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51–190 PDF 2009

THE FINANCIAL CRISIS AND THE CHANGING ROLE 

OF WORKERS IN CHINA 

ROUNDTABLE 

BEFORE THE

CONGRESSIONAL-EXECUTIVE 

COMMISSION ON CHINA 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JUNE 19, 2009 

Printed for the use of the Congressional-Executive Commission on China 

( 

Available via the World Wide Web: http://www.cecc.gov 

(II) 

CO N T E N T S 

Page 

Opening statement of Charlotte Oldham-Moore, Staff Director, CongressionalExecutive Commission on China ........................................................................ 1 

Grob, Douglas, Cochairman’s Senior Staff Member, Congressional-Executive 

Commission on China .......................................................................................... 1 

Chang, Leslie T., author of ‘‘Factory Girls’’ (Spiegel & Grau, 2008); former 

China correspondent, The Wall Street Journal ................................................. 3 

Munro, Robin, Research Director, China Labour Bulletin ................................... 6 

Ennis, Erin, Vice President, U.S.-China Business Council .................................. 9 

Brown, Jr., Earl V., Labor and Employment Law Counsel and China Program 

Director, Solidarity Center, AFL–CIO ................................................................ 12 

APPENDIX 

PREPARED STATEMENT

Brown, Jr., Earl V ................................................................................................... 30 

(1) 

THE FINANCIAL CRISIS AND THE CHANGING 

ROLE OF WORKERS IN CHINA 

FRIDAY, JUNE 19, 2009 

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA, Washington, DC. 

The roundtable was convened, pursuant to notice, at 10:01 a.m., 

in room B–318, Rayburn House Office Building, Charlotte OldhamMoore, Staff Director, presiding. 

Also present: Douglas Grob, Cochairman’s Senior Staff Member, 

Anna Brettell, and Wenchi Yu Perkins. 

OPENING STATEMENT OF CHARLOTTE OLDHAM-MOORE, 

STAFF DIRECTOR, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA 

Ms. OLDHAM-MOORE. Good morning. My name is Charlotte 

Oldham-Moore and I’m Staff Director of the Congressional-Executive Commission on China. We’ve been holding most of our events 

on the Senate side lately, so it is kind of nice to be over in the 

House today. 

I’m going to turn it over to Douglas Grob, my colleague, who will 

take it from here. 

STATEMENT OF DOUGLAS GROB, COCHAIRMAN’S SENIOR 

STAFF MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION 

ON CHINA 

Mr. GROB. Well, on behalf of Senator Byron Dorgan, Chairman 

of the Congressional-Executive Commission on China and Representative Sandy Levin, Cochairman of the Commission, I’d like 

to thank you very much for attending this morning’s roundtable. 

This morning’s roundtable topic is ‘‘The Financial Crisis and the 

Changing Role of Workers in China.’’ My colleague and Staff Director of the Commission, Charlotte Oldham-Moore, will give brief introductions and then turn it over to our panelists, who will give 

brief oral remarks, and then we will, of course, turn the floor over 

to you in the audience for questions. 

But, first, let me just give a brief overview of the questions that 

we’re going to be looking at today. Our distinguished panel will discuss the impact of the current financial crisis not only on the rights 

of workers in China, but on the lives of workers in China. This presents a very good opportunity for us to examine the changing role 

that workers, including migrant workers, are playing in shaping 

the future of economic, legal, and political reform in China. 

2 

It is not uncommon these days to examine the financial crisis by 

focusing attention on the response of government and business to 

changing economic conditions. However, workers in China, over 

170 million of whom are migrant workers, also have responded, 

and their response has been structured somewhat significantly by 

three major legislative developments that took effect in China last 

year: the Labor Contract Law, the Employment Promotion Law, 

and the Law on Labor Dispute Mediation and Arbitration, all of 

which became effective in 2008. These legislative developments, in 

part, were the product of ferment from below, and reflect growing 

contestation of labor rights in China. So today we ask whether the 

contestation of labor rights in China now creates some space for 

civil society, space for the realization of the aspirations of workers, 

in a manner somewhat different from the past. We ask whether, 

under current conditions, the role that workers, including migrant 

workers, play in shaping the future of economic, legal, and political 

reform in China is undergoing, or is likely to undergo, fundamental 

change. 

The question is an important one because, as this Commission 

reported last year, workers in China still are not guaranteed, either in law or in practice, full worker rights in accordance with 

international standards. China’s laws, regulations, and governing 

practices deny workers fundamental rights, including, but not limited to, the right to organize into independent unions. So, current 

developments prompt us to ask again, does this description still 

serve as an accurate description of conditions in China today, and 

if so, what are the prospects for change, if any, on the horizon? If 

not, in what ways does it not serve as an accurate description? 

Now I’d like to turn the floor over to Charlotte Oldham-Moore to 

introduce our distinguished panelists. 

Ms. OLDHAM-MOORE. Hi. We have an exceptional group of people 

here today and will move quickly through the introductions so we 

can have as much time as possible for your questions after the panelists present. 

Leslie T. Chang lived in China for a decade as a correspondent 

for The Wall Street Journal. Her book, ‘‘Factory Girls—From Village to City in a Changing China’’ was published last October by 

Spiegel & Grau, an imprint of Random House, and was named one 

of the Notable Books of the Year by the New York Times. She is 

a graduate of Harvard University and has worked as a journalist 

in the Czech Republic, Hong Kong, and Taiwan. She now lives in 

Colorado, so we’re quite fortunate to have her here today. 

Robin Munro is the research director for the China Labour Bulletin. He was recognized internationally for his groundbreaking 

book, ‘‘Dangerous Minds,’’ which was a study of the political misuse 

of psychiatry in China. Dr. Munro has published numerous other 

books and articles on human rights and rule of law in China. From 

1989 to 1998, he served as the principal China researcher for 

Human Rights Watch, and before that, a China researcher for 

Amnesty International in London. He is currently also a research 

associate at the Law Department of London University’s School of 

Oriental and African Studies. He lives in Hong Kong, so we are 

very fortunate to have him today; we’ve got people from all points 

of the compass. 

3 

Erin Ennis is vice president of the U.S.-China Business Council 

[USCBC] and has served there since May 2005. In that position 

she directs USCBC’s government affairs and advocacy work for 

member companies and overseas USCBC’s business advisory services. Prior to joining USCBC, Ms. Ennis worked for Kissinger 

McLarty Associates, the Office of the U.S. Trade Representative, 

and former U.S. Senator John Breaux. She’s a native of Louisiana 

and graduated from Mt. Holyoke and Catholic University. 

Earl Brown, to my far right, is employment law counsel for the 

American Center for International Labor Solidarity and has represented trade unions and employees in U.S. labor law and civil 

litigation since 1976. He serves as general counsel to the International Brotherhood of Teamsters, and was previously associate 

general counsel to the United Mine Workers. Brown has also 

brought cases before international tribunals under international 

labor rights instruments such as the North American Free Trade 

Agreement [NAFTA]. He’s a graduate of Yale and University of 

Virginia Law School. 

It’s a great pleasure to have all of you here with us today. I’m 

going to begin with Leslie. If you could please begin your opening 

statement, that would be great. Thank you. 

STATEMENT OF LESLIE T. CHANG, AUTHOR OF ‘‘FACTORY 

GIRLS’’ (SPIEGEL & GRAU, 2008); FORMER CHINA CORRESPONDENT, THE WALL STREET JOURNAL 

Ms. CHANG. Hi. Thank you very much for having me. I thought 

I would start off talking a bit about the research I’ve done for my 

book, ‘‘Factory Girls,’’ and some of the discoveries I’ve made that 

have bearing on how migrants are responding to the economic 

slowdown. 

I first visited Dongguan—which is in Guangdong Province—in 

early 2004 as a reporter for The Wall Street Journal. At that time, 

most of the major foreign papers had done articles, or whole series, 

about the situation of migrant workers. They generally tended to 

focus on the abuses and the violations of the system and some truly 

horrible experiences that workers had undergone. 

I became curious about what migration might feel like from a migrant’s own point of view, how it felt to come out as a teenager 

from a small village to the city, to learn how to make friends, to 

learn how to find a job, to date people from different provinces, to 

cope with their parents, kind of a more personal experience of migration than I felt had been covered to date. In terms of my approach, I tried to be as open-minded as possible, to not go in with 

any preconceptions and to just hang around and see what developed. 

One thing I was very clear I did not want to do was to target 

newsmakers. When you’re a reporter you often hear about a case 

of a terrible factory or some terrible things a migrant has gone 

through, either from the local Chinese press or from an activist or 

someone involved in that field, and then you go and find that person or that factory and you tell their story. What I wanted to do 

was just find ordinary people who were not headline makers, but 

might have interesting stories just the same. 

4 

Another thing I tried not to do was to ask too many questions, 

which might seem strange as a reporter, but I felt like often we 

bring our own ideas into what we think the migrants are thinking. 

For example, if you ask a migrant: Do you dislike the government? 

They might say, yes, I hate the government, the officials are awful. 

But if you spend time with a migrant and they almost never talk 

about the government, I think that says something very telling 

about what their priorities are. 

So what I tried to do was just hang around and be with the migrants as they spent time with their friends or hosted a sister visiting for the weekend. I even went on a migrant blind date with 

11 people, which I think says something about how hard it is to 

get a little privacy in China. I also followed what social scientists 

might call a longitudinal approach, which was to spend a long period of time observing changes in their lives before I wrote anything. In this case, I spent about two years following two young 

women. 

My overall conclusion was that migrants were very misunderstood and they were often portrayed as pawns, or victims, or as 

sources of social unrest. I felt, in general, all of these things were 

not true. 

I feel like the language that is used to describe migrants contributes to this misperception. For example, in the old days in China 

they referred to migrants as mangliu, which means ‘‘blind flow,’’ 

which tells you what the urban stereotype of migrants was, ignorant and aimless, and potentially dangerous. These days the 

phrase liudong renkou, which means ‘‘floating population,’’ as many 

of you know, and even the English phrase, ‘‘migrant,’’ I think still 

suggest a sense of aimlessness and wandering that I don’t think 

really reflects how the migrants see their own lives. 

The migrants I knew were very resourceful and resilient and 

very focused on climbing up the ladder and improving their own 

lives. And while migration is definitely a major hardship for 

them—many of the migrants said to me, coming to the city is the 

hardest thing I’ve ever done—at the same time, they felt very 

proud of what they accomplished, and also saw migration as an opportunity to improve their lives. 

Just quickly, I will talk about a few qualities of migrants that 

I thought were especially striking that has some bearing on how 

they’re coping with the current economic slowdown. One was just 

how mobile they were and how comfortable they were with this extreme mobility. Min, one of the two young women I write about in 

my book, held five jobs in two years. This was pretty standard. 

It amazed me that she often quit a job for the flimsiest of reasons. One time she quit a job because she hated her boss. Another 

time she wanted to break up with her boyfriend who worked in a 

factory, but she didn’t know how to tell him so she just decided to 

leave and figured he would find out that way. 

I think the point is that being laid off, being between jobs is 

something that migrants are very accustomed to. I mean, it’s not 

like they like it, but that everyone they know has gone through it. 

They have gone through it. Being temporarily laid off or finding another job that’s not that great and moving up again is part of their 

5 

experience. It’s not so much associated with shame and fear as we 

might expect. 

Another thing that struck me about the migrants was just how 

self-reliant they were. That kind of became a point of pride. You’d 

often meet people who said, I’ve done all this by myself, I never got 

help from my family or my friends. That’s how they saw their life: 

I’m going to make it in the city, and it’s up to me and no one is 

really going to help me. In the same way, I don’t think they expect 

government help. I don’t think they blame the government in general when things go wrong. 

In this sense I feel that they’re quite different from the earlier 

generation of workers at state-owned enterprises [SOEs] who definitely felt like they had a contract with the government. They 

would work for this enterprise for their whole life, and the enterprise, in return, would give them benefits. I think when this contract was broken, mostly during the 1990s, a lot of these workers 

were angry and felt very betrayed. But I feel like the migrants are 

quite different. They come from rural China. The government has 

never really given them anything. They don’t have any expectations on that front. 

Finally, another thing was just how apolitical the migrants were. 

