LEGALCULTURE OFMIGRANTCONSTRUCTIONWORKERS IN CHINAbyJuan LiM. of International Business, The University of Melbourne, 2009MBA, Wuhan University, 2005B. Law, Zhongnan University of Economics and Law, 2000B. Finance, Zhongnan University of Economics and Law, 2000ADISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFDOCTOR OF PHILOSOPHYinTHE FACULTYOF GRADUATEAND POSTDOCTORAL STUDIES(Law)THE UNIVERSITY OF BRITISH COLUMBIA(Vancouver)June 2017© Juan Li, 2017iiAbstractIn the past more than three decades, migrant workers have become an increasinglysignificant force in promoting social and legal changes in China. As such, their legalculture is worthy of studying for many reasons. This study focuses on the migrantconstruction workers’ values, ideas, opinions, and attitudes with regard to the generallegal system and legal reform in China, especially with respect to the three importantaspects of employment relations, including labour contracts, labour dispute resolution,and trade unions, in the context of market economic reform and globalization. Based onan analysis of primary data collected from fieldwork undertaken in Hubei Province, a lessdeveloped province in central China, this study explores that imported Western legalnorms, such as rule of law, rights, contract, litigation, trade unions, etc., so far, havelimited influence on the popular legal culture of Chinese migrant workers, at least in theconstruction industry; while the traditional local values in China, such as family ethic,morality, and harmony, still play a dominant role in their daily lives.iiiPrefaceThis dissertation is original, unpublished, independent work by the author, Juan Li. Thefieldwork reported in the dissertation was covered by UBC Ethics Certificate number isH14-02395.ivTable of ContentsAbstract................................................................................................................................iiPreface.................................................................................................................................iiiTable of Contents................................................................................................................ivList of Tables ....................................................................................................................viiList of Figures...................................................................................................................viiiAcknowledgements.............................................................................................................ixDedication............................................................................................................................ xChapter 1 Introduction..................................................................................................11.1 Overview............................................................................................. 21.2 The Main Issues..................................................................................71.2.1 Legal Culture......................................................................... 71.2.2 Migrant Workers in China..................................................... 91.2.3 New Generation Migrant Workers.......................................101.2.4 Migrant Construction Workers............................................ 121.3 The Significance............................................................................... 141.3.1 Selective Adaption & Local Knowledge............................. 141.3.2 Minor Social Group & Increasing Labour Disputes............171.4 Fieldwork and Methodology........................................................... 221.4.1 Recruiting Criterion.............................................................221.4.2 Hometown of Plasterers.......................................................261.4.3 Methodology – Oral History................................................291.4.4 Limitations...........................................................................31Chapter 2 Literature Review...................................................................................... 342.1 Introduction...................................................................................... 342.2 Legal Transplant Theory VS Social Theories of Law................... 362.2.1 Legal Transplant Theory......................................................362.2.2 Social Theories of Law........................................................372.2.3 Debate on Legal Transplant Theory.................................... 392.3 Legal Culture of China.................................................................... 422.3.1 Resistance to Rule of Law................................................... 422.3.2 Traditional Legal Culture of China......................................452.3.3 Ambivalent Attitude of the Regime..................................... 522.3.4 Three Theoretical Models of Legal Evolution in China......552.4 Internal Migration in China............................................................582.4.1 Political and Legal Changes................................................ 582.4.2 Watershed.............................................................................612.4.3 Rights Violations and Discriminations................................ 64v2.4.4 Migration Experiences.........................................................682.4.5 Labour Mobility and Spatial Mobility.................................692.4.6 Physical and Physiological Health...................................... 712.4.7 Labour Disputes and Protests.............................................. 