The Law is the Law Except When its not the Law

The Labor Contract Law (I almost introduced it as new, but after more than a year, can it still be deemed as new?) was supposed to be the big 'un when it came to promoting worker's rights in China and keeping business behavior in line. There were lots of expectations and tons of blog posts written on the issue, but as can happen with Chinese law issues, things turned out very differently from what was originally expected.

Chinese law is a hell of a thing to deal with. Laws like the Labor Contract Law are written in an incredibly vague fashion, usually purposely, to allow for provincial and city governments to then interpret the law in a way that most fits their local situation. Basically, Chinese law serves as a US Republican states righters wet dream. Unfortunately, this often means that the local government is free to "interpret" the law in a way that completely removes it of any fangs (and usefulness) it may have had.

Dan Harris wrote a bit about how the economic crisis may have led to local governments ignoring much (or all) of the labor law as long as companies don't lay off workers and I've heard stories that confirm what he's stated. Over the Chinese New Year holiday, in the hinterlands of Beijing, I heard a number of tales that further confirms why any hope that the law would change things should go by the wayside.

Getting away from my friends who are all city folk white collar (often foreign owned) company employees, I heard countless stories from airport baggage handlers, factory workers, cooks, and other laborers about how the law is an afterthought. Out of about a dozen people, only two were not expected to work during the holiday and of those that had to work, none expected the trebled overtime pay that the law called for (though some did expect to receive some overtime pay). In many cases, the company's distribution of small gifts or food before the New Year was supposed to satisfy employees instead of their deserved overtime pay. All knew that this was against the law and that they could make claims, but all had seen what happened to others who made claims or were convinced the process was futile.

One year on, the "groundbreaking" law doesn't seem to be protecting the people who needed it the most.


Holkram said...

This sort of thing takes time..

I think it was Bill Gates who said that, 'We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten.'

Same might apply to the ECL.

b. cheng said...

good point, but isn't that always what we say about China? The main problem is how local governments water everything down (and how toothless the law(s)) are to start with...

Brad Luo 罗竞雄 said...

Isn't law the product of social policy? If the very premises upon which the was devised and based have changed, shouldn't the law change?

The counter argument, of course, is that it is up to the people who made the law to change it if and when social environments change. But I guess the Chinese legislators have more urgent laws to make instead of amending a one-year old law. Hence, the relaxed enforcement of the law seems to be the solution. Of course, that does not justify the sacrificing of workers' rights. But in China, sacrificing workers rights for economic development, at this point, is justifiable in the eyes of the government.

Vel said...

States' Rights has been a discredited ideology since about 1865, but don't let that stop you. In addition, the idea was that the federal legislature didn't make laws, the state legislatures did - not that the feds pass vague laws and let state bureaucrats interpret them.