I mentioned that in hanging out with these young women, that politics and government almost never came up. I think, in general, 

migrants are just very pragmatic and they don’t really see the government as helping them, so they don’t really want to spend much 

time thinking about it. 

There is an incident in my book involving the young woman, 

Min, that I wrote about. We were having lunch with a couple of 

older people from her factory and talking about growing up under 

Mao in the 1970s and how hard it was. She turned to me and she 

said, ‘‘Who is Mao Zedong, now? I don’t even know.’’ And I said, 

‘‘Hu Jintao.’’ And she said, ‘‘Oh, I thought it was Jiang Zemin.’’ I 

said, ‘‘No, he’s already retired.’’ She said, ‘‘Oh, I thought Jiang 

Zemin was dead.’’[Laughter]. 

And then she just said, ‘‘These people are very far away from 

me,’’ and I think that really captured how, generally, for the migrants the government is a very abstract thing. 

I think when we talk about how Chinese workers are responding 

to the global economic crisis all these qualities come into play. 

Dongguan is definitely very hard hit; a lot of factories have closed 

or fired workers or cut their salaries. But I think workers are adjusting to hardship and making do with very little, as they always 

have. 

My impression from talking to migrants who are still there, my 

friends there, is that some migrants have gone home and are holding on to odd jobs close to home until the climate improves. Some 

others went back for the lunar year and then came back out again 

to try their luck with new jobs. They definitely tell me they feel the 

difference on the streets. There are a lot more people wandering 

around looking for work, and there’s a lot more petty crime and 

people try to stay home if they can. 

The women I wrote about specifically are doing pretty well. 

Chunming, the older woman I wrote about, just took a job at a synthetic leather factory, which she feels is more stable, and she’s 

6 

going to hang out there until things get better. Min, the other 

woman I wrote about, recently took a 15-percent pay cut from her 

factory, but also signed a two-year contract. 

I think her general sense is that short-term there will be some 

pain, but long-term her prospects are still good. So, in general I 

feel that workers have played a huge role in China’s economic reform and will continue to do so, but I don’t see them playing an 

equivalent role on the political front at this point. 

Thank you. 

Ms. OLDHAM-MOORE. Thank you, Leslie. 

Robin Munro. 

STATEMENT OF ROBIN MUNRO, RESEARCH DIRECTOR, CHINA 

LABOUR BULLETIN 

Mr. MUNRO. Thanks, Charlotte. It’s great to be here. Thank you 

all for coming, and thanks, Leslie. I actually totally agree with 

something that Leslie just said, or an idea she developed, about 

China’s migrant workers—I think she said two things, really. One, 

is that they are very self-reliant, and another is that they don’t 

blame the government for things that happen to them. I’d like to 

kind of try to develop some of the implications of those two observations, because I think they’re very important. 

I think it’s so true that Chinese migrant workers have a very different life experience and background from traditional urban workers. The urban workers were employed by the state for decades, 

had jobs for life, and when they lost all that their reaction was one 

of dismay, obviously, but also of going to the government to seek 

help: you owe us, come and fix the problem. So they’re in a sort 

of supplicant position. 

But when migrant workers, as happens so much nowadays, of 

course, with the economic miracle which has been built on their toil 

and sweat, when they encounter abuses—such as not being paid, 

getting beaten by factory security staff, or laid off with no compensation—they don’t go and blame the government. They know 

who the culprits are: it’s the employers. 

Now, there are very important implications here for a theme I 

want to develop, which is that China now has an emergent labor 

movement. It’s not the same as 10 years ago, or even 5 years ago, 

when you just had isolated incidents of worker protests. Now workers—mostly migrant workers—are on strike in cities around the 

country on almost a daily basis. They’re protesting, they’re standing up for themselves. They’re not passive, they’re very assertive. 

But they don’t couch their demands in a political way. 

I think it’s awfully important for the labor movement in China 

that this should be so, because the greatest fear of the Chinese authorities, I think, where workers’ issues are concerned, is that if 

they’re not terribly careful, an independent labor movement along 

the lines of Polish Solidarity will emerge. That fear, I think, has 

governed a lot of government policy in this whole area for decades 

now. It explains why worker activists were so ruthlessly persecuted 

for many years after the start of the reform and the opening period. 

I think the key difference now is that when there are labor protests, they are not between the workers and the government. I 

7 

mean, in Poland, the economy was all state-owned, so when the 

Gdansk shipyard workers went on strike in 1980 under Lech 

Walesa, who were they targeting their demands and their complaints at? It was the government. So from the outset, the Polish 

labor movement took on a political cast. But that isn’t the case in 

China, where worker protests are mainly happening in private enterprises, and it doesn’t need to be. This is very important because 

when migrant workers have problems they blame the employer, 

who is a private actor. It’s all happening inside the civil society 

sphere. 

This means that the government, if it is enlightened, can stand 

above the labor relations fray and do what government should do, 

and what in our Western societies we’re familiar with, which is to 

play a constructive facilitating role and provide the contesting parties—the workers and employers—with appropriate, effective channels for resolving their disputes, through arbitration committees, 

complaint mechanisms, and courts that are responsive to workers’ 

demands and complaints. The government comes out looking good. 

It’s not the bad guy. 

So again, referring back to the two points Leslie mentioned: first, 

migrant workers are not passive, they’re very self-reliant and selfassertive. Probably no official in the countryside has ever done anything for them, or their families, in their entire lives. More often, 

they’re the target of depredations by corrupt local officials. That’s 

been their experience with officialdom, so they stay away from it, 

and away from politics. And, second, unlike many former SOE 

workers, they don’t blame the government for their workplace problems, they blame the real authors of their misfortune: the private 

employers. 

These two factors give a strong basis for hope that the Chinese 

labor movement—which as I suggested is now emerging in a spontaneous, unorganized, uncoordinated way for sure, but it’s nonetheless a de facto movement because it’s so widespread—will develop 

in a healthy direction and one that’s actually acceptable to, if not 

welcomed by, the government. It’s something the authorities can 

maybe live with, and I think this perception is beginning to sift 

through at quite senior levels. 

Next, Doug talked about the great progress that was made in the 

labor rights field in 2008, with the passage of three landmark labor 

laws in one year: the Labor Contract Law, the Employment Promotion Law, and the Law on Arbitration and Mediation of Labor 

Disputes, all of which did strengthen workers’ rights. These laws 

weren’t perfect, there’s a lot still to be done, but they all raised the 

bar for protection of workers’ rights. But what’s crucial to note, in 

my view, is that these new laws were essentially a concession by 

the government, a positive response to the rising labor unrest and 

growing workers’ voice in China today. 

Also, last year we saw an astounding development, which was 

that official circles at quite senior levels, including within the AllChina Federation of Trade Unions [ACFTU]—which of course is 

China’s sole legally permitted union, but until now it has shown 

very few signs of life in terms of actually protecting workers’ rights, 

especially migrant workers—the ACFTU came out openly in sevVerDate Nov 24 2008 14:49 Jan 06, 2010 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 U:\DOCS\51190.TXT DEIDRE
8 

eral parts of the country saying, we want to try out real collective 

bargaining. 

This has been a no-go area, collective bargaining in China, for 

decades because, as I was suggesting, of this nightmare scenario 

the government has of organized labor turning into a huge political 

threat that will destabilize everything a` la Polish Solidarnosc. So 

for decades, the authorities have not been prepared to even countenance any kind of collective bargaining. But I think the situation 

now is, as I was suggesting, that senior levels are recognizing that 

the labor movement that’s now emerging needn’t be a political 

threat—if it’s addressed intelligently and in the right kind of way. 

Above all, I think the official government perception increasingly 

is that to resolve this growing tide of labor unrest—which itself is, 

of course, the result of several decades of neglect of social justice 

issues across the board, which has produced massive anger, resentment, and discontent at the grassroots—something fundamentally 

effective has to be done, because if it’s not, by gosh, these social developments at the grassroots, if just left to fester, are one day going 

to become a major political challenge for the government. 

I think probably the leadership has taken a look at Western Europe, North America, and other places where collective bargaining 

has been used for a long time. They found, you know what? It really does work. It reduces social tension, and it leads to constructive 

resolution of friction and conflict in the workplace, and society becomes more stable. These are the results of having free collective 

bargaining between workers and management as equal partners. 

You get an outcome that is ideally a win-win situation: the employer gets something, and workers get part of what they want. 

Collective bargaining produces compromise. It defuses things. In 

this sense it can serve the government’s goals, the most preeminent 

of which these days, of course, is keeping the ship of state and 

economy sailing smoothly and not being deflected or capsized, 

someday, by a huge wave of uncontrollable social protests or anger. 

At China Labour Bulletin, which my colleague Han Dongfang 

founded 14 years ago, we’ve always tried to be forward-looking and 

optimistic. Mao liked to say he was a ‘‘revolutionary optimist’’— 

geming leguanzhuyizhe—but of course we’re not revolutionary. But 

we do believe that one must be optimistic where trying to promote 

a labor movement in China is concerned. I mean, it’s a massive 

task, and there aren’t going to be any shortcuts to it. 

But I think there are good grounds for seeing the glass as half 

full in China, and even given this great setback of the financial crisis of the last nine months or so, I still think none of it is going 

to stop the impetus and dynamic of greater worker organization, 

looking for constructive solutions and, again, the migrant workers 

who keep on standing up for themselves. They’re not going to lie 

down. I was going to cite some examples, but I’ll leave those to the 

discussion. So, thank you. I’ll leave it there. 

Ms. OLDHAM-MOORE. Thank you. Thank you, Robin.We are very 

honored to have Erin Ennis with us today, and she will speak 

about the role of workers from the enterprise perspective. 

9 

STATEMENT OF ERIN ENNIS, VICE PRESIDENT, U.S.–CHINA 

BUSINESS COUNCIL 

Ms. ENNIS. Thanks, Charlotte. 

I thought what I would do is start off with just a little perspective on who the U.S.-China Business Council is—so that you can 

understand the perspective that I’m bringing to this conversation. 

I want to provide a little context of kind of why U.S. companies 

do business in China, since I think there is frequently very robust 

discussion in the United States about, why do companies do business in China, whether that’s good or bad. Then finally, I’m going 

to come back and talk a little bit about the impact of the recession 

and how it has affected company operations and in terms of how 

that really affects how companies deal with their workers. 

So at the outset, the U.S.-China Business Council is an association of over 200 U.S. companies that do business in China. We represent companies that are in pretty much every sector—so services, 

manufacturing, large and small companies, companies that do work 

in China, that export to China, and actually the majority of them 

now are companies that do business in China to access China’s 

market. 

As a consequence, that gives us a pretty broad scope of what 

companies are doing in China. In addition to that, the Council was 

founded in 1973, right after relations with China were normalized. 

We have had an office in China since 1979, which was the first 

time that a foreign office could open for an association like ours. 

We hope, as a consequence, our long history in China in dealing 

with the Chinese Government and trying to advocate open flows of 

trade between the two countries has given us some respectability 

on these issues and we’ve tried to approach them with a balance, 

recognizing that China doesn’t do everything right, and frequently 

they do things wrong. 

When those cases come up, we don’t hesitate in speaking to 

China about where the problems are. I’ll come back to that, actually, at the end when I talk a little bit about the Labor Contract 

Law’s development. But at the same time we also feel the need to 

talk about where things are going right, and it is a balance between those two things. 

So that’s my overview, throwing in what my perspective is. In 

general, I would say that when approaching the issue of companies 

doing business in China, I like to use the question that probably 

many of you are familiar with that frequently comes up in political 

campaigns: are you better off now than you were four years ago? 

In this case, I think the question is, are Chinese workers better off 

with U.S. companies operating in China or were they better off before they entered? I would argue that, without a doubt, they’re better off. 

Our surveys of our companies show that they tend to pay higher 

wages, they provide better working conditions, they offer better 

benefits, and they generally set a higher standard that we all 

would hope would have a broader impact on China’s society over 

time. And don’t forget that these are the companies that are helping to contribute to the growth of China’s economy that has lifted 

millions out of poverty, and at the same time has created more of 

a market there for exported U.S. goods. 