732.4.8 Left-Behind Children and Aging Migrants..........................772.5 Summary...........................................................................................78Chapter 3 Labour Contract........................................................................................ 803.1 Introduction...................................................................................... 803.2 Background.......................................................................................813.2.1 Heated Debate before Enforcement.....................................813.2.2 Major Changes in Labour Contract Law............................. 833.2.3 Individual Contract or Collective Contract......................... 853.2.4 Impacts of Labour Contract Law.........................................863.3 Subcontracting System.................................................................... 903.3.1 Lu Ban Temple – Guild System in Ancient China.............. 913.3.2 State-Owned Construction Enterprises since 1949............. 923.3.3 Lubuge Project in 1980........................................................943.3.4 Autonomous System Built by Xiaogan People....................973.4 Migrant Construction Workers’ Legal Culture RegardingLabour Contracts.................................................................................... 1003.4.1 Labour Contracts: Important or Unnecessary?..................1023.4.2 The Most Influential Factor – Host City........................... 1043.4.3 Generation Differences......................................................1063.4.4 Beijing – Labour Contract is Compulsory.........................1113.4.5 Guangdong – Site Managers Covered by Labour Contracts1143.4.6 Northeast – Odd work, No Labour Contracts....................1163.4.7 More Job Opportunities..................................................... 1193.4.8 Unwritten Contract – “We Had a Deal”............................ 1203.5 Summary.........................................................................................123Chapter 4 Labour Disputes....................................................................................... 1284.1 Introduction.................................................................................... 1284.2 Background.....................................................................................1294.2.1 Sharp Rise of Labour Disputes and Protests..................... 1304.2.2 The Main Causes of Labour Disputes............................... 1334.2.3 The Nature of Labour Disputes......................................... 1354.2.4 Organized Strikes and Growing Labour Shortage.............1384.2.5 The Labour Dispute Resolution System............................1414.3 Migrant Construction Workers’ Legal Culture regarding LabourDisputes.................................................................................................... 1474.3.1 Major Cause of Labour Disputes – Wage Default.............1484.3.2 Much Less Wage Default since 2003................................ 1514.3.3 Wage-Deposit System in the Construction Industry..........1534.3.4 Industrial Injury Compensation......................................... 1574.3.5 The Nature of Labour Disputes in Construction Industry. 1614.3.6 Major Resolution Means – Conservative, Informal andviViolent........................................................................................... 1654.3.7 Disorganized and Cellular Debt Dispute in Hometown.... 1694.3.8 Organized Labour Protests in Host Cities......................... 1714.3.9 Aggressive and Violent Rural Youth..................................1744.3.10 It Is Not Worth Going to Court or Arbitrator...................1774.3.11 Local Government is the Major Debtor in Some Regions1794.3.12 Disappointing toward Their Hometown – Hubei............ 1814.4 Summary.........................................................................................183Chapter 5 Trade Unions.............................................................................................1885.1 Introduction.................................................................................... 1885.2 Background.....................................................................................1905.2.1 Chinese Trade Unions’ Structure and Roles...................... 1915.2.2 Chinese Trade Unions’ Dilemma.......................................1995.2.3 Chinese Trade Unions’ Reforms and Transitions.............. 2055.2.4 Concentrated Recruiting Migrant Workers Campaign...... 2145.3 Migrant Construction Workers’ Legal Culture Regarding TradeUnions.......................................................................................................2185.3.1 What Is That? - The Major Attitude to Trade Unions........2195.3.2 Invisible – The Trade Unions’ Role in Labour Disputes... 2235.3.3 Association of Co-villagers............................................... 2265.4 Summary.........................................................................................229Chapter 6 Conclusion................................................................................................ 2316.1 Introduction.................................................................................... 2316.2 Perceptions on Rule of Law and Rights....................................... 2326.2.1 Law Has Nothing to Do With Us.......................................2326.2.2 Only Officials and Rich People Have Quanli, We Don’tHave Any....................................................................................... 2366.3 Migrant Construction Workers’ Legal Culture regarding Three“Markers”................................................................................................2386.3.1 Labour Contracts are Unimportant and Unnecessary........2386.3.2 Labour Disputes Solutions are Conservative, Informal, andViolent........................................................................................... 