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 Whistleblowers Need Protection


CHINA Human Dignity

Human Rights Without Frontiers Int'l

'Even though I'm only primary school educated, my knowledge of filing labor disputes is better than some professional lawyers. There are too many people asking me to help them file their lawsuits, that I can't handle them all'. These are the words of Zhu Xingyin, a farmer from Sichuan province's Dazhu County. He currently has over 600 lawsuits filed on behalf of migrant workers to help them recover salary, get financial compensation, and receive workplace injury subsidies. In total, the lawsuits seek to recover 1 million RMB, and every year he will secure no less than 200,000 RMB. Zhu Xingyin is part of a breed of professionals called "citizens' agents" who have appeared in China in recent years specializing in helping migrant workers defend their rights. They were originally migrant workers themselves, who in the process of protecting their own rights and helping friends and relatives gained a lot of legal knowledge and skills. By charging only small fees and effectively protecting the rights of many migrant workers, they have acquired a good reputation and have gained people's trust. Normally they engage in what we call "risky agency business". They charge low fees and promise no to ask for any payment until the lawsuit is won. This has channeled the spontaneous resistance of migrant workers from outside of the formal structure in the legal system. To a certain extent they have alleviated several problems faced by migrant workers, namely: no means to lodge complaints, high litigation costs, little hope of getting a court decision, and more generally that migrant workers previously had nowhere to turn. At the same time, these citizens' agents have aroused the unease of various government bureaus who are concerned about how to develop the positive side of these agents' role, and want to pre-empt their negative impact. To the authorities this is a management problem that is still in search of a solution.

From protecting one's own right to professional rights protection

Associate chief justice of Shenzhen's Bao'an District Court Feng Jian believes that with a few exceptions few of them have legal work experience. The majority are originally migrant workers. Through their own personal experiences they have learned a certain amount about the law and litigation procedures. After helping their friends to bring lawsuits they realized that it could be possible to make some money, so they began to act as "citizens' agents" and undertook labor arbitration or litigation on behalf of workers. After wining a lawsuit they take a pre-negotiated fee set as a percentage of the compensation received by the worker. That is why they have been well received by migrant workers.

Zhang Youhe, a professional rights protector from Sichuan province had this to say: "I left home to work in 1986. I have been imprisoned at the brick kilns in Shanxi and I've been beaten by a cruel boss in Hubei. I've experience all of the wrongs that migrant workers encounter." In 2000, Zhang Youhe was dismissed without cause from a position he had held at an enterprise in Shenzhen for many years. He spent 2,500 RMB on legal fees to hire a lawyer to file a lawsuit. But the enterprise boss bribed the lawyer and so his case was defeated. He sought a retrial but did not have enough money for a lawyer. This time he studied labor law on his own, and ended up winning. After this he helped two people from his hometown with legal cases, and they both won. In November of 2005 he started specializing in helping people file labor dispute lawsuits. Right now he is handling more than 80 cases of administrative lawsuits, suing administrators for not performing their duties, or for incompetence. He has yet to lose one case. Currently, there are no fewer than 500 people in the Pearl River Delta working professionally as rights protectors, and among them more than 20 have significant influence in specific legal areas.

According to this reporter's investigation some of these migrant worker professional rights protectors have registered at labor dispute counsel centers with the Ministry of Commerce; after getting their registration they open their doors wide for business. Some others work under law firms, and start working as "legal assistants." Yet some others do not go through any of this kind of paperwork and get businesses through people from their hometowns and through word of mouth from former customers.

Behind the emergence of the community of "citizens' agents" is the awakening of the consciousness of migrant workers. The costs in terms of time and money for engaging in rights protection are often difficult for migrant workers to bear.

Our investigation has revealed that according to China's "one arbitration, two trials" system, a worker who was trying to recover 1,000 RMB in salary would have to pay at least 920 RMB in expenses to complete all the procedures. They have to spend 11 to 21 days which is equal to 550 to 1,050 RMB in lost wages, and this does not include living, food, and transportation costs for the worker. Workplace injury cases are even more difficult, as there are up to 19 procedural steps which can take three and a half years to complete.

