. Media and public pressure can also force
office holders to give higher priority to key cases, as we have seen
in the GP Battery case. Nevertheless, the government cannot be the
direct responsibility bearer (which ought be the corporate
employer). It can at most monitor and pressure companies to live up
to their legal and moral responsibilities.
The ACFTU (All-China Federation of Trade Unions), the official and
only lawful trade union in China, should step up its role of
defending workers¡¯ rights. In a recent press conference, Liu
Jichen, the Legal Work Department Director of ACFTU, acknowledged
that workers in many places often cannot afford to pay the high
lawsuit costs and have to wait for a very long period for a verdict.
Liu said that by the end of 2005 trade unions at various levels had
added 866 legal aid institutions to the existing 2,990 to serve the
workers. However, divided by 150 million migrant workers, each
legal aid institution will serve 38,900 workers. Needless to say,
this is far from enough. Although it is unclear how the ACFTU will
achieve its goal to ¡°reduce workers¡¯ legal expenses and shorten
the litigation period,¡± expanding its legal education and aid
programs and funding special programs for migrant workers seem to be
the right place to start.
Legislative Reform. The current legal procedure for filing a work
injury claim is complicated and circuitous. Together with the large
amount of fees required, they hinder workers from receiving adequate
compensation. Workers often settle for less because they are
pressured by employers or because they simply cannot afford the
legal fees or up to two or three years of filing process to pursue
their cases. On top of that, the amount of compensation workers
receive can barely meet workers¡¯ short-term and long-term financial
needs for recovery and living stipend. According to state-run media,
through labor arbitration workers usually only receive work injury
compensation 20,000-30,000 RMB ($2,500-3,700). Private settlement
leads to even less compensation, often several hundreds up to 5,000
RMB ($100-640) for a severed finger. Such meager amounts are far
from just compensation and cannot guarantee injured workers¡¯ basic
living needs. Therefore, a reevaluation of the compensation
calculation method should be conducted. Alternatively, the
legislation can propose and ratify an adjustment based on the
constantly increasing living expenses and workers¡¯ short-term and
long-term actual needs. Moreover, the legislation should enact a
more accessible and less expensive filing procedure by which injured
workers can sue unsafe employers and receive just compensation.
These measures will not only uphold justice, but also effectively
deter employers from disregarding workers¡¯ safety for fear of large
compensation suits.
Image 10: The Long March: Work Injury Complaint Filing Procedure
Illustration
(Reference: Work Injury Insurance: Core Regulations and Cases)
Pressuring and Engaging Multinational Corporations. Some companies
attempt to shift responsibilities by contributing problems to
¡°historical reasons¡± or locality. For example, in the GP Battery
case, the factory claimed that it only realized the threat of
cadmium in recent years and workers should also bear partial
responsibilities for lack of sanitary habits on their part. Clearly,
these excuses do not stand up. Cadmium was listed among the
¡°severely poisonous and harmful chemicals involved in production¡±
provided by PRC¡¯s Ministry of Chemical Industry as early as 1981.
The Chao Ba factory was established in 1994 and GP Battery has been
in business for decades. ¡°Cadmium poisoning¡± may be an unfamiliar
term to the general public, but it is not new at all to battery
producers. The factory claimed that workers did not pay enough
attention to sanitation and safety protection themselves. However,
the factory had not provided any production safety training until
2001, while most infected workers had worked at Chao Ba for 7-8
years or even a decade. When asked why cadmium intoxication was not
detected earlier, the factory spokesperson admitted that factory
organized medical examinations only focused on infectious diseases,
hepatitis and such in the past. There had been no cadmium
intoxication examination.
Given the advantages they have in global production and trade,
multinational corporations should accordingly bear greater instead
of less responsibility in protecting workers¡¯ rights. They have the
information advantage that they know better about safety hazards
involved in production. They have the financial advantage that they
can invest in research to most effectively prevent work-related
injuries. They also have the management advantage that they can
implement such measures on the production floor and provide workers
relevant training. When injuries occur, multinational corporations
must not shift their responsibilities to the local subsidiary or
supplying factories. Brand manufacturers still bear moral if not
legal obligations (contractual relationship vs. ownership) to ensure
workers¡¯ basic rights are guaranteed regardless of their
nationalities and geographic locations.