2406.3.3 Trade Unions are Invisible.................................................2426.3.4 The Main Influencial Factors.............................................2436.4 Summary.........................................................................................2446.5 Suggestions for Future Research.................................................. 246Bibliography.................................................................................................................... 248Appendix 1, Undeveloped National Park......................................................................281Appendix 2, Basic Information of Participants............................................................284viiList of TablesTable 3.1: Basic Information of the Interviewees Covered by Labour Contracts...... 101Table A.1: Basic Information of Participants .............................................................284viiiList of FiguresFigure 5.1: Reconstruction of the ACFTU after 1949 ............................................... 197Figure 5.2: A Simplified Diagram of the Decision-Making Structure of SOE inChina .......................................................................................................... 199Figure A.2: Age Column of Participants ....................................................................286Figure A.3: Educational Background Column of Participants ...................................287Figure A.4: Educational Attainment based on Respondent Decade of Birth ofParticipants ................................................................................................ 289Figure A.5: Working Regions of Participants.............................................................. 290ixAcknowledgementsI would like to deeply thank my supervisor, Dr. Pitman B. Potter, for his years ofgenerous support and kind help. I also want to appreciate my supervisory committeemembers, Dr. Amy Hanser and Dr. Yves Tiberghien, for their significant help andcontinuous encouragement. Research for this study was supported for the Faculty of Lawof UBC and the Faculty of Graduate and Postdoctoral Studies, for which I am sincerelythankful. In particular, I would like to thank Rozalia Mate and Joanne Chung at theFaculty of Law for their administrative support. I would also like to thank my editor,Mark Tags, for his language and formatting editing. To all the migrant workers that I havemet and talked with in China, no matter whether they accepted my invitations toparticipate this study or not, no matter whether the data collected from their interviewsbeing adopted in this study or not, I dedicate my deep thanks. Last but most, I also wouldlike to thank my family: my parents, my husband, and my two children. Without theirdeep understanding and selfless support, it is impossible for me to go through this longand tough journey. I remain responsible for the errors and omissions that no doubt remainin this study.Juan LiWuhan, ChinaJanuary, 2017xDedicationFor my dad, Li Xuetao, who gave me generous and endlesslove.I miss you forever.1Chapter 1 IntroductionOn a cold winter’s day in January 2015, I met Peng, a young and strong migrantconstruction worker, at a small restaurant in his hometown of Shuangfeng Town, Xiaogan,Hubei Province, China. Born in 1989, Peng looked as trendy as his contemporaries inurban China. At our meeting, Peng told me about his straightforward way to resolvelabour disputes: “Firstly, I would talk with him nicely, saying some excuses that I reallyneed money now; for example, I will take the driver’s license test, or my mom is sick.After some nice talking, if he still refuses to pay me back, I would better use violence.” Iasked Peng, “Do you consider turning to some authorities or legal institutions for help,for instance, going to court, taking mediation or arbitration, or going to Labour Bureau?”Peng responded without any hesitation, “I would better to use violence. Settle theproblem in my own way. The law is useless and troublesome!”1Although this was not the first time that I heard such a statement during my fieldwork, atthat moment I was slightly taken aback, especially considering that the source was such ayoung man. Peng looked at my face, and became a little excited. He raised his voice, andasked, “So what? I won’t beat him, nor abuse him! I would only take him back to myhome, and make him stay there, till he pays me!” Somewhat surprised, I could not help1 Juan Li, (January 21, 2015) Personal Interview.2but ask, “Do you know this is illegal?” Peng shrugged, “It is OK here! It is useful, andeffective! The problem can be totally settled!” He became even more excited, “Then youtell me, what else can I do? Law is useless! Shall I simply accept the bad luck? No way!Definitely not!” 21.1 OverviewSince the Opium War in 1840, China involuntarily started a journey towards modernity.3The encounter of East and West wrought fundamental changes to Chinese society.4 TheChinese traditional local values, including traditional legal culture, were challenged.5 Inthe following centuries, various cultural conflicts continued during the process of legaldevelopment in modern China. Even today, although China’s legal system has developedsubstantially, conflicts in legal culture are still evident.6 The tension between importedWestern norms and traditional local values in China is a crucial dynamic in understandingthe