The China Labour Code: its major issues and improvement
University of British Columbia
Master of Laws - LLM
Under the transition to a socialist market economy, labour relations in China have become more and more complicated and varied with the accelerating privatization of the ownership of enterprises since the early 1990's. In order to adapt to the challenges posed to labour relations, to render labour relations harmonious and to protect the labourers' lawful rights and interests effectively, the Chinese government implemented the comprehensive Labour Code on January 1, 1995. Unfortunately, there are a lot of contradictions within the Code which certainly weaken its protecting power. The hypothesis of this study is: the Labour Code is a product of economic reform. The dilemma within Deng Xiaoping's theory of economic reform, namely the "grasping with two hands", is the cause of the dilemma within the Labour Code. This thesis will analyze the contradictions which exist in the Code and how those contradictions affect the provisions governing protection of labourers. The major contradictions are mainly as follows: the Code intends to delegate more protection power to workers by strengthening the Communist Party of China (CPC) political control, and intends to give more power to trade unions without loosening or decentralizing any CPC control over trade unions. All such contradictions which result from Deng Xiaoping's reform theory of "grasping with two hands" largely weaken the initial purpose of the Code by making trade unions dependent on the CPC's leadership and on employing units and making no provision for collective bargaining rights. This study argues that the Chinese Labour Code includes two major factors: the labour contract system and the resolution mechanism of labour disputes, and two major issues: trade unions' lack of independence and labourers' lack of collective bargaining rights. Through the comparison between the Chinese Labour Code and the B.C. Labour Code, it is revealed that the Chinese Labour Code focuses on the labour contract system and conditions of employment while the B.C. Labour Code focuses on collective bargaining and the independence of trade unions; and the Chinese Labour Code focuses on the results of a collective contract while the B.C. Labour Code focuses on the process of reaching a collective agreement. The comparison of trade unions reveals that trade unions are much more independent and representative of employees under the B.C. Labour Code than they are under the Chinese Labour Code. Also, the study reveals some various assumptions within two Codes. The different Labour Codes protect the labourers' lawful rights and interests in different ways. Finally, this study has put forward some suggestions for the improvement of the Chinese Labour Code in the future. The basic suggestions are as follows: to set a boundary line between employers and employees in order to let trade unions be independent, to establish a collective bargaining mechanism and to provide collective bargaining rights for labourers in the Chinese labour law system.
Law, Peter A. Allard School of