10 

One of the things that we’ve learned over our years of doing business and interacting with the Chinese Government is you can 

make more progress in persuading China by demonstrating to 

them that changes are in their interests, and that does a lot better 

job than trying to pound on the table and demand change from 

them. The alternative takes a lot longer, but we firmly believe that 

it can work. 

So there’s three points that I would like to make for you on companies’ operations in China before I move to a little discussion of 

the recession. The first point is that U.S. companies are a positive 

force in China. They tend to bring their global employment practices and environmental health and safety standards, and in most 

cases these practices exceed what the local law is, and U.S. companies act as a model for other companies in that area. 

We do a survey of our companies every year, and one of the questions that we ask them is, are the wages that you pay below, at, 

or above what the prevailing wage is in the area, and do you bring 

your environmental health and safety standards to the practices. In 

last year’s survey, 83 percent of our members reported that they 

paid above what the prevailing wage is, and an additional 15 percent said they paid the prevailing wage. In addition, 91 percent of 

them reported they bring their global environmental health and 

safety standards to their Chinese facilities. 

Let me put that in a little context of what that means. By bringing their global practices it means that they are exceeding whatever the minimum requirements are that China’s localities and 

government have in environmental standards. China has, no doubt, 

many substandard labor practices, but substandard employment 

and environmental health and safety practices typically occurred in 

local enterprises. Sometimes the enterprise is owned by foreign investors, but very rarely an enterprise is directly owned by U.S. 

companies. 

We feel the results speak for themselves. A couple of years ago, 

Manpower did a survey of Chinese employees and asked them who 

they would prefer to work for, a wholly foreign-owned company or 

a domestic Chinese company, and 75 percent of them said they 

would prefer to work for a wholly foreign-owned enterprise rather 

than a joint venture between a foreign company and a Chinese 

company or a wholly owned Chinese company. 

Second, the majority of U.S. companies are very sensitive to 

labor issues and they take steps to make sure that their suppliers 

meet Chinese law. Now, this hopefully should not surprise you: 

Most very large corporations have supplier auditing—very extensive—programs and when problems are found, they do their best 

to address them. They work to make sure that their suppliers come 

into compliance, and if those efforts aren’t effective, then they end 

their relationship with that supplier. 

Now, China has a lot of good laws on the books and I suspect 

that probably what you’ll hear multiple times during today’s discussion is the fact that enforcement is a problem. That is absolutely the case for many problems of non-compliance on supplier 

issues. Better enforcement ultimately is the best solution for all involved. 

11 

Company auditing can help toward that but it is not a complete 

solution. They can only be in so many places at so many times, and 

problems will continue to surface. When they do, they need to be 

addressed directly. 

In that, non-governmental organizations [NGOs] have an important continuing role in improving working conditions in China. We 

all gain from a fact-based approach, and if factories are identified 

with problems and have failed to comply with the laws, then they 

need to be brought into compliance. Companies need to make sure 

that those problems don’t happen again. 

Finally, on just a general overview, I would note that we believe 

strongly that China’s labor practices are better because of the presence and influence of U.S. companies, not worse. It is not perfect. 

There is a long way to go, but ultimately U.S. companies, especially 

those with good track records here in the United States and elsewhere around the world, are part of the solution in China rather 

than part of the problem. 

Now, let me turn for a minute to some of the issues that the recession has brought up, and one in particular that you’ve heard 

mentioned several times already: the Labor Contract Law. This is 

something that I think has been—for those of us that deal with 

China’s Government and the development of laws and regulations—probably one of the more heartening developments of laws. 

The Labor Contract Law was not fully transparent in how it was 

developed, unfortunately. Rather than publishing for comment various modifications, at least two of the drafts were given only to a 

handful of groups and companies and other interested parties for 

comment. 

But what we saw as it developed were changes that reflected an 

interest in balancing the inputs that they actually got on that law. 

While we represent companies—we submitted comments three 

times on various drafts of the law—we didn’t get everything we 

wanted. The labor unions, and the ACFTU in particular, didn’t get 

everything that it wanted in that law. But what came out was a 

balanced law that we think provides a good context for how to 

move forward and ensures that Chinese workers are protected and 

that companies operating in China have a predictable enforcement 

in which to operate. 

One interesting example of the proof of how the Labor Contract 

Law has worked, and it is an unfortunate example but one to keep 

in mind. The Labor Contract Law had very specific provisions of 

what had to be done if you had to reduce your workforce, if you 

had to downsize your factory or close a factory, for that matter. 

What our companies have found when they’ve been in those circumstances is that it’s actually provided a very convenient road 

map of how to have those discussions. There is a very specific set 

of criteria that had to be held with local governments about how 

this operation is going to be done, very open and frank discussions 

about the fact that no company wants to shut down factories. Obviously, everybody wants to continue to grow. It’s been a very useful 

implementation. 

And the final point that I would make is that the recession has 

moved us toward a better balance between how companies and 

workers work together. Many of you may have read that prior to 

12 

the recession there was a massive labor shortage—probably much 

of what Leslie was talking about in terms of employees working, 

moving to multiple jobs in very short periods of time was the fact 

that there was actually a labor shortage in China. It meant that 

workers could go to the highest bidder or find the best conditions 

that they wanted, and that was great for workers. 

But the recession has meant, with fewer jobs, that companies 

and employees are engaging in very robust discussions of how to 

retain the best workers. How do you make a worker want to stay 

at your factory if it’s a great worker and you know that you’re 

going to need them as you continue to expand what your operations 

are? That is, I think, going to be an interesting development on 

how labor contracts continue to improve and how that labor market 

continues to develop. 

I’ll stop there. 

Ms. OLDHAM-MOORE. Thank you. Thank you, Erin. 

Earl Brown, please. 

STATEMENT OF EARL V. BROWN, JR., LABOR AND EMPLOYMENT LAW COUNSEL AND CHINA PROGRAM DIRECTOR, SOLIDARITY CENTER, AFL–CIO 

Mr. BROWN. Thank you for having me speak to such a diverse 

group of very close and thoughtful China observers, and I hope to 

make a contribution if I can. 

I work for the Solidarity Center, which is a labor and human 

rights non-governmental organization [NGO] of the AFL-CIO. We 

have worked in Asia since the 1970s with garment workers, tobacco 

workers, plantation workers, and a wide variety of industrial workers. 

My history is as a labor lawyer in the United States for industrial unions and as a teacher of labor law. I’m going to try to bring 

a focused industrial relations perspective here, and I think that’s 

very different, perhaps, than the ordinary human rights perspective that we’ve had thus far. I may be wrong, but I think it’s a different focus. It’s not an abandonment of any position, but it is a 

focus on the industrial relations problems at hand. 

That is that China has the greatest and most rapidly assembled 

working class in the history of mankind; it is simply breathtaking. 

If you took a taxicab, like I did several years ago, around the industrial areas of Guangdong just to look at the factories, you would 

begin to appreciate the rapidity and scale of this industrialization 

process. The new factories didn’t even have street numbers they 

were put up so fast. You’d have to have a cell phone to find out 

where they were because they had been built before the streets 

were named, and to see masses and masses of workers and contemplate something that has never happened so quickly, to my 

knowledge, in history. 

It is also, I think, true that it’s a rare industrial society—and I 

mean an industrial society, not a service worker society, a society 

with a huge mass of industrial workers—with a lot of grievances 

to sustain itself over a long period of time without some form of 

worker voice and representation at the plant level. There is no way 

that labor standards and norms, which are a part of human rights 

norms—if wages get too low people can’t live, abusive labor condiVerDate Nov 24 2008 14:49 Jan 06, 2010 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 U:\DOCS\51190.TXT DEIDRE
13 

tions are violations of people’s human dignity—can be enforced by 

labor ministries, by professors, by sociologists, or any other group. 

They can only be enforced by an institution that acts as an agent 

of workers at the plant level, on the spot, where and when the violation is occurring. 

Witness mine workers. Mine workers in China that are three 

miles underground in the mines at Liaoning Province where you 

travel one kilometer down and two kilometers out do not have access to any lawyer, academic, government official if there’s an imminent danger. They have to have an institution and a right and 

a confidence in their right to remove themselves from the dangerous situation. 

So I think that what I’m proposing is the need for industrial relations—the continuous negotiation of standards by representative 

institutions of the workers, and of the employers. There’s a sequencing problem. There’s an institution that calls itself a union 

but has no presence at the plant level, to speak of, in the private 

sector, this huge, massive private sector. The question is: what’s 

going to happen with that institution that is not adapted to private 

sector labor relations? 

Now, I don’t think anyone knows exactly the ramifications of the 

downturn, but let me just talk today about some other segments 

of the working class in China. We are all familiar with the plight 

of migrant workers’ environment and of other light industrial sector workers in export factories, but there are also a lot of skilled 

workers, a lot of high-tech workers, a lot of young urban workers 

entering the workforce, seeking jobs. There are taxicab drivers, 

there are pilots, there are dock workers. There are all kinds of 

other workers that are also involved in labor disputes as well. 

These workers are spontaneously using the new Chinese labor law 

to improve their situation and are seeking to bargain with employers. 

We had a case of workers—I’m not going to describe them, but 

they have reached out on their own to the Danish union that represents the workers at the Danish employer’s facility in Denmark. 

It’s a very creative act of workers. They are seeking to assert 

standards. Unions that are responsive to their constituents are one 

important mechanism for enforcing standards, I think along with 

strict law enforcement that is going to be the future of industrial 

relations. But we don’t yet know the full impact of the economic 

downturn. 

One of the major factors we’ve talked about is the 2008 contract 

law. It has assigned many bargaining functions, many plant-level 

representation functions, to a union that is institutionally, as I 

said, absent and otherwise not equipped structurally. 

It doesn’t have employer-specific research—it doesn’t have bargaining expertise, it doesn’t have skill and grievance handling and 

mediation. It’s a sign some of those function in a very skeletal, undeveloped form to this union. The question is, can the union step 

up to the plate? If not, what groups will emerge to take advantage 

of that space? 

I just want to suggest that one of the functions, one of the great 

things the international labor movement can do better than any 

other group, is assist pro-worker voices in China, in the union, with 

14 

policymakers, in their legal aid societies, to begin this industrial relations function, to begin to work to help and partner with Chinese 

counterparts on bargaining skills and to begin to bargain so that 

you can have the bargaining. You might even have the bargaining 

before you have the perfect institution to do the bargaining. Imagine what would happen if you actually had the most minimalistic 

form of bargaining; for example: imagine miners were able to obtain a 0.5-percent wage increase throughout China, or one small 

sector of one industry in Guangdong Province was able to get some 

minimal wage increase. How many millions of workers would be directly affected and how many other workers would watch that bargaining and seek to replicate bargaining in their factory or sectors? 

Under Article 41 of the 2008 Labor Contract Law there is bargaining going on now about layoffs. The union must get, now, notice 

of every layoff and has bargained for reduced salaries and furloughs versus unilateral mass layoffs. In the United States, employers can unilaterally discharge. In China, they have to negotiate 

in some manner. This is incipient negotiation, this is very inchoate, 

but it’s the beginning of negotiation. I think this is where a focus 

on industrial relations and the skills of the international labor 

movement can actually contribute to improving industrial relations 

in China if done appropriately and with a sense of equality and 

mutual respect, and not for extraneous agendas. 

Thank you. 

[The prepared statement of Mr. Brown appears in the appendix.] 

Ms. OLDHAM-MOORE. Thank you, Earl. 

We have an extraordinary group of people with us today who 

have an immense wealth of experience. At this stage in the proceedings we will turn to the audience to pose questions. There will 

be an official transcript, that will be published on our Web site. 

So when you stand and offer your question, please feel free to 

offer your professional identification and your name, of course. But 

if you don’t want your name to be listed in the transcript that will 

later become a public document, just let us know. 

So let’s now turn to the audience. Our first question is from 

Anna Brettell. 

Ms. BRETTELL. Hi. I’m Anna Brettell from the Congressional-Executive Commission on China. My question relates to strikes in 

China. I am just curious if strikes are still illegal in China and if 

there are these strikes, as Robin pointed out, on a daily basis, then 

what happens to the strikers? Are they treated differently now 

than they were maybe 10 years ago? 