development of the legal system in modern China; it is also a point worth2 Juan Li, (January 21, 2015) Personal Interview.3 Yeo-Chi King, “Construction of China’s Modern Civilization – On China’s Modernization andModernity,” in Economic Democracy and Economic Liberty, ed. Liu Junning (Shanghai: Sanlian BookstorePress, 1998), 42.4 Quanxi Gao, Wei Zhang, and Feilong Tian, The Road to the Rule of Law in Modern China (Berlin,Heidelberg: Springer Berlin Heidelberg, 2015), vii - viii.5 Zhiping Liang, Seeking Harmony in Natural Order, Research on Chinese Traditional Legal Culture(Xunqiu Ziran Zhixu zhong de Hexie: Zhongguo Chuantong Falv Wenhua Yanjiu) (Beijing: ChinaUniversity of Political Science and Law press, 2011), 2002; also Gao et al. supra 4.6 Zhongqiu Zhang, Comparative Studies of Chinese and Western Legal Cultures (Zhongxi Falv WenhuaBijiao Yanjiu) (Beijing, Law Press, 2009), p. 1.3comprehending for the ongoing legal reforms within the context of globalization.7Recognizing these dynamics, and consequent tensions, raises the following questions:How have liberal Western norms and values – for instance, the rule of law, right, contract,litigation, etc. – been adapted into the Chinese society? How has the traditional legalculture of ordinary Chinese people been changed, or preserved? What are ordinaryChinese people’s values, ideas, opinions and attitudes regarding the law and legal systemin modern China, after more than 170-years of social and legal transformation? How doChinese people resolve the conflicts they encounter in their daily lives?These are big and difficult questions, and some of them may be ultimately unanswerable;certainly, none of them can be answered conclusively. Nevertheless, as Paul Cohensuggests, it is essential to keep asking these questions.8 As such, this study aims toexplore a key aspect of popular legal culture in modern China. Of course, no single studycan present a comprehensive picture of popular legal culture in China, which at times is achaotic mix of contradictory ideas, symbols, and practices.9 Instead, this study focuseson an important social group, migrant construction workers. It explores their legal culture,7 Chenjun You and Yizhou Ye, “International Conference on “Modernity and Chinese Legal Culture” Heldat Renmin University of China Law School,” Frontiers of Law in China 8.4 (2013): 862.8 Paul A. Cohen, China Unbound: Evolving Perspectives on the Chinese Past, (London, Routledge, 2003),2-5.9 Perry Link, Richard P. Madsen, and Paul G. Pickowicz, “Introduction,” in Unofficial China, PopularCulture and Thought in the People’s Republic, eds. Perry Link, Richard P. Madsen, and Paul G. Pickowicz(Westview Press, Inc., 1989).4and uses this social group as lens to look through the China’s migrant workers’ legalculture. In this context, “legal culture” refers to migrant workers’ sense of collectivevalues, ideas, opinions and attitudes regarding the law and legal system in China, withinthe context of globalization and economic reform.10 As one of the major driving forces ofsocial and legal changes in China, migrant workers are reshaping the landscape ofChinese society because of their large numbers and great contribution to the economicdevelopment. 11 The center of gravity in China’s working class has shifted, and willcontinue to shift, to these workers.12In reality, migrant workers’ legal culture varies greatly due to a number of variables,including their hometowns, working industries, age, gender, educational backgrounds,host cities, and so forth. This study simplifies this complexity by selecting two recruitingcriteria: the migrant workers’ hometown and their working industry. All of the humansubjects of this study were born and grew up in the same town: Shuangfeng Town,Xiaochang County, Xiaogan City, Hubei Province, China. It is a typical rural area in thecentral part of China. All participants’ working experiences are mainly in the construction10 Lawrence M. Friedman, “Is There a Modern Legal Culture?” Ratio Jurisprudence 7.2 (1994): 117.11 Xin Frank He, “Regulating Rural-urban Migrants in Beijing: Institutional Conflict and IneffectiveCampaigns,” Stanford Journal International Law 39.2 (2003): 177; Aaron Halegua, “Getting Paid:Processing the Labour Disputes of China’s Migrant Workers,” Berkeley Journal of International Law 26.1(2008): 254; Paul Thompson, “The Voice of the Past,” in The Oral History Reader, eds. Robert Perks andAlistair Thompson (London: Routledge, 2006).12 Yunchao Zhu, “Workers, Unions and the State: Migrant Workers in China’s Labour-intensive ForeignEnterprises,” Development and Change 35.5 (2004): 1011.5industry. Since the concept of legal culture is broad, this study identifies three importantaspects of employment relations as three “Markers”, namely “labour contract,” “labourdisputes resolution,” and “trade union,” as three “Markers” of migrant constructionmigrant workers’ legal culture. The migrant construction workers who come from atypical rural area in China, their experiences, thoughts and feelings regarding these three“Markers” can offer a window into how they resolve conflicts by drawing upon their ownlegal culture.Among the labour regulations and policies in China, this study primarily explores migrantconstruction workers’ legal culture regarding three regulations; namely Labour ContractLaw,13 Labour Dispute Mediation and Arbitration Law,14 and Trade Union Law.15Based on more than two years of pre-fieldwork and fieldwork in central China, this studydraws on 34 in-depth interviews with migrant construction workers all from a samehometown. It elaborates these migrant construction workers’ ideas, values, opinions, andattitudes toward China’s legal