Multinational corporations should make it public where their
products are manufactured and assembled, which includes not only the
¡°first-tier¡± suppliers (factories that primarily produce for such
brands) but also the second and third-tier suppliers (factories that
take smaller production orders from such brands or their middle-
men). In addition to direct monitoring and training, they should
also work with independent third-party NGOs or monitoring groups to
conduct unannounced factory inspections and confidential worker
interviews in order to defeat ¡°double booking¡± and other
falsification tricks supplying factories often employ. Employing
companies must insure workers and provide injured workers with one-
time compensation under relevant labor laws and regulations.
Supporting and Empowering Local NGOs. Local NGOs have first-hand
knowledge of work conditions on the factory floor and extensive
experience in working with workers. They conduct investigations,
provide legal aid and advocate for workers¡¯ rights. However, in
China grassroots NGOs¡¯ activities and funding are strictly
monitored and restricted. Most of them have to struggle between
maintaining normal operation and organizational survival.
Governments at different levels ought to understand that nonprofits
are a mechanism to utilize civil resources to adjust societal
relationships, ease social tension, help the disadvantaged and serve
equity, equality and justice. The civic sector is an essential
component of a ¡°harmonious society,¡± which President Hu Jintao
called on all Chinese to build together. Hence, the government
should not only give labor NGOs room to develop, but also encourage
them to become more active in the effort of improving work
conditions and protecting labor rights.
Labor NGOs can also provide a channel for workers to voice their
opinions and demands. In March 2006, a Shenzhen labor NGO CLW has
been working with organized a public petition to call for the
legislation to reform the current labor arbitration law, which
charges a filing fee that keeps most migrant workers out of the door
(500 RMB: $64). Although the petition did not receive immediate
result, it was a good experiment to educate workers to influence law-
making through collective lobbying and self-empowerment.
Image 11: Workers Signing Up for the Public Petition
Shenzhen, Guangdong Province, 2006
V. CONCLUSION
The findings in this report are stunning. Every year tens of
thousands of workers in the Pearl River Delta region suffer from
work injures due to the lack of safety inspection, poor operational
training and chronic fatigue, which could have been avoided if only
labor laws are respected and enforced. According to a study on labor
relations in the non-state-owned sector in Guangdong Province
conducted by the Provincial Committee of CPPCC (Chinese People's
Political and Consultative Conference), in 2005 of all the labor
dispute cases occurred in the non-state-owned sector, 40% were over
delay or docking of wage payment; 26% were over unlawful labor
contract or breach of contract (by the employer); 19% were over
excessive overtime. Companies, in order to lower production cost,
often misreport number of employees and wage standard. Most of the
workers on the production line do not have social insurances. The
above report reveals that of over 22 million migrant workers in
Guangdong Province, only 22% had pension; 14% had medical insurance;
15% had unemployment insurance; 27% had work injury insurance; and
1.6% had reproductive health insurance by the first quarter of
2005. At the government level, officials must strengthen factory
inspection and urge employers to comply with the labor law, as well
as providing alternative legal and health services for migrant
workers.
Even though the ACFTU is the official trade union in China, it
encountered resistance from many private and foreign companies and
could not reach to the majority of migrant workers. According to the
CPPCC report, in Guangdong Province, only 23% of the non-state-owned
enterprises had labor unions. The central government set the goal of
unionizing 60% of the foreign and joint ventures in the near future.
In addition, the Guangdong Province aims at having labor unions in
80% of all enterprises. If these goals can be achieved, the ACFTU
will become a much stronger player in the labor relations game. In
the new 2001 Trade Union Law, Articles 23 to 26 significantly
increased the ACFTU¡¯s powers with respect to occupational safety
and health, with a mandatory role in investigating accidents and
infringements on workers¡¯ other rights. With the new power, the
ACFTU could live up to being a guardian of workers¡¯ rights,
conditioned that it can transform itself institutionally and truly
stand for workers, and not the investor or the government.
In order to improve work conditions and improve occupational safety
and health, legislative and administrative efforts are not enough.
Another crucial party and the root of the problem is the corporate
employer. Most of the manufacturing factories in Guangdong Province
are for export. At the same time, most of the multinational
corporations who place orders in China vow to comply with
international industry labor standards and/or have their own set of
code of conduct. It is no excuse that local labor laws or even their
own code of conduct do not bind them here because they do not have
ownership or substantial production in certain factories. Even in
those so-called ¡°second¡± and ¡°third¡± tier factories, they are
also responsible of providing a decent working and living
environment for workers in this factory, because these workers
contribute to their brand and profits through hard work too and they
are equal beings under the law as well as universal human rights
principles. Only when the government, the labor union and the
employer work together, can the work injury epidemic be eradicated
and workers¡¯ rights respected.