Ms. OLDHAM-MOORE. Who are you directing this to? 

Ms. BRETTELL. It could really be directed to anyone who wishes 

to answer, but I’d like to hear from at least Robin and Earl. 

Ms. OLDHAM-MOORE. Robin, then Earl. 

Mr. MUNRO. The question was, how is the government dealing 

with striking workers? 

Ms. BRETTELL. Basically, are strikes still illegal and what happens to the strikers? Are they treated differently now than they 

were 10 years ago? So, it’s three parts. 

Mr. MUNRO. Okay. As I mentioned in my talk earlier, I think the 

government’s reaction, and local police authorities’ reaction to incidents of labor unrest has changed significantly over the last, cerVerDate Nov 24 2008 14:49 Jan 06, 2010 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 U:\DOCS\51190.TXT DEIDRE
15 

tainly, 20 years, and even within the last 5 years. In the old days, 

including the 1990s, any effort by workers to stage protests, to organize unofficial campaigns against bad conditions in a factory just 

triggered all of these paranoid reactions from the authorities, who 

would tend to label them as politically subversive elements, and 

they’d be arrested and sent to jail. 

I’ll give an example. In 1999, a labor lawyer in Baotou in Inner 

Mongolia, named Xu Jian—a man of the people, he worked for himself, a self-trained lawyer—was very committed to representing 

workers in court who were involved in labor disputes. He had a law 

office there, and because he was in contact with so-called ‘‘overseas 

hostile forces,’’ meaning foreign NGOs and the like, he was arrested and charged with ‘‘subverting state power,’’ the most serious 

charge in the Criminal Law, and was sentenced to four years in 

prison. He was brutally beaten, often starved, and made to serve 

his entire four-year sentence. 

Now, that was 10 years ago. The same kind of thing was happening in the early 2000s. Overall, I think what’s changed nowadays is that the sheer scale of worker activity has become so 

great—with workers carrying on strikes or mass protests almost 

every day in cities around the country—that it would be politically 

untenable for the government to continue to see all these incidents 

as politically motivated challenges against the government. It 

would be ludicrous. It’s obvious they’re not. Overall, the government realizes that these events are driven by real livelihood issues 

on the workers’ part: they’re under pressure, and in many cases 

their backs are against the wall, because their wages are so low 

and some of them haven’t been paid for six months, for goodness 

sake. How can you live that way? So you protest. The government 

realizes this, and so it stops, by and large, arresting them. 

So there’s this recognition that worker protest is not inherently 

a political threat. At the same time, I think the authorities are 

very aware that if they’re not very careful, if they overreact with 

police suppression to what are just livelihood-based issues, then 

they will make things much worse. So, there’s also an anxiety on 

the government’s part not to inflame an already volatile situation. 

What we find nowadays, more often than not, is that if there’s 

a big enough protest going on, local governments will probably intervene and try to negotiate a settlement that will probably benefit 

both sides in the end. And workers know this and they actively 

play this game, even though protests are banned, technically. This 

is the kind of dynamic we’re increasingly seeing now. Again, it’s 

quite hopeful, I think. 

But of course, there are notable exceptions. I’m not trying to suggest that repression in China is really easing up fundamentally. 

Certainly, the more high-profile cases involving political dissent, 

overtly human rights-related law cases, and lawyers representing 

the victims, these are the kind of people who are still A–1 targets 

for repression and who often do still go to jail. So overall, it’s a 

mixed picture. 

Ms. OLDHAM-MOORE. Okay. Earl? 

Mr. BROWN. Well, I think I agree with Robin. There is less of a— 

but I want to recount a discussion I had with a Chinese labor lawyer who was shocked to learn that comparatively under U.S. labor 

16 

law the right to strike is not a constitutional status and that in the 

United States, many strikers are arrested. He and I went through 

the history of it, and he said, ‘‘Oh, you mean when the strike becomes effective on the employer it becomes illegal? ’’ 

I said, that would be a fair, practical summary of the law of the 

United States, which also leaves people in the United States, as we 

speak right now with the few strikes we’re having, do get thrown 

into jail and do get put in jail for civil contempt for 18 months 

without a right to jury trial. So I think you have to have a comparative perspective on what happens. 

I think there is an unholy alliance around the world between 

local government and local employers to use the criminal law to 

criminalize industrial disputes and to bring out the police to whack 

people on the head and get them back to work and suppress the 

dispute. I think that was the standard operating procedure in 

China. I think there has been a retreat from that. 

But I think, as Robin says, off the stage in quiet places, strikers 

are getting thrown in the pokey and beaten up and hit and everything else. We have a partner right now that is under a lot of pressure 

strictly through the facts of both employer and local government. 

I think this is the bond between law enforcement, local government, and the local branch of the ACFTU. There can often be very 

detrimental alliances for workers. 

However, the Party is realizing that with this scale of striking, 

you can’t use the billy club to solve it and has issued a directive 

to the Party officials, which I thought was great, saying get out 

from your desk and get out there from hiding behind the police and 

solve the problem. So, I think that’s a hopeful trend. 

Ms. OLDHAM-MOORE. Okay. Thank you. 

Robin? Twenty seconds, you said. 

Mr. MUNRO. Yes. I’ll just quickly mention one item. China 

Labour Bulletin has a large project in China called the Labor 

Rights Litigation Project, through which we bring workers and lawyers together and provide pro bono assistance in the form of lawyers’ fees, so the workers can sue abusive employers. 

Under that broad heading we also have the Criminal Defense 

Project, which is expressly designed so that we can provide defense 

lawyers to worker activists who get arrested in the line of union 

duty, or union-type duty. They are mostly workers who have organized protests, or people identified by the government as ringleaders of disputes that have been met with repression. We are 

actively providing lawyers and legal assistance to a number of 

workers in that situation right now who are in detention. 

Ms. OLDHAM-MOORE. Great. Thank you. 

We have a lot of people who want to ask questions, so please direct your question to one person. The lady in the first row, please, 

and then Mary. 

Ms. KWANG. Orinne Kwang, Center for Diplomacy and Democracy. I was wondering whether—one person? I’m going to say Leslie, because you’ve interviewed a lot of people. In the non-worker 

community, because when this migrant migration started, the 

urban dwellers always looked at them as trouble, or the crime rate 

goes up. So what is the situation now? If we have an opportunity 

to educate the non-worker community, especially those ones who 

17 

are influential, for example, bloggers, what kind of activity would 

you recommend to expose them or help them with their impression 

or support for the worker community? Thank you. 

Ms. CHANG. Yes. I do find that it has improved over the years. 

I think the government is actually part of it, because in the 1990s 

you would often read stories in the paper, the government-influenced or controlled newspapers, noting that crime was high in the 

city in Shanghai or Beijing because of the migrant population. 

But I think starting around 2002 or 2003, the government made 

a pretty concerted effort to acknowledge that migrants actually 

have made a huge contribution to the economic growth of the country and we should start protecting them more, and we started seeing laws coming out saying migrant children should be able to go 

to school in the city, and all sorts of things. Again, enforcement is 

the issue, but I think the general mindset has shifted. 

In terms of average people in the cities, I feel like there is still 

a certain condescension and misunderstanding toward the migrants. For example, one of the two women I wrote about, 

Chunming, started off as an assembly line worker, and then over 

the years she became a salesperson and kind of a proto-middleclass type worker. 

One time she was walking down the street with one of her 

friends who is a nurse, so in a similar class as Chunming but more 

educated, and they were passing a place where there were a lot of 

migrant workers who were eating snacks and singing karaoke. This 

nurse turned to me and said, ‘‘Oh, look at the poor migrant workers. Their lives are so terrible. You give them just a little snack 

and they’re happy, because they’re so desperate.’’ I was standing 

next to Chunming and she didn’t say anything, even though she 

should know better, coming from this world. 

So I think there’s this automatic kind of condescension and pity 

that urban people have for rural people and migrants and you see 

that a lot in the Chinese press as well. The articles tend to be, look 

at these poor migrants, we should help them. I think the instinct 

might be good, but the attitude is very disrespectful. In terms of 

what we can do, if you can reach bloggers and reporters and get 

them to try to spend a bit more time really understanding how migrants operate and what their lives are like, I think that would 

make a difference. I think the problem is, most people in urban 

China who have worked and clawed their way into comfortable positions do not like to spend a lot of time in local factory towns or 

in villages. I felt that even among a lot of scholars who were supposedly studying migrants, they really liked to spend most of their 

time in Beijing in nice offices and in academic departments. 

Ms. OLDHAM-MOORE. Thank you. 

Mary Gallagher, please? 

Ms. GALLAGHER. I have two questions, but they’re for two separate people. 

I have a question, I think, for Leslie, first. I think there’s sort 

of this juncture between some of the things that Leslie said and 

some of the things that Robin and Earl said, particularly in terms 

of this idea that there’s an emerging labor movement that is heavily concentrated in the migrants. 

18 

So what I want to ask, and maybe if Leslie would answer it, or 

somebody else, is maybe what we need to do to figure this out, is 

there an emerging labor market or is, perhaps, migrants—apolitical and very self-reliant is to break migrants down more and to 

talk about what are the differences within the migrant population 

and where we might see variation. 

I know your remarks focused on women. So is there a gender— 

what makes migrants—not necessarily—government—active. My 

own impression would be perhaps that it has to do with how long 

they stay in the city and how stable they might feel, and then 

that—interests in their political life, their social welfare, activate 

them. 

So the second question is for Erin, and it’s about the labor contract law debate and about the role of the foreign business associations. I think that was a really interesting debate and I think it 

was really, like you said, heartening in the sense that it was relatively transparent, relatively participatory. 

I think the problem for foreign business associations is that you 

did the work for all employers in China, at least publicly, and in 

a sense we’re blamed for that in the media. I’m wondering what 

your impression is in going forward. Does the U.S.-China Business 

Council want to continue to take that role very publicly, or in the 

next round where there’s a law that you have a big stake in, will 

you also perhaps go through the back door like a lot of Chinese employers do? 

Ms. OLDHAM-MOORE. Both of those questions get to get answered. 

Okay. Thank you. Leslie. 

Ms. CHANG. Yes. I guess it sounds like there’s a natural conflict 

between what I’m saying and what Robin was saying. I think my 

approach was just that—I felt people were maybe getting the 

wrong impression that every worker is on the edge of unrest and 

protest. Once something goes wrong, they’re out on the street. I felt 

like, by focusing on a few so-called ‘‘ordinary’’ people who were not 

activists or organizers, that that would convey a very different impression. 

But definitely, there are protests all the time in cities all over 

China. In fact, when I was in Dongguan I saw some small-scale 

protests on all sorts of issues. Again, as Robin was saying, there 

isn’t one kind of over-arching political grievance, but it’s more like, 

we didn’t get paid, or they’re favoring local people over migrants, 

all sorts of nitty-gritty issues. 

In terms of how to identify the migrants who are moved to protest versus those less likely to do so, maybe others have done more 

studies on this. I do think that young women may be less likely to 

protest than, say, 45-year-old men, just because they feel like 

they’re very vulnerable and therefore their focus is all the more on 

their own personal situation. 

Ms. OLDHAM-MOORE. Erin, please. 

Ms. ENNIS. Thanks for the question. I’ll be honest with you, we 

are big fans of transparency. One of the things that makes it possible to do business is knowing what your operating environment 

is going to be like. The advantage to transparency and having more 

and more laws out for comment, is the goals that are set out. So 

while I think we probably did do a lot of work for others who might 

19 

have been potentially working to try to make it a less stringent law 

behind the scenes, our approach to it was, we have to represent the 

interests of U.S. companies. We try to do everything as close to the 

United States’ legal standards as we possibly can because it’s a 

predictable business environment that companies like. 

The issue of transparency itself is one that we take seriously. For 

those of you who follow China a little more broadly, the end of 

2007, I believe it was, beginning of 2008, China had put out several 

directives on mandating transparency from the central government, 

mandating that laws be put out for comment. 

Then it was modified in 2008 as well to mandate for the state 

council that laws not only had to be put for comment on the central 

Web site, but they had to be out for 30 days so that you could actually comment on them. What had happened in the intervening 

years, is rules would be put out for comment for two weeks or so. 