system, mainly regarding three aspects of employmentrelations, namely labour contract, labour disputes resolution, and trade unions. Itconcludes that the imported Western legal norms, such as rule of law, rights, contract,litigation, and trade unions, have, thus far, had limited influence on the popular legal13 Labour Contract Law of PRC, http://www.npc.gov.cn/wxzl/gongbao/2013-04/15/content_1811058.htm.14 Labour Dispute Mediation and Arbitration Law of PRC,http://www.gov.cn/flfg/2007-12/29/content_847310.htm.15 Trade Union Law of PRC, http://www.npc.gov.cn/wxzl/gongbao/2001-10/29/content_5277078.htm.6culture of Chinese migrant construction workers, while local values in China, such asfamily ethic, morality, and harmony, still play a dominate role in their daily lives.This study aims to make three contributions to the literature. First, it examines a piece ofpopular legal culture in China, providing some valuable “local knowledge,”16 and helpsto convey what Chinese people really think and feel about their society and legal system.Second, it demonstrates the tensions between Western liberal norms and deeplyembedded local values.17 Third, it elaborates the experiences and perspectives of Chinesemigrant workers who have become a major driving force in China’s social and legalchanges.18This dissertation is organized into six chapters: Introduction, Background, LabourContract, Labour Dispute Resolution, Trade Union, and Conclusion. The Introductionmainly responds to issues of what, why and how; more specifically, what are the mainissues of this study, why this study is meaningful, and how was this study, especially itsfieldwork, undertaken. The Background focuses on the field of legal transplants, legalculture, and migrant workers in China, and explores the “gap” that this study fills. From16 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: BasicBooks, 1983).17 Pitman B. Potter, China’s Legal System (Malden, MA; Cambridge, UK: Polity, 2013); Pitman B. Potter,“Legal Reform in China: Institutions, Culture, and Selective Adaptation,” Law and Social Inquiry 29.2(2004): 465.18 Thompson, “The Voice of the Past,” supra n. 11.7Chapter 3 to Chapter 5, the study explores migrant construction workers’ legal culturewith regard to the three “Markers” – labour contract, labour dispute resolution, and tradeunions. In addition, related literature is reviewed, some background of the context isintroduced, and case studies are depicted. Finally, Chapter 6 provides the conclusion, andsuggests possibilities of further studies in this area.1.2 The Main Issues1.2.1 Legal CultureRadcliffe Brown claims: “The center of gravity of legal development lies not inlegislation, nor in juristic science, nor in judicial decision, but in society itself.”19 In orderto understand how the law, legal system, and legal institutions work within the fabric ofdaily life, the concept of “legal culture” was introduced, and plays as an importantintervening variable, a mechanism for transforming norms of popular culture into legaldress and shape.20 According to Friedman, legal culture means the ideas, values, attitudes,and opinions that people in some society hold, with regard to law and legal system.21Potter explores the notion that legal culture reflects the belief systems of the individualsand groups whose behavior contributes to the performance of legal institutions.2219 Radcliffe Brown, Structure and Function in Primitive Societies (London: Cohen and West, 1952), 181.20 Friedman, supra n. 10.21 Ibid.22 Potter, China’s Legal System, supra n. 17; Potter, “Legal Reform in China: Institutions, Culture, andSelective Adaptation,” supra n. 17.8Ehrmann explores legal culture essentially as a variant on political culture, though in therealm of law.23 Yngvesson argues that legal culture is a contested terrain on whichunderstandings of fundamental cultural symbols, such as community, neighborhood, andrights are challenged and reinterpreted.24 Liang underscores that legal culture is aspecific spirit of law, rooted in a certain style of culture. A certain style of culture isestablished and formed in long-term historical experiments, and is also the result ofpeople’s selections which indicate not only their attitudes, but also thoughts about theirlives.25According to Nelkin, the concept of legal culture reminds us that aspects of law normallycome in packages of one sort or another, and illustrates that features of law arethemselves embedded in larger frameworks of social and cultural structure.26 Friedmanbelieves that legal scholars should figure out the influence of society on the legal system,and the influence of the legal system on society; in other words, the sources of law, andthe impact of law. The concept of legal culture has a central place in both of these tasks.27In this sense, legal culture represents an intervening link between social forces and legal23 Henry Walter Ehrmann, Comparative Legal Cultures (Englewood Cliffs, N.J.: Prentice-Hall, 1976), 6.24 Barbara Yngvesson, “Inventing Law in Local Settings: Rethinking Popular Legal Culture,” Yale LawJournal 96 (1989): 1689.25 Liang, supra n. 5.26 David Nelken, “Towards a sociology of legal adaptation,” in Adapting Legal Culture, eds. David Nelkenand Johannes Feest (Oxford and Portland, Oregon, Hart Publishing, 2001), 13.27 Friedman, supra n. 10.9system.28 Hence, a legal reform is doomed to failure if it does not take into account legalculture,29 and important changes in law would be impossible, unless preceded by culturalchange.30 The study of legal culture is one of the powerful responses to the questionsabout the performance of formal legal institutions and legal transplants. It helps toillustrate how a formal legal institution works in a certain society, and why it is not aseffective as expected.1.2.2 Migrant Workers in ChinaFrom the end of 1978, the adoption of the Household Contract Responsibility System hasfreed tens of millions of farmers from being confined to limited plots of land, and hasresulted in a significant surplus of rural labourers. Since the 1980s, large numbers ofpeasants have migrated to the southeast coastal cities in order to find work despiteregulatory restrictions.31 By the end of 2015, there were 277.47 million migrant workersacross China. 