Of specific concern for the ILO Committee on Freedom of Association were Articles 5, 8, and 9 of the Trade Union Law (1992) which: “… prevented the establishment of trade union organizations that are independent of the public authorities and of the ruling party, and whose mission should be to defend and promote interests of their constituents and not to reinforce the country’s political and economic system.” (International Labour Office, “310th Report of the Committee on Freedom of Association,” Official Bulletin Vol. LXXXI, 1998, Series B, No.2)
Under the 2001 amendments to the Trade Union Law, Article 5 is unchanged. It still states that: “… trade unions shall assist the people’s governments in their work and safeguard the socialist state power of the people’s democratic dictatorship….”
Articles 8 and 9 were rewritten and merged with Article 7, forming a new Article 7. The new Article 7 no longer makes reference to “safeguarding state property”, “socialist labour emulation drives”, and “labour discipline”. The removal of these references might be viewed a a partial fulfillment of the recommendations of the ILO Committee. Despite this, the obligation of trade unions to actively raise productivity and for workforce discipline continues to be embodied in law. More importantly, new sections added to Article 4 reinstate the offending sections of the original Articles 8 and 9, making the subordination of trade unions to the government and ruling Party more explicit.
In the 1992 version of the Trade Union Law, the opening paragraph of Article 4 stated:
Trade unions shall observe and safeguard the Constitution, take it as the fundamental criterion for their activities and conduct their work in an independent and autonomous way in accordance with the Constitution of Trade Unions of the People’s Republic of China.
Under the recent amendments the new opening paragraph of Article 4 reads:
Trade unions shall observe and safeguard the Constitution, take it as the fundamental criterion for their activities, take economic construction as the core, uphold the socialist road, uphold the people’s democratic dictatorship, uphold the leadership of the Chinese Communist Party, uphold Marxist-Leninist-Maoist-Deng Xiaoping Thought, uphold reform and opening up, and conduct their work in an independent and autonomous way in accordance with the Constitution of Trade Unions of the People’s Republic of China.
Significantly, this new opening paragraph of Article 4 uses language similar to the Constitution of Trade Unions, imposing political conditionalities which prevent the establishment of independent trade union organizations that do not support the ruling Party, state ideology or the current political and economic system. In addition, the obligation to “uphold reform and opening up” effectively prevents the formation of independent trade unions which oppose those elements of reform (as a set of state policies) which are detrimental to the interests of their members.
We should also be clear that all trade unions under the ACFTU must fulfill the obligations laid out in Article 4, requiring them to “… uphold the socialist road, uphold the people’s democratic dictatorship, uphold the leadership of the Chinese Communist Party, uphold Marxist-Leninist-Maoist-Deng Xiaoping Thought, uphold reform and opening up….” Regardless of perceived changes within the ACFTU and attempts to present it as a genuine trade union, it is clear that it is locked into the narrow interests of the ruling Party and state policy. This legal subordination of trade unions to the ruling Party, state ideology and reform policies effectively prevents any possibility of the expression of workers’ rights and interests through these official union structures.
As such the revised Trade Union Law not only reaffirms the ACFTU’s monopoly position, but also its subordination to the Party and state.
Another crucial limitation on workers’ rights concerns the narrow definition of these rights in accordance with the law. A new paragraph added to Article 2 of the Trade Union Law reads:
The All China Federation of Trade Unions and its trade union organizations representing the interests of staff and workers, shall uphold the legal rights of staff and workers in accordance with the law.
By narrowly defining workers’ rights in terms of their “legal rights”, the broader definition of workers’ rights, based on universal and fundamental principles, and embracing social, cultural and economic rights is systematically denied. For workers’ rights to be fulfilled, and for the right to organise and freedom of association to be full realised, trade unions must pursue workers’ rights more broadly, beyond narrow legal definitions.