The high cost of legal rights protection has caused some aggrieved migrant workers to give up their legal rights to appeal and go to seek extra-legal channels.

Welcomed by migrant workers, but headaches for the bosses

Our investigation has revealed that these professional rights protectors will take 50 to 1,000 RMB up front in order to cover the costs of transportation, materials, and other costs. After winning a case, they will charge an amount that had been agreed upon, but usually it will not be more than 6% of the total settlement. If they lose the case all the fees are returned. Because this approach doesn't require migrant workers to shoulder any risk, business has been brisk.

Because their salary depends on the number of cases they take up as well as their rate of success, these professional rights protectors often take the initiative and will go wherever there are labor disputes. They will then help migrant workers to think through the problem, come up with new ideas, and provide them with legal counsel. Some will print out appeal forms and distribute them to workers along with information on what sorts of behavior constitutes a violation of their rights and what sort of legal compensation they might expect.

For example, some "citizen's agents" will put information on the back of their business cards: if you encounter the following situations, contact me:

Is it possible to get back two years of unpaid overtime salary and economic compensation through the Labor Inspectorate without paying arbitration fees? After working for ten years, what sorts of special labor protections are there?

With the emergence of professional rights protectors, migrant workers' rights awareness has risen. Increased initiative in pursuing the protection of their rights has caused a huge number of previously hidden labor disputes come to the surface. Enterprises could not handle so many complaints from workers. The problem of excessive overtime is widespread in Shenzhen's enterprises, and many professional rights protectors specifically look for evidence and report them to the labor bureau. In April of 2005 an electronics factory in Shenzhen forced more than 500 employees to work excessive overtime, which a professional rights protector then reported to the labor bureau. The labor bureau originally fined the enterprise 100,000 RMB, but after the problem was rectified the fine was reduced to 20,000 RMB.

Yang Zhiyi, chief of Shezhen's Bao'an District Labor Bureau Labor Inspection Team commented that last year they processed an average of 8 appeals every day. The professional rights protector community has caused an obvious increase in the number of complaints workers are filing against their employers for illegal activity. The labor bureau's ability to punish enterprises has also been strengthened. This has gradually increased the cost of violation the laws for enterprises and forced them to operate legally.

Mixing the good and bad: social disputes on the rise

In the course of the investigation, this reporter discovered that although the professional rights protector community has helped migrant workers with some difficult rights protection issues, because the community has grown so quickly is composed of both virtuous and unscrupulous individuals. Because right protection methods can be either good or bad, this has led to suspicion on the part of some government agencies.

Xu Jin, vice-director of Shenzhen's Bao'an District Labor Bureau commented that professional rights protectors have not received formal legal training and that they have not received much education. Because of this and the fact that most of their outfits are "mom and pop stores" or "brotherhood stores" with complicated backgrounds they have a very high turnover rate. In order to earn more money, certain professional rights protectors will encourage workers to lodge collective appeals, block the roads, and tie up the courts, and this has a serious negative impact on the investment environment.

Feng Jian said that these "citizens' agents" have raised the expectations of migrant workers, which has occasionally led to increased difficulty for the courts in resolving cases. This causes labor disputes to drag on, escalate and worsen. Feng Jian said that although these rights protectors had reduced the cost of rights protection for migrant workers, they have increased social and judicial costs.

But some "citizens' agents" believe that they have provided the 17 million migrant workers in the Pearl River Delta with quick, inexpensive, and convenient legal services. This has caused the workers to use the law, rather than to strike, block roads, or other radical means, and this has contributed to social stability.

Qin Haixia, Zhang Youhe, Zhang Xuewu and other member of the professional rights protector community think that their activities have raise the number of arbitration and lawsuits to a new height and this has changed the long-standing passivity of labor inspectors. The inspectors have been forced to continue to learn and to increase their administrative capabilities. At the same time, they have ratcheted up social pressure on law-breaking enterprises. The reduction in law violations within Shenzhen's enterprises and increased improvements for workers cannot be separated from the actions of the professional rights protection community. These "citizens' agents" are very dissatisfied with measures the government and courts have taken to restrict their activity, and believe that this only serves to protect enterprises' illegal employment activities.