32 They have become one of major driving forces in China’s social andlegal changes, and have been reshaping the landscape of Chinese society.3328 Lawrence M. Friedman, “Law, Lawyers, and Popular Culture,” The Yale Law Journal 98 (June, 1989):1584.29 Ibid, 1579.30 Lawrence M. Friedman, “Legal Culture and Social Development,” Law and Society Review 4 (1969):29.31 Jie Shen, Labour Disputes and Their Resolution in China (Oxford: Chandos, 2007), 13-16; Liren Shen,Chinese Migrant Workers (Zhongguo Nongmingong) (Beijing, Democracy & Construction Press, 2005).32 National Bureau of Statistics, Investigative Report on the Monitoring of Chinese Migrant Workers in2015, http://www.stats.gov.cn/tjsj/zxfb/201604/t20160428_1349713.html. Accessed on June 9, 2017.33 He, supra n. 11.10In the English scholarly literature, migrant workers in China are also referred to asrural-to-urban migrant workers, peasant workers, internal migrant workers, and thefloating population. In Chinese, the term is Nongmingong or Mingong. This term is acombination of “Nongmin” (peasant) and “Gong” (worker), which clearly indicates thisgroup’s double and ambiguous identity.34 According to Zheng and Huang, a migrantworker is a labourer who has rural household registration, but works in urban areas or innon-agriculture sectors. This special identity is the result of fierce conflict between theHousehold Registration System and the accelerated industrialization process in China35Migrant workers tend to be a relatively younger and better-educated labour force in ruralChina.36 In one of the most profound social developments in modern China, migrantworkers are reshaping the landscape of Chinese society.371.2.3 New Generation Migrant WorkersThe “new generation migrant workers” normally refers to migrant workers born after1980, and who are older than 16.38 By the end of 2009, the number of migrant workerswas 150 million, of which about 100 million could be categorized as new generation34 Gongcheng Zheng and Ruolian Huang, Chinese Migrant Workers: Issues and Social Protections(Zhongguo nongmingong wenti yu shehui baohu) (Beijing: People Press, 2007), 8.35 Ibid.36 Ling Li, “Towards a More Civil Society: Mingong and Expanding Social Space in Reform-era China,”Columbia Human Rights Law Review 149.156 (2001).37 He, supra n. 11; Halegua, supra n. 11.38 Zheng and Huang, supra n. 34.11migrant workers, accounting for about 66.7 percent; this number has been increasingyear-by-year. 39 Due to dramatic social and economic changes in China over the pastdecades, the new generation has grown up in a different situation than previousgenerations. For instance, they are the first generation to grow up in prosperity, withoutworrying about food and shelter, and parents sensitive to the one-child policy pamperedmany of these individuals. Many of them have never laid down roots, and they tend to bebetter educated than the elder generation of migrant workers.40 According to a nationalsurvey, 89.4 percent of new generation migrant workers barely know about farm work,and 37.9 percent have never done any farm work.41These different experiences of young migrant workers in China today have createddifferent expectations and attitudes compared to those of the older generation. The oldergeneration of migrant workers was driven by land shortage or poverty in rural areas,while the new generation expects earning opportunities, personal development, and anurban lifestyle.42 A report from ACFTU claims that the new generation’s sense of39 ACFTU, “Research Report on the New Generation of Migrant Workers (Guanyu XinshengdaiNongmingong Wenti de Yanjiu Baogao),” http://www.chinanews.com/gn/news/2010/06-21/2353233.shtml.Accessed May 21, 2016.40 China Review News, “Han Changfu, Secretary of Agriculture Ministry Talks about New Generation ofMigrant Workers,” China Review News, February 1 2010, accessed June 6 2015,http://mag.chinareviewnews.com/doc/1012/1/6/9/101216949.html?coluid=7&kindid=0&docid=101216949&mdate=0201144628; Mingxin Bi, “Young Migrants Settle for Life in the City,” China Daily, February 26,2008, http://news.xinhuanet.com/english/2008-02/26/content_7671827.htm. Accessed June 6 2015,41 ACFTU, Report on New Generation Migrant Workers (ACFTU, 2010).42 Max Tunon, “Internal Migration in China: Features and Responses,” ILO Asia and the Pacific 8 (2006),accessed October 10 2016,12collective self-identity is gradually shifting from peasants to workers. Their attitudetoward host cities is moving from that of “guests” to “settling down,” with 55.9 percentof new generation migrant workers wanting to settle in the host cities.43 In addition, thisgroup is less tolerant towards bad working conditions, and more sensitive todiscrimination. Their demands are shifting from basic working conditions to moreequality and even decent work.44 They have stronger consciousness of legal rights thanolder migrant workers and laid-off workers from Sated Owned Enterprises. They tend toresort first to legal activism such as labour arbitration, mediation, and litigation.45 In short,they are more like their counterparts in urban China.461.2.4 