In the 286th Report of the ILO’s Committee on Freedom of Association certain sections of the Trade Union Law (1992) were interpreted as contravening the principle of freedom of association. The Committee requested that the PRC Government take steps to modify the relevant provisions of the Trade Union Law, but in its 310th Report it was observed that no action had been taken. The Committee’s 316th Report in 1999 once again noted that no action had been taken by the PRC Government and reiterated its request for revisions to the Trade Union Law.

In particular the Committee identified the reference in Article 4 to the controlling power of the National Congress of Trade Unions as a serious constraint “on the right of unions to establish their own constitutions, organize their activities and formulate programs.”  (International Labour Office, “310th Report of the Committee on Freedom of Association,” Official Bulletin Vol. LXXXI, 1998, Series B, No.2)

The crucial point here is that Article 4 of the Trade Union Law actively prevents the formation of independent trade unions, while establishing the legal basis of the trade union monopoly held by the ACFTU. Section 2 of Article 4 of the Trade Union Law (1992) stated:

The National Congress of Trade Unions formulates or amends the Constitution of Trade Unions of the People’s Republic of China which shall not contravene the Constitution and other laws.

Following the amendments passed on October 27, 2001, this section of Article 4 remains unchanged. As a result Article 4 retains the role of the National Congress of Trade Unions in controlling the internal structure and activities of all trade unions, and in subordinating these trade unions to the Constitution of Trade Unions of the PRC. Under the ‘General Principles’ of the Constitution of Trade Unions (adopted by the 13th National Congress of Chinese Trade Unions on October 24, 1998) it is stated that:

Guided by Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping’s theory, the Chinese trade unions implement the Party’s basic line of centering on the economic construction, upholding the Four Cardinal Principles and adhering to the reform and opening-up….

In addition to securing the legal-political subordination of trade unions to the ruling Party and ideology (discussed further below), the Constitution of Trade Unions determines the internal organizational structure and program of all trade unions and their institutional affiliation to the ACFTU. This effectively reinforces the existing trade union monopoly of the ACFTU, and in doing so contravenes the principle of freedom of association.

Again we can see that the revised Trade Union Law consolidates the ACFTU’s trade union monopoly and prevents the establishment of trade unions independent from it. This restriction already existed in Article 12 of the Trade Union Law (1992), which concluded with the statement that:

The All-China Federation of Trade Unions shall be established as the unified national organization.

Following the revisions passed by the NPC on October 27, 2001, this provision was moved to Article 10, without any change in wording.

On February 28, 2001, the Chinese Government ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), which it had signed on October 25, 1997. In a major setback for workers on the mainland, the Government maintained a reservation on the implementation of Article 8 of the Covenant, which guarantees trade union rights, including freedom of association and the right to strike. The official explanation for this reservation was that existing provisions in China’s Constitution, Trade Union Law and Labor Law provided sufficient guarantees for workers. Yet only eight months later, the passage of the revised Trade Union Law on October 27, 2001, demonstrated very clearly that the Chinese Government has no intention of improving the protection of worker and trade union rights in accordance with international principles.