Informe provisional - Informe núm. 387, Octubre 2018

Caso núm. 3184 (China) - Fecha de presentación de la queja:: 15-FEB-16 - Activo

Allegations: Arrest and detention of eight advisers and paralegals who have provided support services to workers and their organizations in handling individual and/or collective labour disputes, as well as police interference in industrial labour disputes

1. 228. The Committee last examined this case at its October–November 2017 meeting [see 383rd Report, paras 135–170].
2. 229. The Government sent its observations in communications dated 6 March and 26 April 2018.
3. 230. China has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 231. At its October–November 2017 meeting, the Committee made the following recommendations in relation to this case [see 383rd Report, para. 170]:
   • (a) The Committee urges the Government to transmit a copy of the court judgments in the cases of Mr Zeng Feyiang, Ms Zhu Xiaomei, Mr Tang Huanxing and Mr Meng Han without delay. It further requests the Government to provide detailed information on the alleged harsh treatment of the labour activists while in custody, and, in particular, alleged numerous interrogations underwent by the accused.
   • (b) The Committee requests the Government to provide detailed information on the alleged obstacles to the exercise of freedom of association in the country, in particular, the prohibition to join or form trade unions outside the ACFTU structure; the use by the Government of public order laws to crack down on activists and trade unionists, and the impossibility for a worker to participate in a legitimate strike or demonstration without violating Chinese law that prohibits the disturbance of public order.
   • (c) The Committee requests the Government to confirm that Mr Deng and Mr Peng are no longer under investigation and will not be prosecuted.
   • (d) Regretting that no information has been provided regarding the alleged beating and injuries suffered by workers and their representatives at the shoe factory, as well as Mr Chen and Zhu Xinhua (labour dispute at the bag factory), the Committee requests the Government to provide detailed information on the outcome of the relevant investigations.
   • (e) The Committee requests the Government to keep it informed of the outcome of the investigation into the alleged incident involving Mr Meng’s father and, in particular, to indicate whether any link is established with Mr Meng and his allegations of detention due to his engagement in workers’ rights advocacy activities.

B. The Government’s reply

1. 232. By its communications dated 6 March and 26 April 2018, the Government informs that a special investigation into the allegations in this case had been carried out. With regard to the alleged cruel treatment of Mr Zeng and others during their detention, the investigation revealed that they were not subject to cruel treatment while in detention. The Government adds that the public security authority deals with cases in strict conformity with the relevant legal provisions and that the rights of those concerned were sufficiently guarded during the hearing process.
2. 233. The Government reiterates that the national Constitution provides that citizens enjoy freedom of speech, press, assembly, association, procession and demonstration. Furthermore, labour and trade union laws also provide that workers have the right to participate in and organize trade unions in accordance with the law, and specify legal requirements for exercising these rights. The Government also points out that, in February 2001, the Standing Committee of the National People’s Congress of China ratified, without reservation, the International Covenant on Economic, Social and Cultural Rights, Article 8, paragraph 1(d) of which provides for the right to strike exercised in conformity with the laws of the country. The Government reaffirms that the implementation of the aforementioned laws is protected by constitutional provisions that safeguard the exercise by citizens of their rights of assembly, procession and demonstration according to law, and maintains social stability and public order. The Government further indicates that to implement the abovementioned rights, the Law on Assemblies, Processions and Demonstrations sets outs procedures for such events.
3. 234. The Government further indicates that the investigation into the alleged beating of workers revealed that the local public security authorities in Guangdong Province did not receive any complaints reporting cases of beating of workers at the Lide Shoe Factory (the shoe factory), nor of Mr Chen, Ms Zhu Xinhua and others. Regarding the alleged destruction of the door in Mr Meng’s rented house, the Government indicates that local public security authorities worked promptly on the case and that after several visits and investigations there has been no effective lead to identify the suspect. The Government also informs that the local authorities are continuing the investigation in accordance with Chinese law and that they will provide further information on the progress in a timely manner.
4. 235. The Government also provides information on the trade union movement in China. It indicates, in particular, that the current trade union system has historical origins, is the result of the independent choice of trade unions and is compatible with national circumstances. Trade unions follow an organizational leadership principle of combining industrial and geographical lines. A federation of trade unions is established at the provincial, prefectural and county levels. The All-China Federation of Trade Unions (ACFTU) was formed as a united national centre and is the umbrella body of all local federations of trade unions and national industrial unions. The Government emphasizes that, under such a system, trade unions have achieved remarkable progress in protecting the rights and interests of workers. According to the Government, trade unions have constantly strengthened their grass-roots organizational bases. By the end of September 2017, there were 2.809 million grass-roots trade unions with a membership of 303 million workers, 140 million of which were rural migrant workers. A total of 2.46 million collective agreements have been concluded, covering 6.441 million enterprises and 280 million workers. Furthermore, 2.252 million enterprise or institution unions have put in place the workers’ congress or the workers’ assembly system, with 250 million workers involved; 2.2 million unions have set up a corporate transparency system, with the participation of 240 million workers. The Government considers that trade unions in China play an important role in the development of workers’ rights in the country and building harmonious and stable labour relations through actively pushing for legislation affecting the rights and interests of workers and proactive employment policies; promoting better consultation and coordination mechanisms involving trade unions, government and enterprises; stepping up collective bargaining practices; strengthening the monitoring and analysis system for labour relations dynamics; and helping and supporting the working poor, delivering services to rural migrant workers, etc.