If you’re dealing with something as detailed as a patent law that’s 

300 pages, how do you ever come up with a full set of comments 

in that period of time? 

The implementation of even a state council directive on this has 

been spotty. Some things have come out for comment, others have 

not. We comment on as many as we possibly can, if for no other 

reason than to encourage the government to continue to put these 

out for comment and to recognize that at the end what it’s going 

to get is constructive input that is designed to enhance what they 

are trying to do—as in the case of the Labor Contract Law—rather 

than trying to stop them from putting out anything. So, we’ll keep 

at it and there are others trying as well. 

Ms. OLDHAM-MOORE. Thank you, Erin. 

Mr. Bork. 

Mr. BORK. My name is Thomas Bork and I’m with America’s Development Foundation. I have a question about the urbanization 

that’s going on. China is going through a fast mobilization of the 

rural people into the urban centers, with creating new cities in several provinces. How is this going to impact migrant workers in 

Hebei, Liaoning, and also Hunan Provinces? They have some big 

projects being financed by the Asian Development Bank and 

things—so they’re taking huge areas in a rural area, bringing people into the cities. 

Ms. OLDHAM-MOORE. Okay. 

Mr. BORK. It’s like—for lack of water, a lot of the cities tripled 

in size over the last few years. How will this impact? 

Ms. OLDHAM-MOORE. Okay. Who would like to take that? 

Ms. ENNIS. I’ll take a crack at it. I don’t know that I can necessarily speak to how it affects migrant workers because I can only 

talk about companies. Just to put this in a little bit of perspective, 

China ranks its cities and they do it in tiers, a first-tier city—the 

ones that are on the Pacific Coast—and then on down as you go 

to the interior. They have had programs for the past few years trying to get companies to invest in third-tier cities, fourth-tier cities, 

fifth-tier cities. 

You’re getting further and further into the interior—we’re still 

talking about cities with over a million people. We’re not talking 

about small towns necessarily where companies are not going to be 

20 

able to find a workforce, but definitely difficulties up until recently 

in infrastructure problems in getting companies out there. 

So I think the number one challenge from a company perspective 

is, while China is very interested in dealing with kind of developing more cities, creating more jobs, the further you get from an 

infrastructure system where a company can produce a product and 

distribute it within China itself, it becomes a little more difficult 

the further you get away from where the heart of that system is. 

Companies are going to be looking at, number one, ways they can 

get a product to market, and number two, if they have the workforce that’s going to be able to get to where they are and to be able 

to function in a modern factory. So, just some considerations on the 

company perspective. I’m sure there are other comments on the migrant aspect. 

Ms. OLDHAM-MOORE. Thank you, Erin. 

Robin wants to comment, briefly. 

Mr. MUNRO. Yes. A few thoughts on that interesting question. To 

the extent that the kinds of cities you’re talking about are coming 

out of nowhere, which is basically the case, the population is all 

migrant workers, apart from the professionals who come there to 

provide high-level services. They’re basically migrant worker 

towns—or as Erin says, cities, large ones. Dongguan is a great example of this, where Leslie spent so much of her research time 

with workers. 

In these situations, the established discourse from previous decades on migrant workers becomes irrelevant. That discourse says 

that market workers are out-of-towners, that they have conflicts 

with the majority, the established urban population. That problem 

clearly doesn’t exist, so there’s kind of a fresh-start element here. 

In fact, in many cities now, as part of the overall effort by the 

authorities to raise the profile and public image of migrant workers, the local government is promoting terms like ‘‘new urbanites’’—xin shimin—as a new name for migrant workers, which is 

much more respectful, and also acknowledges that they’re here to 

stay, they are a new immigrant population and therefore deserve 

some new rights. Names are very important, especially in China— 

Confucius and the ‘‘rectification of names,’’ et cetera. 

So there are some positive things, but I think these new cities 

are also a huge challenge administratively and fiscally for the government, because the old arguments—they’re out-of-towners and 

the city has to use its resources for the established population, and 

so forth—against providing migrant workers with full social welfare services, access to subsidized medical care in the cities, subsidized health and education for their children, are simply no 

longer valid. 

But so far I think what we’ve seen is that, rather than the government saying, well, the whole population is made up of migrant 

workers, therefore we have to give them all the social services and 

welfare that urbanites in other cities enjoy—the example of 

Dongguan and other new cities shows that they just don’t do that. 

It’s a city of over 10 million, nearly all migrant workers, and they 

still have very little in the way of social services. So I think a real 

shift of vision is needed from the government on this issue quite 

urgently. 

21 

Ms. OLDHAM-MOORE. Thank you. 

Yes, sir? 

Mr. OSTWICK. Yes. I have a question actually for Mr. Brown. My 

name is Peter Ostwick. I’m an intern in Senator Sherrod Brown’s 

office. I’d like to thank the panel for their work in China. I think 

you guys are doing a great job with your inspirational work. 

Mr. Brown, how do you think—my Senator is from Ohio, and 

we’re representing Ohio. How do you think that opening auto industries in China would benefit workers in Ohio? 

Ms. OLDHAM-MOORE. That’s a great question. This gentleman 

from Ohio asked, how does opening auto industries in China benefit Ohio constituents. 

Mr. OSTWICK. Ohio, and auto industries in general. 

Ms. OLDHAM-MOORE. Okay. Go for it. Are you running for Congress now? [Laughter]. 

Mr. BROWN. I am a great admirer of Senator Brown. 

Ms. OLDHAM-MOORE. Yes. He’s wonderful. He’s a commissioner. 

Mr. BROWN. I do not think that—one of the problems posed, and 

this is why I argue from an industrial relations perspective and I 

argue for bargaining and I argue for an actual labor movement approach to China, adapted to China’s circumstances, is to stop the 

race to the bottom. I think we have in this country—since you 

asked the question, we have one of the few countries in the world 

without an industrial policy and we shift our manufacture overseas. 

I don’t think it helps American workers to take American work 

to China and produce it at a lower labor cost. I think it is the very 

definition of a race to the bottom. I think it is part of the reason 

that the world economy is unbalanced. I don’t think we stop that 

alone with human rights interpositions from outside. I think we 

need an agency in China to improve wages, hours, and working 

conditions. 

Everybody says, to that answer, well, call me in the next century. 

My answer to that is, if you had been in Shenzin in 1980 and 

worked with the 30,000 fishermen in the fishing village there, and 

you went there now to see the fishermen—who knows, 10, 12, 13 

million, you would have said that was not possible in 30 years. 

China has accelerated labor contract law and can be, as Robin has 

said, with appropriate investor relations focus, the beginning of 

the—race to the bottom. 

If I could just say, one of the things—this is a somewhat complex 

question. That is that I’m not advocating that anyone give up their 

position or their trade remedies that American workers receive. I 

do think we have to be careful not to blame Chinese workers for 

this crisis. I think we have to make distinctions between, what is 

taking American jobs and what is opening up jobs that are for the 

Chinese market, which is a hugely developing market. There will 

probably be, no matter what anyone says, production in China to 

do that. But I think that American workers and Chinese workers 

have common problems and should work mutually to solve them for 

everyone. 

Mr. OSTWICK. I’m going to refer to that other question of, what 

are Chinese workers doing from—people like yourself are focusing 

22 

on human rights in China, labor conditions, and that’s wonderful. 

But what are the Chinese workers doing for us over here? 

Mr. BROWN. What do you mean by—— 

Ms. OLDHAM-MOORE. His question was, what are Chinese workers doing for us here in the United States? 

Mr. OSTWICK. Right. 

Ms. OLDHAM-MOORE. That’s a huge question. Would you like to 

take that, Robin? You’re very smart. 

Mr. MUNRO. Okay. Let me be provocative here. 

Ms. OLDHAM-MOORE. Yes. You can say it and we’ll throw tomatoes. 

Mr. MUNRO. I think it’s an unfair question, to be honest: what 

are Chinese workers doing for workers here in the West? Actually, 

they have quite enough problems of their own right now. I mean, 

it’s notoriously difficult to get workers anywhere, even in developed 

countries, to cooperate in any kind of cross-border solidarity action. 

It very rarely happens. The American Center for International 

Labor Solidarity [ACILS], I’m sure, know this very well, working 

in the area of international labor solidarity. Workers have to deal 

with the situation and the problems in the place where they’re living. Chinese workers are confronting not just their employers, but 

sometimes also the local government. It’s asking too much of a 

labor movement, even in a highly developed country, to spend a lot 

of time worrying about workers in other countries, to be honest. I 

think that’s the short answer, and particularly in China, where the 

labor movement is still so underdeveloped. 

I’d also like to return briefly to an earlier point: I don’t actually 

think there’s any kind of conflict or contradiction between what 

Leslie was saying and what I’m saying. I’m not trying to argue, 

when I say there’s an emerging labor movement in China, that 

workers are all on the move now and becoming ever more militant 

and challenging. But then, that’s hardly the case in any country. 

Here in America, what is it: 14, 15 percent of the workforce is 

unionized? That’s all? But no one would say that America doesn’t 

have a labor movement. Indeed, it has a strong one—one that 

wants to be a lot stronger, but it’s certainly there, no question. 

What I’m saying is there are now significant numbers of workers 

in China who are fighting back and standing up for their rights all 

over the country. We’re now able to say, whereas 10 or 15 years 

ago there was a dismal void where worker action and solidarity 

was concerned, that’s no longer the case. There is something happening. It’s definite and it’s a reality. I also believe that political 

history tends to be made by minorities anyway. 

If you have an entire workforce on the move and being militant, 

it probably means you have either fascism or revolutionary Communism. Those tend to be the only two forces that can achieve such 

a result, and I don’t think anyone here wants that. So we’re talking 

about a minority of workers in China, but a significant and important minority. That’s what I mean by the emerging labor movement, and I would also characterize it as being at a ‘‘pre-union’’ 

stage of development. 

Ms. OLDHAM-MOORE. Earl wants to make a quick comment, and 

then the young woman with the stripes is next. 

Mr. BROWN. There are concrete examples of joint action between 

Chinese workers, Asian workers, and people in that labor market— 

23 

it’s not just China—that I’m happy to talk to you about off the 

record. 

Mr. OSTWICK. All right. 

Ms. OLDHAM-MOORE. Earl and the gentleman from Ohio will 

have a tet-aˆ-tet up here. Okay. 

Ms. GUTHNER. Hi. I’m Carol Ann Guthner. I’m from the State 

Department. This is a question to Leslie. I was wondering what 

you think the implications are of the Chinese Government relaxing 

and changing the hukou system for workers you observed, and kind 

of all workers. 

Ms. CHANG. Yes. I think it’s different in different places, as with 

so many things in China. Where I reported in Dongguan, which, as 

Robin said, was almost all migrants and very few local residents, 

I didn’t find the hukou to be much of an issue because almost everyone in the city is an outsider. I actually spent six months in 

Dongguan before I met my first local Dongguan person. 

Ms. OLDHAM-MOORE. Leslie, may I interrupt? 

Ms. CHANG. Yes? 

Ms. OLDHAM-MOORE. Just define the term ‘‘hukou’’ for our nonChina experts. 

Ms. CHANG. Oh, I’m sorry. Yes. The hukou refers to the household registration system. When someone is born they’re issued a 

document that identifies what place they’re attached to based on, 

I think, where their mother lives. In the old days, this meant that 

even if a migrant went to a city, he or she would not have any benefits and would always be a second-class citizen and suffer a lot of 

discrimination. 

But in a place like Dongguan, because there’s no sense that there 

is that much of a local population, the hukou was not really an 

issue for migrants. They would come to the city, find a job at a factory, and then be paid their wages and just focus on personal 

issues. I did get to know some couples who had lived there much 

longer and eventually bought apartments. I knew one migrant couple who had lived in the city about 10 years and were able to buy 

a local apartment, and then also to buy a local hukou registration, 

so that when their daughter entered elementary school she would 

be able to be registered. 

So I feel like in a place like Dongguan things sort of evolve as 

they go and people figure out solutions by the time they have to. 

In a place like Beijing or Shanghai where there’s a very strong 

local population with a relatively small number of migrants, there 

might be more issues for migrants. They still feel very much discriminated against, can’t get certain jobs, and their kids can’t go 

to good schools. But I think, again, that is also changing. The government has policies in the smaller cities now that allow people to 

move there from the countryside and apply legally for local hukou 

registration. It seems that eventually these moves will get to the 

big cities as well. 