The "standing army" is no where to be seen, while the "guerillas" have new tricks up their sleeves.

Labor bureaus and local courts in the Pearl River Delta with it good legal environment and advanced legal consciousness have provided the "citizens' agents" with space to exist. Additionally the gap between migrant workers' actual need and what the specialized legal services institutions can provide has given them the soil to grow.

Xu Jin noted that in Bao'an District there are 300,000 permanent residents, more than 5 million migrant workers, 60,000 enterprises of various size, but only 400 professional lawyers. The inadequacies of the "standing army" have inevitably produced a "guerilla".

In the course of investigation, this reporter discovered that professional lawyers are often unwilling to accept labor dispute cases because they require a large investment of time and remuneration is low. In addition, their high fees are too high for migrant workers. The primary forces of labor dispute litigation in the Pearl River Delta have already been replaced by the "citizens' agents". Last year the Shenzhen Lawyers' Association submitted a proposal to the legal affairs office in which they expressed hope that they could rid themselves of the labor dispute cases which take up so much time and produce such little benefit.

Zhang Youhe, Qi Yunhui and other "citizens' agents" said that because of absence of economic incentive, professional lawyers are not very knowledgeable of labor laws. The higher the prestige of a lawyer, the less likely the lawyer is willing to take up labor dispute cases and willing to litigate on behalf of migrant workers. Comparatively speaking, these "citizens' agents" rights protection skills are somewhat better, and by practicing they have discovered a series of new rights protection methods. These include "labor inspection" and "administrative litigation" as part of the practice of rights protection. Shenzhen's Bao'an District Labor Bureau and local courts both admit that "citizens' agents" have discovered a number of legal and effective tricks in rights protection processes that they themselves had never thought of.

The sincerity of bureaucracies' "People First" policy put to the test

In the course of investigation, this reporter discovered that this professional group is a social force that has a deep mass base and space to exist in the Pearl River Delta. At present, its development is coming to a crossroads; relevant government agencies should actively face up to this reality and allow it to become a beneficial supplementary institutional mechanism to the system for protecting the rights and interests of migrant workers.

Currently, the Guangdong labor bureau is formulating a plan in how to tighten management of this "citizens' agents" community. The most significant feature of the plan is to severely limit their activities. On March 15th of this year (2007), Shenzhen's Bao'an District Peoples' Court established new regulations which place various restrictions on the ability of citizen's agents to participate in lawsuit proceedings. Additionally, it requires that "citizens' agents" and their clients must appear in court to sign a statement saying that all legal work will be pro bono. After this, no Bao'an District Courts will allow people with the identity of "citizens' agent" to participate in litigation. Shenzhen's legal and commerce departments have also been united in "cleaning up" labor disputed legal consultation services. Although this has reduced the huge volume of labor administration cases, the inability of other legal services to meet the demand has increased the difficulty of rights protection for migrant workers.

The actions of the government and courts have aroused a strong reaction from the rights protector community. They have repeatedly gone to appeal to relevant government agencies, and have sought support from various places. Because the leading members of the "citizens' agents" community all have websites, some foreign organizations have initiated setting up contacts and providing them with financial support. These organizations have taken the lawsuits out of context and used them to attack China's labor system, which has created a negative influence in the international community.

Xu Jin said, "If the legal services of the government are inadequate, and migrant workers' legal rights protection needs are not being met, it is very difficult to ban this rights protection community. The most important matter is to begin to manage and control this group, we cannot continue to let things slide."

The vice-chair of the Guandong Federation of Trade Unions believes that the "citizens' agents" should not be seen in the same light as "black lawyers" or "barefoot lawyers" They are in integral part of the resources available to migrant workers, and to keep on suppressing them is not a good approach. Forcing the "citizen's agents" into becoming oppositional is not as good as "co-opting" them into the union and other government agencies. They should be organized so that they can participate and assist the government or professional lawyers in their work to protect the rights of migrant workers. Their remuneration can be based on the outcome of their rights protection work, and in this way their active participation can be more effectively brought into play.

(*) This article we received from the International Trade Union Confederation is from a Flemish publication dated 30.10.2007 that we have not been able to identify

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