The Committee’s conclusions

1. 236. The Committee recalls that this case concerns allegations of arrest and detention on charges of “gathering a crowd to disturb public order” of advisers and paralegals who have provided support services to workers and their organizations in handling individual and/or collective labour disputes. It recalls, in particular, that it expressed its concern over the heavy sentences imposed on Mr Zeng Feyiang (three years suspended), Ms Zhu Xiaomei (18 months suspended), Mr Tang Huanxing (18 months suspended), and Mr Meng Han (21 months). The Committee had previously noted the complainant’s allegations which, the Committee considered, “would seem to indicate that the four activists were indeed indicted for having exercised genuine workers’ representative activities” [see para. 163 of the 383rd Report]. Given the serious nature of the allegations, to allow it to undertake an objective examination, the Committee had urged the Government to transmit a copy of the judgments in cases concerning Mr Zeng, Ms Zhu Xiaomei, Mr Tang and Mr Meng without delay. The Committee deeply regrets that the Government has yet to supply a copy of the court judgment.
2. 237. The Committee notes, however, that the judgment regarding the four activists is now publicly available. The court found that they directly participated in the stoppage, blocked the factory entrance and disturbed the production order. The court further found that some workers prevented others from working normally and insulted those who wanted to work. As a result, production was paralyzed and led to a serious financial loss to the company (US$136,000). The court considered that the advisers should have resorted to legal channels to resolve their dispute instead of obstructing the intervention of public authorities and inciting workers to engage in work stoppage and disturbing public order, thus violating the legal interests of others and the company.
3. 238. The Committee recalls its emphasis from its previous examination that this case must be seen in the context of the overall legislative framework which does not allow workers to join or form trade unions unless the local unions affiliate with the ACFTU. It further recalls the complainant’s allegations that: the Government has frequently used public order laws to crack down on legal activists and trade unionists; that it is not possible for a worker to participate in a legitimate strike or demonstration without violating Chinese law that prohibits the disturbance of public order; and that it is common for the prosecutor and the court to view industrial action taken by workers as public security violations rather than as the exercise of fundamental rights. Given the serious nature of these allegations, the Committee had urged the Government to provide detailed observations thereon. The Committee notes that the Government provides a detailed explanation of the national trade union system and the role trade unions play in protecting the rights and interests of workers. The Committee notes, in particular, the Government’s indication that the ACFTU is a united national centre and is the umbrella body of all local federations of trade unions and national industrial unions. The Committee recalls in this respect that the right of workers to establish and join organizations of their own choosing in full freedom cannot be said to exist unless such freedom is fully established and respected in law and in fact. The right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 472 and 475]. The Committee considers that the existence of a workers’ organization should not constitute an obstacle to the establishment of another, if the workers so wish, and requests the Government to keep it informed of measures taken to ensure the right of all workers to form and join the organization of their own choosing.
4. 239. The Committee further notes the Government’s indication that China has ratified the International Covenant on Economic, Social and Cultural Rights, and that the implementation of trade union rights is protected by the Constitution and the national legislation, including the Law on Assemblies, Processions and Demonstrations. While noting the information provided by the Government, the Committee observes that it does not reply to the complainant’s allegation that in practice, the Government has frequently used public order laws to crack down on legal activists and trade unionists; that it is not possible for a worker to participate in a legitimate strike or demonstration without violating Chinese law that prohibits the disturbance of public order; and that it is common for the prosecutor and the court to view industrial actions taken by workers as public security violations rather than as the exercise of fundamental rights. Bearing in mind the court findings in the above-mentioned judgment regarding the four activists, which would appear to limit the exercise of the right to strike, the Committee requests the Government to reply to these specific allegations by specifying the conditions for the effective exercise of the right to strike in law and in practice.