Ms. OLDHAM-MOORE. Thank you, Leslie. I want to encourage the 

audience to visit our Web site. We have a lot on the household registration system and hukou reform. Wenchi Yu Perkins, of our 

staff, has done a great deal of work on that, and she’s right there 

if you want to talk to her after the event. 

24 

Ms. SEGER. Hi. My name is Kayla Seger. I’m an intern for Senator Max Baucus. I had a question more about the Olympics and 

how that has impacted migrant workers. This is more directed toward Leslie. Sorry about all the migrant worker questions. But I 

just returned recently from China, and I lived in Beijing. 

A lot of times, while they were preparing for the Olympics, they 

would absorb workers into the workforce who would do things like 

paint the sidewalks green to make it look like there was grass, 

plant trees for 100 meters on each side of Xingchao Mu, which is 

the big highway there, in order to kind of put out this impression 

that China was urbanizing and developing, but also becoming 

green. 

So my question is more, how do these people who were absorbed 

into these roles, especially during the Olympics, how are they impacted by the recession, but more so, is the government helping 

them to get jobs now that the Olympics are over, and how is that 

carrying on long term—— 

Ms. OLDHAM-MOORE. That’s a good question. 

Ms. CHANG. Yes. Thanks for your question. I don’t know specifically whether the government had any policies for this group of 

people. I would say, in general, the government isn’t doing that 

much for these migrant workers. Again, I think the migrants just 

figure things out on their own. In terms of all the building that 

went on surrounding the Olympics, I think the migrants came and 

realized there was a huge opportunity, especially for the young 

men who work in the construction trades, and realized that we’re 

going to have six months of really good work and then it’s going 

to be finished. 

So they know all these things. They know all the information 

they need to know about employment in terms of their own interests, and then when the time comes and the job is finished, then 

they might hear of another job in another place or hear of something else closer to home. So again, I just feel like they’re very fluid 

and they just operate the way they always have, which is just to 

hear about work and pursue leads as they go. 

Ms. OLDHAM-MOORE. Okay. Thank you. The last two questions: 

the gentleman there in the black shirt, and then Wenchi. Thank 

you. 

Mr. OSH. My name is Tyler Osh. I’m here on behalf of the 

U.S.-Asia Institute. I have a question for Mr. Munro about the development of the rule of law in China. 

It’s been mentioned that labor rights legislation has been developing, but just because there’s legislation, that doesn’t mean it’s actually going to be put to use. This is true for industrial societies, 

especially in the Korean labor movement. So I am just wondering, 

you mentioned the litigator program or project, right? 

Mr. MUNRO. Yes. 

Mr. OSH. And I’m just wondering, how much do workers understand their rights via this new legislation, and how do you create 

a space in which they can learn more about these rights so that 

they know they have the right to be—— 

Mr. MUNRO. Thanks. A very good question. Well, I think to begin 

with, the first part of the answer is that migrant workers in China 

increasingly do know that there are laws that protect them. Now, 

25 

I think most citizens, even in economically developed countries, including well-educated people, are not going to be experts in laws. 

They need a lawyer to explain the details to them. 

But the awareness is sufficient if you know there are laws that 

protect you and you have a rough idea that employers should not 

be allowed to do X, Y, and Z to you. They shouldn’t be allowed to 

withhold your wages indefinitely, or at all, and they also shouldn’t 

be allowed to expose you to toxic chemicals, for example. They 

should give you a safe working environment. You should be entitled 

not to have to do forced, compulsory overtime to ludicrous levels 

such as 13-, 14-hour or even longer days. China’s migrant workers 

know quite enough in this general area to know that they have 

rights. As you’ve suggested, the main problem with the new labor 

laws is there is no real will on the part of local authorities to enforce them, as Erin was saying. This is the big problem. There are 

lots of reasons why that is. 

The central government, by the way, even following the impact 

of the economic crisis, which you would have expected perhaps to 

lead to a backtracking and soft-pedaling of these new laws, in the 

interest of keeping enterprises viable and avoiding anything that 

might make the economy even worse—they’re not doing that. 

The central government is sticking to the line that these are vital 

laws, they must be enforced. I think this reflects the leadership’s 

keen awareness that unless they do something genuinely effective 

to halt the steady increase in labor protests, they’re going to have 

a political problem, a stability problem in the country. 

The central government, by and large, is committed to these 

laws. It is local governments that do not enforce them, and there 

are several reasons. One is that local authorities are afraid if they 

enforce the labor standards and law, they’ll scare away investors. 

They’ll go to the neighboring county or city—their competitors— 

and they don’t want that. That’s a big problem. 

Another is that there’s not enough labor inspectors. In fact there 

are pitifully few of them under the local labor agencies. It’s just a 

massively under-funded, under-valued area of the administration 

in China. I think, Mary, you probably know this better than I do. 

In the whole of Shenzhen, where there are tens of thousands of factories, there’s only a small handful of labor inspectors. How can 

they enforce the law? 

Also, the inspectors are not paid enough, so they’re vulnerable or 

susceptible to bribery by employers. They come in to inspect a factory and the owner will say, ‘‘By the way, there’s a package there, 

feel free to take it away when you leave; no need to open it, you 

know what it is.’’ All these things make enforcing the labor laws 

a big problem. 

But what is crucial, though, is that even after the economic crisis 

began, workers themselves have not been scared off or discouraged 

from bringing labor dispute cases into the courts or to the labor arbitration committees—the administrative bodies that workers, by 

and large, have to go through first before they can sue, if suing is 

necessary. 

The figures from the government show this. In 2008, after the 

Labor Contract Law was brought in, there was a 98 percent increase in registered labor disputes over the previous year. Of 

26 

course, the financial crisis only began last autumn, really. But hey, 

the latest figures show that for the first three months of this year, 

labor dispute cases have risen at a similar, or even higher rate 

than last year. So clearly workers are not being discouraged. They 

know their rights and they want to have them enforced. 

What they don’t have is proper legal advice and representation. 

The cost of hiring a lawyer usually outstrips what migrant workers 

can afford. Last year China Labour Bulletin adopted, through our 

Labor Rights Litigation Project, around 600 new labor dispute 

cases, and over half of them eventually had to go to the court litigation stage. In our experience, the average cost for a migrant 

worker to hire a lawyer—covering labor arbitration, first trial, and 

often also an appeal hearing—is about 5,000 yuan, which can be 

at least three months’ total salary for many workers. An impossible 

amount. So they need access to legal aid, but it’s just not available. 

There’s huge overall demand from workers seeking redress and 

compensation from employers, but they mostly can’t afford to make 

use of the available legal channels. 

Ms. OLDHAM-MOORE. Thank you, Robin. 

Very briefly, Erin. Then we’ll go to Wenchi for the last question. 

Ms. ENNIS. I just want to pick up on one quick point that Robin 

had made, and that was at the beginning of this year, as the recession was really starting to take place, we started hearing noises 

that some companies, and particularly some provincial governors, 

were potentially trying to go to Beijing to suspend implementation 

of a labor contract law. Our recommendation to the Chinese Government at the time was that that was the absolute wrong thing 

to do. The reason why you have a labor contract law is to guarantee that workers and companies have a predictable environment. 

It shouldn’t be based on what the economy is. And if you want 

to avoid something like what Earl has suggested, a race to the bottom, then you suspend your laws that protect workers and companies, so they know the playing field, at a time just because the 

economy isn’t doing well. We’ve been very pleased that the law has 

not been suspended. 

Ms. OLDHAM-MOORE. Thank you, Erin. 

Wenchi Perkins, please. 

Ms. PERKINS. I’m from the Congressional-Executive Commission 

on China. My question is for Leslie. I think we talked a lot about 

workers in factories. What about migrant workers working in informal economy such as nannies and the so-called dagong mei, there 

are more and more of them—what kind of protections are available 

for them? And I have another question for Erin. You’ve said a lot 

about American companies doing great things—raising the bar, 

higher standards. I wonder what American companies have been 

doing to help their counterparts, the Chinese companies, raise their 

bars or help them improve their policies to further the protection 

of workers. I think that Chinese workers have done a lot for us and 

the world, producing goods and supplying all kinds of materials. 

Ms. OLDHAM-MOORE. Let me just say one thing. We’re really over 

time now, so I know some of the panelists will stay after and talk 

to you if you have further questions. 

Leslie, please address the informal economy. 

27 

Ms. CHANG. Yes. I didn’t specifically focus on workers in these 

other industries that you’re talking about. I think in general, most 

of these workers live in a gray economy in the sense that, as the 

other panelists mentioned, a lot of laws are being violated and 

things are being done under the table and they’re being paid less 

and treated less well than the law requires. So I think in terms of 

their own experiences, they’re just trying to cope in whatever ways 

they can to try to get the most out of their employer, or to find a 

better position if that doesn’t work. But in terms of protections for 

women working as nannies, or hairdressers, or karaoke girls, I 

don’t know specifically what’s being done. 

Ms. PERKINS. Thank you. Erin? 

Ms. ENNIS. I’ll be very quick and say that I don’t know that necessarily the Chinese companies are going to be praising U.S. companies for what they do on this front, but what our companies are 

doing is requesting and advocating that laws be enforced across the 

board, regardless of whether you’re a domestic company or a foreign company, and that’s labor, environmental, health, everything. 

And then also I think trying to drive home the point that the 

reason why there are labor, environmental, health, and safety 

standards isn’t because the government wants to intrude upon 

what you’re doing. It’s because those things actually make you a 

better and more productive company. 

It means that you have a product that is produced that does not 

have as many problems, and it means that your workers are actually able to work better because they’re not being overworked in 

one period of time, with nothing to do later on. The reason for all 

of those protections actually is that it protects workers, but it also 

means that companies do better business. So hopefully, at least by 

example, we are bringing something to the table on that. 

Mr. GROB. Well, I’d like to thank very much all of our panelists 

for this most illuminating discussion. Clearly, you’ve raised more 

questions than you’ve been able to answer, so that’s a sign of a 

good program. I would urge you, please, all to stay on top of the 

postings on the CECC Web site: www.cecc.gov. We’ll be following 

up on many of these issues. 

Thank you all again. [Applause]. 

[Whereupon, at 11:35 a.m. the roundtable was adjourned.] 

(29) 

A P P E N D I X 

30 

PREPARED STATEMENT

PREPARED STATEMENT OF EARL V. BROWN, JR. 

JUNE 19, 2009

INTRODUCTION

Thank you for inviting me to make this presentation. 

My name is Earl Brown, and I am a U.S. practicing labor and employment lawyer. I have worked on Chinese and South-East Asian labor and employment law 

issues for the AFL–CIO’s Solidarity Center for ten years. Prior to my work in Asia, 

I represented U.S. industrial unions and individual workers in all sorts of labor and 

employment law matters. I worked for such unions as the United Mine Workers and 

the Teamsters. 

Because China is so vast and diverse, outsiders like me tend to look at China and 

see reflections of our own experience. The rapid pace of change—a phenomenal 

growth rate for the past ten years—and the diversity of and lack of transparency 

in China often defeat our earnest efforts at objectivity. What follows, therefore, is 

inevitably the perspective of one U.S. labor lawyer with practical legal experience 

advocating for industrial workers in both the United States and Asia. My views also 

derive from many years of work by colleagues in the American and international 

labor movements, and in the Solidarity Center, to promote autonomous trade unions 

and rule of law frameworks that protect workers’ rights and interests in Asia. What 

follows is also accompanied by an awareness of the deterioration of worker rights 

enforcement in the West and that we are not always the model we would like to 

be, or represent ourselves to be. 

I, along with many others, view China as the most significant experiment in industrial relations in the global economy. Along with issues of the environment, the 

‘‘labor question’’ in China is a paramount one for China’s own development, for labor 

movements around the world and for the shape of any global economic recovery. 