Migrant Construction WorkersThe Chinese term for the construction industry, Jianzhu Ye,47 includes sectors of civilengineering, building development, equipment installation, as well as related survey,design, production, and decoration. Its products are factories, mines, railways, bridges,www.ilo.org/public/english/region/asro/beijing/download/training/lab_migra.pdf.43 ACFTU, supra n. 41.44 Bi, supra n. 40.45 Ching Kwan Lee, Against the Law: Labour Protests in China’s Rustbelt and Sunbelt (University ofCalifornia Press, 2007); Jieping Zhang and Yixin Zhu, “Labour Movement in China Requires IndependentTrade Unions,” Asia Week 24.23 (2010), accessed September 26, 2015,http://gb.udn.com/gb/blog.udn.com/yensunny/4125202.46 Andy Xie, “Dismantling Factories in a Dreamweaver Nation,” Caixin Online, June 7, 2010, accessedJune 6, 2015, http://english.caing.com/2010-06-07/100150460_2.html.47 建筑业.13ports, roads, pipelines, residential and public facilities, buildings, structures, etc.48 Nearly40 years after initiating market economic reform, China has become not only the world’sworkshop, but also the world’s largest construction site.49 By 2009, China had theworld’s largest construction market, accounting for more than 50 percent of globalconstruction volume, half of concrete consumption, and a third of steel consumption.50In 2013, the total output value of the construction industry reached 15931.3 billion yuan,6.86 percent of the total national GDP.51 Not only are Beijing and Shanghai buildingmetropolises, but also many inland cities are investing billions of dollars in infrastructureand real estate development. For instance, Wuhan, the capital city of Hubei Province,plans to invest 2,000 billion yuan on construction, between 2014 and 2019. Chongqing,the fourth municipality in China, spent 296.21 billion yuan on infrastructure, and 301.28billion yuan on real estate development in 2013.52 In 2014, 22.3 percent of migrantworkers were working in the construction industry, with a total number of more than 6148 Weixing Jin, Construction Management Theory and Practice in China in Twenty-first Century (21 ShijiZhongguo Jianzhu Ye Guanli Lilun yu Shijian), (Beijing: Construction Industry Press of China, 2006).49 Ngai Pun and Huilin Lu, “Neoliberalism, Urbanism and the Plight of Construction Workers in China.”World Review of Political Economy 1.1 (2010): 127.50 Ibid.51 Department of Market Supervision and Research Center, Ministry of Housing and Urban RuralDevelopment of PRC, Research Report on Reform and Development of China’s Construction Industry 2014(Zhongguo Jianzhuye Gaige yu Fazhan Yanjiu Baogao 2014), (Beijing: China Construction Industry Press,2015), 28.52 First Finance Daily, “Many Cities Invest More Than 100 Billion Yuan on Construction, Richer Than aCountry. Wuhan Plans to Spend 2,000 Billion Yuan in The Next 5 Years (Woguo Duodi ChengjianNiantou Qianyi Haoke Diguo. Wuhan ni Wunian hua 2 Wanyi),” accessed August 31, 2014,http://finance.sina.com.cn/china/20140219/015718256727.shtml14million.53 Despite the construction industry’s enormous profits, construction workers arepoorly protected, both physically and financially. Pun and Lu challenge that constructionworkers are in the worst situation in China’s modern history. Migrant workers facebackbreaking workloads, awful work and living conditions, long-term separation fromhome and family, deception, and immense difficulties in receiving payment.541.3 The Significance1.3.1 Selective Adaption & Local KnowledgeThe Chinese legal culture of migrant workers is worthy of study for many reasons. First,it helps with understanding the popular culture of modern China, generally. In order tounderstand the forces driving the transition of Chinese society, one must know whatpeople think and feel about their society, and how their thoughts and feelings haveevolved.55 Second, legal culture analysis helps to illuminate the tensions betweenWestern legal norms and deeply embedded local values,56 and to understand the ongoingdevelopment of China’s legal system.57 The local values in China may include, and beinfluenced by, Confucianism, Taoism, Buddhism, and other local or imported53 National Bureau of Statistics of People’s Republic of China, “Statistics Report on National Economicand Social Development of 2014 (2014 Nian Guomin Jingji he Shehui Fazhan Tongji Baogao),” accessedApril 14, 2015, http://www.stats.gov.cn/tjsj/zxfb/201502/t20150226_685799.html.54 Pun and Lu, supra n. 49.55 Link, Madsen and Pickowicz, “Introduction,” in supra n. 9.56 Potter, China’s Legal System, supra n. 17; Potter, “Legal Reform in China: Institutions, Culture, andSelective Adaptation,” supra n. 17.57 You and Ye, supra n. 7.15philosophies. Third, there has been increasingly closer and more frequent contact amongnations and societies within the context of globalization, which underlines the need forcross-cultural analysis of legal performance in various regions.58 Moreover, China’sexpanding trade and investment relations around the world underscores the importance ofstudying the legal culture in modern China.59We live in an age of convergence and resistance in legal cultures. Primarily, the journeyof legal culture convergence moves in one direction: from the developed to theunderdeveloped world, and among the developed countries themselves.60 Potterhighlights that this one-way distribution reflects imbalances in political and economicpower.61 However, since their introduction in China, Western legal norms haveconfronted powerful resistance from Chinese local culture.62 The resiliency of localnorms despite of new institutional arrangements is a significant element of the politicaland legal culture in China.63 