5. 240. The Committee further recalls that it had requested the Government to provide detailed information on the alleged harsh treatment of the labour activists while in custody, and, in particular, alleged numerous interrogations of the accused. The Committee notes that the Government indicates that a special investigation into the situation was carried out and revealed that Mr Zeng and others were not subject to cruel treatment while in detention. The Government reiterated that the public security authority deals with cases in strict conformity with relevant legal provisions and that the rights of those concerned were sufficiently safeguarded during the hearing. The Committee requests the Government to transmit a copy of the investigation report.
6. 241. In its previous examination, the Committee had also regretted that no information had been provided by the Government regarding the alleged beating and injuries suffered by workers and their representatives at the shoe factory, as well as Mr Chen and Ms Zhu Xinhua (labour dispute at the bag factory) and requested the Government to provide detailed information on the outcome of the relevant investigations. The Committee notes the Government’s indication that the investigation revealed that the local public security authorities in Guangdong Province did not receive any complaints reporting cases of beating of workers at the shoe factory, nor of Mr Chen, Ms Zhu Xinhua and others at the bag factory. The Committee recalls that all allegations of violence against workers who are organizing or otherwise defending workers’ interests should be thoroughly investigated and full consideration should be given to any possible direct or indirect relation that the violent act may have with trade union activity. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Compilation, op. cit., paras 101 and 105]. The Committee considers that even in the absence of complaints to the local authorities, the allegations in this case should be drawn to the attention of the relevant authority for full investigation. The Committee therefore urges the Government to conduct a full investigation into these allegations without further delay and to keep it informed of the outcome.
7. 242. Regarding the allegations of pressure suffered by the relatives of Mr Meng, the Committee notes the Government’s indication that local public security authorities worked promptly on the case of the alleged destruction of the door in Mr Meng’s rented house, and that after several visits and investigations there has been no effective lead to identify the suspect. Local authorities are continuing the investigation in accordance with Chinese law and will provide further information on the progress in a timely manner. The Committee requests the Government to keep it informed of the developments in this regard.
8. 243. Finally, the Committee once again requests the Government to confirm that Mr Deng and Mr Peng are no longer under investigation and will not be prosecuted.

The Committee’s recommendations

1. 244. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of measures taken to ensure the right of all workers to form and join the organization of their own choosing.
   • (b) The Committee requests the Government to reply to the specific allegations in relation to the right to strike in practice, including the frequent use of public order laws to restrict its exercise, by specifying the conditions for the effective exercise of this right in law and in practice.
   • (c) The Committee requests the Government to transmit a copy of the report of the investigation into the alleged harsh treatment of the labour activists while in custody and numerous interrogations of the accused.
   • (d) The Committee urges the Government to conduct a full investigation into the alleged beating and injuries suffered by workers and their representatives at the shoe factory, as well as Mr Chen and Ms Zhu Xinhua (labour dispute at the bag factory) without further delay and to keep it informed of the outcome.
   • (e) The Committee requests the Government to keep it informed of the outcome of the ongoing investigation into the destruction of the door in Mr Meng Han’s rented house.
   • (f) The Committee once again requests the Government to confirm that Mr Deng and Mr Peng are no longer under investigation and will not be prosecuted.