This question of worker voice and power in the Chinese economy encapsulates all 

the broader governance questions China must address to achieve sustainable and 

balanced growth. U.S. trade unions and worker rights advocates, as well as many 

employers and policy makers, are acutely aware that developing viable industrial 

relations arrangements in China is necessary to sustaining Chinese and global economic progress. It is recognized that China (and other countries) cannot continue 

to rely on business models that depend upon evasion of labor standards and norms, 

and that leave working citizens without channels to effectively redress basic workplace injustices or sufficient purchasing power to afford a decent life for themselves 

and their families. 

THE CURRENT CRISIS

The impact of the current global economic crisis on China’s workers is not yet 

clear. There is little reliable data that would allow us to tell the story. By the time 

this current crisis manifested itself in China in 2009, China had already survived 

wrenching changes as it opened to the global economy and privatized much of its 

industrial economy. Millions of older state enterprise workers were laid off in the 

1990s and first decade of this century, just as millions of younger peasant workers 

were drawn to the new private sector. In three short decades, China created a huge 

new private sector employing millions of workers. As the state owned enterprises 

shed workers and the new private sector industrial geared up, so did labor strife. 

In the industrial North East, laid off state workers demonstrated for subsidies to 

survive in old age. In the new industrial zones throughout China, factory and construction workers hit the streets and ringed government offices to get back wages 

from employers. The dislocations occasioned by this new economic crisis may appear 

to many in China as yet more of the same—wrenching and continuous changes that 

can be survived. Many Chinese view these dislocations against a backdrop of astounding economic growth and modernization. 

China’s new private sector working class contains millions of young peasant workers migrating from rural areas to regimented work in the factories of China’s export 

zones. This new class also includes millions of young skilled, hi-tech and service 

workers. As this century dawned, China’s younger workers from both rural and 

urban settings began to harbor increasingly distinct notions of their rights as individuals and wage earners and became correspondingly assertive of those rights. 

Contestation for those rights at all levels—on the streets, in courts and in interVerDate Nov 24 2008 14:49 Jan 06, 2010 Jkt 000000 PO 00000 Frm 00032 Fmt 6601 Sfmt 6621 U:\DOCS\51190.TXT DEIDRE
31 

actions with often militaristic supervisors—increased, as did rights awareness campaigns by lawyers, women’s’ groups, legal aid societies and NGOs. 

Young rural women, often only teenagers, waved labor regulations that had been 

faxed to them by legal aid or worker rights groups in the faces of supervisors demanding the full legal measure of wages. Desperate workers often hit the streets, 

tying up traffic. Sometimes, workers followed abusive supervisors to their homes 

and exacted private vengeance. Young workers began to quit employers that offended them, or failed to accommodate their needs for scheduling or promotions. 

Younger workers began to ‘‘shop’’ for employers. Higher skilled and semi-professional workers also sought to bargain with employers and even, in the case of airline pilots, struck. As did dock workers and taxi drivers. The range of labor disputes 

expanded beyond recovering wages due but not paid, expanding to demands for 

improvements in wages, hours, working conditions and status and treatment. The 

intense level of labor strife in China required some responses by employers and government. 

To make the issue more pressing, campaigns by consumer, human rights and 

trade union groups in global export markets amplified and fueled labor controversy 

inside China. All this labor strife became a staple of both the Chinese and international media. In response, a significant number of employers in China, both foreign and domestic, and international brands, began programs of social work, relief 

and compliance with Chinese law. 

Yet, in all this furious activity, the entity charged with labor rights enforcement 

and giving voice to workers’ demands and interests, the All China Federation of 

Trade Unions (ACFTU), seemed largely silent and absent in the lives of workers. 

Although politically influential at the top, the ACFTU has not represented or defended workers in their actual struggles with employers. At least in other industrializing countries, large-scale industrialization and the accompanying concentration 

of masses of industrial workers with grievances has pushed workers into trade 

unions. Programs of social work and legal compliance alone were not enough to 

meet the level of controversy generated by unremediated industrial grievances. In 

those situations, employers and government were compelled to recognize and bargain with autonomous worker voice expressed in trade unions. There is little reason 

to think that industrial China will prove to be an exception to the growth of worker 

voice and the emergence of bargaining. 

By the time the 2009 economic crisis became manifest, China had already 

launched a series of controversial labor law reforms that strengthened the hands of 

ordinary workers vis-a`-vis employers. Those labor law reforms, enacted in 2008, did 

not go so far as to create a legal and industrial relations framework compliant with 

international labor law. Nonetheless, the 2008 reforms do lay the basis for enforcing 

some fundamental labor standards and have therefore evoked passionate employer 

opposition in a labor relations culture that already overwhelmingly favors the employer and is rife with employers who make labor law avoidance central to their 

business operation. 

In the 2008 labor law reforms, China sought to define the private sector ‘‘employment’’ relationship—what is an employer and what is an employee and what are 

their inescapable obligations and rights. This is the fundamental question in labor 

law, as most obligations and rights—ranging from the ‘‘employee’s’’ duty to safeguard the employer’s intellectual property interests to the ‘‘employer’s’’ duty to 

honor labor agreements when corporations are transferred—hinge on the definitions 

of these two words. The centrality of these definitions is confirmed by the great efforts expended by employers to structure industrial relations so that employers are 

not ‘‘the employers’’ but rather ‘‘contractors’’ or ‘‘purchasers’’ of naked assets and 

employees are not ‘‘employees’’ but ?‘‘independent contractors,’’ ‘‘subcontractors,’’ ‘‘interns,’’ ‘‘temps’’ or other legal creatures with lesser rights in the workplace. 

The linchpin of the 2008 reforms is the Employee Contract Law. That law was 

drafted to remedy specific socially disruptive labor abuses such as wide-spread wage 

arrearages, manipulations of corporate forms to shed labor law obligations for wages 

and benefits, and devices to classify workers as temporary or contract workers in 

order to avoid affording them the full legal protections due employees. The Contract 

Law lays down, for the first time, basic, universal norms: all workers, be they peasant workers, ‘‘temps,’’ contract workers, apprentices or probationary employees, 

regardless of geographical location or industrial sector, are entitled to certain protecVerDate Nov 24 2008 14:49 Jan 06, 2010 Jkt 000000 PO 00000 Frm 00033 Fmt 6601 Sfmt 6621 U:\DOCS\51190.TXT DEIDRE
32 

1 I am putting aside the application of this law to public employees and state-owned enterprise 

employees. 

tions and possessed of certain rights. Thus, the Contract Law protects most private 

sector workers.1

The Contract Law also expresses an unambiguous command to judges, arbitrators, mediators and bureaucrats to resolutely enforce the employers’ obligation to 

pay legal and contractually established wages in full and on time. This law further 

reflects a defined national policy favoring job security by erecting protections 

against arbitrary dismissal, by promoting long-term employment arrangements and 

by requiring due notice of and consultation about layoffs (retrenchments). The Law 

creates a clear right to severance pay for most workers with any seniority. The remaining 2008 legislative enactments seek to channel labor disputes into credible 

and efficient avenues for dispute resolution—against the backdrop of a judicial and 

administrative system that is a work in progress. Taken together, these reforms also 

define and expand the ACFTU’s role in representing workers in interactions with 

employers over a broad range of issues. 

Some employers in China, in the region and in the West have made alarmist forecasts about the economic impact of these laws on business. At the same time, other 

employers and their lawyers have begun to stress the need for strict adherence to 

Peoples’ Republic of China (PRC) labor laws and regulations, and forthrightly eschewed industrial relations policies founded on strategies of law avoidance and 

impunity. 

Whether this policy of strict adherence to legal norms succeeds in fostering compliance on a significant scale remains to be seen. Will a sufficiently large group of 

employers implement the advice of their lawyers or will they continue to be tempted 

by strategies of avoiding labor law obligations? The devolution of labor law obligations through chains of contracting remains a significant obstacle to compliance as 

well. 

Despite these questions, a significant group of employers and employer-side labor 

lawyers have recognized what many Chinese policy makers and worker rights advocates also understand: that labor law violations cannot continue as the order of the 

day. Many foreign investors and brands could not sustain the level of controversy 

sparked by production and business models premised on evasion of fundamental 

labor standards and norms. These forces, against the backdrop of labor strife, combined to propel the legal reforms described above that stiffened basic labor rights, 

charged the union with discrete and important functions in protecting workers 

rights and interests and provided avenues for redress of industrial grievances. Authoritative voices in the Western and Chinese employer bar, the set of lawyers advising employers operating in China, have now firmly counseled strict compliance 

with Chinese labor law as essential to sound business operation. 

Predictably, the 2009 crisis has prompted some employers and policy makers to 

call for suspension or outright repeal of the prior year’s reforms. Just as the initiation of labor law reforms in 2008 sparked a broad and open debate in China, and 

followed years of contention about the role of workers in China’s new society, the 

2009 economic crisis has set a new stage for rehearsals of the ‘‘labor question.’’ The 

signs appear to augur for a ‘‘Singapore’’ solution. During downturns in Singapore, 

there is a public ritual of sacrifice—ministers, among the most highly paid in the 

world, cut their salaries, managers do also, and government directed union announces corresponding cuts and reductions in hours. Even furloughs. The objective 

is to freeze or roll back wages while preserving jobs until the crisis passes. The Chinese often cite this Singapore model and there seems to be a temporizing truce now 

in China that entails avoiding mass layoffs in favor of wage and hour reductions 

and preservation of jobs, but no outright repeal of the 2008 reforms. However, it 

is clear that the economic crisis had caused export and related employers to shed 

millions of jobs by early 2009. 

Lawyers representing multi-national employers in China report that this picture 

is varied and localized—in some regions with more active official union presence or 

in sectors where employers seek to avoid employee turnover, these ‘‘Singapore’’ bargains are negotiated with the tools provided the union by the 2008 laws. Workers 

are furloughed or work light hours rather than being laid off. In other areas, local 

employers and their allies in the official union ignore the 2008 laws. Some local officials have gone a long way in assuring employers and investors that laws, criminal 

or civil, should not trouble them. For example, lawyers working with Chinese counterparts on securities and corporate regulations report that Chinese regulators have 

assured certain investors that they need not be concerned about enforcement actions 

or prosecutions in any area of regulation ranging from the environment to securities 

law, and of course, including labor. 

33 

2 In this respect, I do not mean to advocate for the notion sometimes ascribed to U.S. industrial relations proponents that labor relations must be conflictual and wholly severed from the 

state. The state is always central to this bargaining, because without legal pressure and appropriate state policy, employers will not bargain with workers. 3William E. Forbath, Law and the Shaping of the American Labor Movement, Harvard University Press, 1989, p. 10–36. 

There is also the question of the millions of peasant workers who went home last 

January during the Chinese New Year holiday and have stayed home. Will the 

countryside absorb them? Will these be the only peasant workers in world history 

to return to the farm and stay there while young? And what about the millions of 

young Chinese graduates leaving school this year for this job market? They are 

smart, educated and have marked ambitions about how to live their lives. Will they 

access jobs and salaries commensurate with their expectations? These questions, 

however, should not cause an underestimation of the demonstrated capacity to endure massive economic dislocation in China, or of the agility of the governing party. 

China in the past thirty years has faced and survived massive economic upheavals. 

To my mind, the current crisis presents a more intense version of the long standing internal debate about industrial relations and the power of workers in China. 

While there are voices calling for repeal of the 2008 reforms, there are other voices 

inside China that recognize that workers need rights, voice and enhanced worker 

purchasing power if socially sustainable development is to occur. That these voices 

inside exist is demonstrated by the 2008 reforms, and the enhanced space for worker rights and collective bargaining opened by those reforms. The question for us is 

how to engage those Chinese actors inside China calling for worker rights in a spirit 

of equality, deference to their agency and with mutual respect. 

A FOCUS ON INTERNAL CHINESE PRIVATE SECTOR INDUSTRIAL RELATIONS AND WORKER

RIGHTS FRAMEWORKS

Ascertaining how China will deal with the current crisis and its impact on workers 

requires an assessment of the state of worker rights enforcement and the capacity 

of China’s own institutions to provide worker voice. China’s industrial development 

has progressed to the stage where private-sector industrial relations expertise is required. 

Given the level of labor strife in China, even the Chinese government recognizes 

that there is a need is for private sector institutions to express worker power in the 

market economy so that peaceful and credible solutions can be negotiated directly 

by workers and employers rather then on the streets. This means that external 

worker and human rights advocacy and other external programs should now be supplemented by focused and practical industrial relations capacity building in the private sector. Part of this focus should be on how the ACFTU can adapt to the 

demands of representing workers vis-a`-vis employers in the private sector. 

This industrial relations phase of China’s development is a stage beyond discrete 

and localized legal aid experiments, the often sporadic support for labor rights 

NGOs, concocting better human resource systems or dissemination of media reports 

about labor abuses. Rather, China must now seriously contemplate industrial relations: the continuous negotiation of industrial and labor grievances in the private 

sector through autonomous and durable Chinese institutions capable of representing 

workers and employers in a balanced fashion.2 The current crisis just makes this 

long-time need more acute, and this is no time for going backwards. Otherwise, a 

period of aggravated disruption and strife may be the result of a retreat as workers 

seek redress. 

We do have reservoirs of unique expertise in the U.S. labor movement and industrial relations institutions in the unionized sector that can be of significant utility 

in today’s China. In the pre-New Deal United States, we experienced labor strife 

and violence as intense as any in present day China. A long debate over the role 

of workers, their unions and the state in our society resulted in a framework for 

negotiation of labor disputes and the creation of an industrial relations system that 

held sway for a long period.3

This system created a rich experience in plant, enterprise and sectoral dispute 

resolution that, despite limitations, enhanced the wages and purchasing power of 

industrial workers and was consistently capable of solving industrial problems 

peacefully. While we surely cannot plant the American flag in Chinese industrial 

relations, and should therefore never want to, this history has left us with expertise 

and skills which can be of use to Chinese worker rights actors in the current debate 

over the role of workers and the union in China in this crisis and thereafter. 

34 

4Governmentally authorized, funded and supervised ‘‘NGOs.’’ 

HOW TRADE UNIONS CAN HELP

Unions and Labor and Social Bargaining 

China’s work force is not monochromatic. It includes millions of ‘‘unskilled’’ industrial workers; many are internal migrants of marginal legal status and limited 

access to schools, health care and housing. It also includes millions of high-tech 

workers and knowledge workers, service employees, workers in supply chains for 

foreign brands, and state enterprise workers and civil servants. Labor relations at 

U.S., Australian and E.U. companies are distinctly different from labor relations in 

Japanese companies, which in turn are different from labor relations in overseas 

Chinese and Korean companies. Many Chinese workers are under the age of 30, and 

have distinctive attitudes toward work and their rights at work and in society. 

Each of these segments confronts different problems; in the private sector, however, too many workers do not have an accessible union to represent them. China 

has a web of official union institutions that parallel the state structure. The official 

union, ACFTU has not yet attained a wide presence in the private sector. 

However, the 2008 law reforms afford this union a huge role in labor relations. 

Not only does the union have an important advisory and gatekeeper role in formulating labor law and regulations, it also has an invigorated mandate to collectively 

bargain for workers, including migrant workers. Curiously, the 2008 labor law reforms cover most workers within the boundaries of formal employment. This is in 

contrast to a global tendency to create exceptions to laws governing formal employment of such sweep that they undermine labor law and support the creation of a 

precarious and vulnerable work force without rights and collective voice. The 

ACFTU is now specifically charged with insuring the rights of all workers covered 

by the law. But the law has not created an institutional stage for this larger, encompassing role. China is also staging Hamlet without the Prince of Denmark, because 

it has not yet developed the necessary autonomous worker institutions at the grass 

roots to implement collective bargaining. 

At the same time, China has experienced a significant growth of worker advocacy 

institutions and voices outside the union, in NGO worker centers, in GONGOs,4 in 

legal aid societies, in universities and in government regulatory agencies. These articulate voices for worker rights often provide a welcome contrast to quiescence in 

the official union, and may spur to the union to assume a more active role in worker 

representation and labor rights enforcement. Assuming a more active representational role in labor relations, however, will cause the official union to change profoundly. At a minimum, it will need to establish a grass roots presence; it must 

consult with and secure the allegiance of members; it must have a research department and it must organize employers under agreements in relevant labor markets, 

sometimes from the bottom up rather than from the top down. 

The importance of this new role for the union in this downturn is clear. The union 

has invoked Article 41 of the 2008 Employee Contract Law to require prior notice 

to it by the employer of all layoffs without exception. The union is further using the 

extensive notice and consultation provisions of Article 41 (governing mass layoffs of 

20 employees or over) to forestall and to initiate bargaining over layoffs in this 

downturn. 

Article 41 requires extensive consultation with the union and workers prior to any 

‘‘mass lay-off,’’ and protects certain older and ill employees from layoff altogether. 

Via this Article, the union in some places is forcing employers to bargain toward 

a Singapore solution—reduced hours and/ or furloughs instead of unilateral mass 

dismissals. Although this economic environment has forced many a Hobson’s choice, 

the law here does force the employer to bargain with the union and workers before 

initiating terminations. The employer cannot act unilaterally. Bargaining and labor 

negotiation is thus occurring prior to the creation of viable local unions and other 

similar industrial relations institutions. We cannot foreclose the possibility that the 

law will force the union into a more active representational role. 

Our labor movement can assist in enhancing the capacity of interested officers 

and staff of the ACFTU union and other worker rights advocacy groups to begin to 

step into the industrial relations roles assigned unions and workers by the 2008 

laws: 

• We can provide expertise on structuring unions internally to equip them for 

the functions of organizing, bargaining, and rights advocacy; 

• We can provide expertise and collaboration on occupational health and safety 

(OSH) technical issues, and on establishing worker capacity to enforce fundamental occupational health and safety norms via worker committees; 

35 

• We can share models on how to represent public sector employees; • We can help enhance the capacity of activists to provide legal and other assistance to injured workers and their families, and the families of deceased 

workers; 

• We can provide expertise on researching labor markets and employers; • We can provide training in bargaining; • We can provide training in organizing; • We can provide models for broad rights advocacy; • We have expertise in the distinct field of representing high-skilled technical 

workers and younger works in service industries and working as contractors. 

Labor movements in the United States and elsewhere are uniquely equipped to 

provide such assistance as they possess the specific and time tested bargaining and 

organizing expertise that academics, development firms and NGOs often lack. Mobilizing this experience during this crisis to assist internal actors advocating for worker 

rights in the Peoples’ Republic of China will enable us to participate in addressing, 

in a targeted way, the universal problems of the global economy—lack of stable employment, competition based on labor law avoidance and lack of worker voice and 

purchasing power—as well as assist our Chinese counterparts in addressing those 

very problems in China. 

China also needs a labor movement that is also capable of acting outside the formal employment relationship to advocate for and to represent marginalized informal 

sector workers. The U.S. labor movement has made some strides in giving voice to 

informal and marginalized wage earners by establishing worker centers and networks of advocates and service providers that operate outside traditional craft and 

other formal union categories. Interaction between U.S. and Chinese advocates for 

marginalized workers would be helpful to both sides. In this respect, the Solidarity 

Center has brought Chinese union lawyers and labor rights activists to U.S. worker 

rights centers and initiated a dialogue which we hope will continue on how to provide voice to and enforce law on behalf of marginalized workers. 

We should understand that E.U. and Japanese models of industrial relations are 

also relevant, and that we are not internal actors in China. Nonetheless, Chinese 

discourse about industrial relations has reached the stage where concrete private 

sector trade union expertise and skills are needed to assist in building capacity in 

Chinese labor institutions of all kinds—in the formal union, in worker centers, 

NGOs, and in legal aid institutions. This crisis has established that economics premised on the race to the bottom—on relentlessly depressing labor costs and living 

standards—is not sustainable. One answer to this imbalanced global economy is an 

invigorated Chinese labor movement. We should seek a role in reversing the race 

to the bottom with the aid of invigorated labor movements in China, both for the 

sake of U.S. workers and Chinese workers. This necessarily entails working appropriately with counterparts in China. 

LABOR, LAWYERS AND THE RULE OF LAW, EVEN IN CRISIS TIMES

The labor issue in China is also at the heart of a broad debate about human 

rights and the rule of law. Until 2008, many employers in China simply discounted 

labor law compliance. Other employers under imperatives to comply strictly with 

PRC law, such as foreign employers with their own legal requirements to comply 

with Chinese law, or those subject to consumer pressure, were constantly undermined competitively by employers who violated Chinese labor norms. This fueled a 

larger problem: a culture of impunity with regards to compliance with the law. 

While aspects of labor and employment law, such as the technicalities regarding 

workers’ compensation and work place health and safety may seem arcane, they are 

critical in China, where industrial death, disease and injury remain at high levels. 

Unregulated labor competition means that workers are maimed and slaughtered to 

save on labor costs. Insuring that effective OSH and worker compensation laws and 

regulations are in place and enforced is central to a rule of law culture in China 

as elsewhere. 

U.S. union lawyers and activists can assist Chinese counterparts in union, NGO 

and legal aid society staffs with concrete and particular practice-based advice on infusing rule of law norms into workers’ compensation structures, into regulation of 

work hazards in dangerous industries such as mining, and into providing for social 

security and protection within the framework of a private economy. 

Further, U.S. union lawyers and their colleagues can engage in a continuous dialogue on Chinese labor law compliance with U.S. and other international lawyers 

who represent multinationals in China. The Solidarity Center has initiated just 

such a dialogue through participation in relevant ABA committees and finds that 

foreign lawyers representing employers in China have openly committed to advising 

36 

compliance with PRC labor law and regulations. This is a major step—in which 

responsible employers and responsible employer counsel play an indispensable 

role—toward pushing back the culture of noncompliance and impunity in labor law. 

Foreign employers have thus often become a force for labor law compliance. Of 

course, there are many countervailing examples of foreign employers violating basic 

labor norms. 

As noted above, younger and more highly skilled workers in China seem to part 

of the growth of regional ‘‘civil’’ rights movement among younger workers in East 

and South East Asia. This movement arises from expectations about autonomy and 

individual choice that are becoming widespread among all younger workers, and 

among more skilled workers like IT workers and airline pilots. Many elements of 

the 2008 labor law reforms address the needs of young and more skilled workers, 

and they have been used by those workers, both spontaneously and with assistance 

of union and legal aid staff. Union lawyers and staff in the U.S. movement have 

attained considerable expertise in representing and reaching out to such workers 

and can be of assistance. 

There is a widely acknowledged problem in China with enforcement of judgments. 

In this respect, U.S. trade union lawyers can assist Chinese counterparts on the 

staff of unions, legal aid societies and NGOs to enforce wage and worker compensation judgments. In enforcing judgments, workers’ lawyers may find allies in the 

business community who also encounter this very problem. 

The need to include the labor movement in the core of rule of law dialogue has 

become even more acute given the massive increases in international and internal 

migration of workers in the past decade. These migrant peasant-workers are invariable legally disenfranchised and cut off from the most basic rule of law institutions. 

The international labor movement and its allies realize that the rule of law cannot 

co-exist with huge populations of marginalized and abused migrant workers cut of 

from justice institutions and any means of redressing fundamental deprivations of 

human and worker rights. The U.S. and international trade union movements can 

play, by virtue of their institutional networks, a broad role in providing forums and 

assistance to Chinese worker rights advocates regarding enforcement of rights 

across national boundaries, against foreign employers, or in enforcing the rights of 

the ever increasing number of Chinese guest workers abroad. No other institution 

can match the capacity of the international labor movement to reach across the 

globe and down into societies through affiliates. 

CONCLUSION

We should assist Chinese worker rights advocates in unions, law faculties, NGOs 

and legal aid societies to take up the invitation presented by 2008 labor law reforms 

to implement the mandate for collective bargaining. In doing so we will be contributing in a modest way to solutions for Chinese workers and workers everywhere in 

this global crisis sparked by a race to the bottom that has gone too low. 

Our assistance should be delivered with deference to the agency of our Chinese 

colleagues, and with complete awareness that only the Chinese will determine the 

contours of their labor relations system. Since this global crisis has exposed ‘‘Western’’ and Asian workers, and workers everywhere, to the dire effects of the unregulated race to the bottom, we can contribute to overcoming the crisis by technical 

assistance in the area of industrial relations and collective bargaining. 

Æ