Potter uses the term, “dynamic selective adaptation,” todescribe the legal culture in modern China. According to Potter, selective adaptationdescribes a series of localized responses to imported legal standards, and suggests a58 Pitman B. Potter, “Selective Adaption, Institutional Capacity, and the Reception of International Lawunder Conditions of Globalization,” in Globalization and Local Adaptation in International Trade Law, eds.Pitman B. Potter and Biukovic Liljana, (Vancouver: UBC Press, 2011), p. 10.59 Ibid; Potter, China’s Legal System, supra n. 17; Potter, “Legal Reform in China: Institutions, Culture,and Selective Adaptation,” supra n. 17.60 Friedman, supra n. 10.61 Potter, China’s Legal System, supra n. 17.62 Ibid; Potter, “Legal Reform in China: Institutions, Culture, and Selective Adaptation,” supra n. 17.63 M. McAuley, “Political Culture and Communist Politics: One Step Forward Two Steps Back,” PoliticalCulture and Communist Studies (1984).16spectrum of possibilities for application of external standards, based on variable degreesof conformity among local and non-local norms.64 The reception of the imported legalnorms depends on the extent to which these norms accommodate rather than replace thelocal values.65 Bodde et al. also note that in China, ordinary people’s awareness andacceptance of legal norms was shaped far more by the persistent impact of local customand traditions than by any formally legal system.66 Lubman argues that local valuesrelate to social harmony, and conflicts among family, social structure, and politicalinstitutions, contribute to China’s rich and disorderly “legal culture.” 67 Head also makesthe point that China does not aspire to an essential rule of law, such as domestic forms ofgovernment or liberal individual-centered conceptions of human rights, despite its legaldevelopment over past decades.68 Moreover, neither the liberal models nor local valuesin China are absolute and unchanging. They are both constantly evolving, and there arevariations within each of these, even when noting the differences.Studying popular legal culture in China can also provide valuable insight into “local64 Pitman B. Potter, “Globalization and Economic Regulation in China: Selective Adaptation of GlobalizedNorms and Practices.” Washington University Global Studies Law Review 2(2003): 119.65 Tunon, supra 42; Pitman B. Potter, “Selective Adaptation and Institutional Capacity: Perspectives onHuman Rights in China,” International Journal 61. 2 (2006): 389.66 Derk Bodde, Clarence Morris, and Ch’ing-ch’i Chu, Law in Imperial China: exemplified by 190 Ch’ingDynasty cases (Cambridge: Harvard University Press, Mass, 1967), vol.1.67 Stanley B. Lubman, “Studying Contemporary Chinese Law: Limits, Possibilities and Strategy,” TheAmerican Journal of Comparative Law 39.2 (1991): 293.68 John W. Head, Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical andOperational Perspective (Carolina Academic Press, USA, 2011), 517- 525, 560-573.17knowledge.”69 Su highlights that “rule of law” in China can only be achieved throughlocal knowledge and resources, rather than simply by legal transplant from the West.70The market economy also needs a legal system that can reduce costs, promote exchanges,and optimize social wealth distribution to the most extent,71 and the top-down legalreforms, as well as transplanted rules, are not necessarily appropriate to an emergingmarket economy, and cannot replace the customs and traditions embedded in Chinesesociety.72 Liang also argues that China can only reach legal modernity by updating andreconstructing her traditions. Any imported culture can only survive by rooting itself intothe traditional and local culture.73 In fact, in the past decades, the most successful laws inChina are largely initiated by ordinary Chinese people, especially peasants, such as legalreforms regarding rural land contract system and township enterprises. These successfullegal reforms involved the recognitions of existing innovations of the Chinese people.741.3.2 Minor Social Group & Increasing Labour DisputesMigrant workers have contributed significantly to “China’s miracle” in the past decades.7569 Geertz, supra n. 16.70 Su Li, Rule of Law, and its Local Resources (Fazhi jiqi Bentu Ziyuan) (Beijing: China University ofPolitical Science and Law press, 2004).71 Max Weber,Max Weber on Law in Economy and Society, (Harvard University Press, Cambridge, 1954).72 Su, supra n. 70.73 Zhiping Liang, Interpretation of Law, the Past, Current, and Future of Law in China (Fa Bian,Zhongguo Fa de Guoqu, Xianzai, he Weilai) (Beijing: China University of Political Science and Law Press,2004).74 Su, supra n. 70.75 Zhaozhou Han and Long Ge, “Statistical Analysis on the Contribution of Migrant Workers to China’s18The almost inexhaustible supply of cheap and compliant labour is one of the mostattractive features to foreign invested enterprises. This group is also amajor force in urbanconstruction and infrastructure projects.76 However, economic growth in China has beenunevenly distributed; and the contradictions among labour, capital, and the state havedeepened ever since the economic reform. The contribution rate of migrant workers toeconomic growth has increased steadily; however, their sharing rate has decreased.77Moreover, migrant workers suffer from discrimination and marginalization, and havebeen the main victims of the most serious labour-rights violations.78 Due to the dualhousehold registration system and the restrictive policies of local authorities, they areonly “guests” of the cities selling their youth and labour.79 Urban citizens and localauthorities often treat migrant workers as second-class citizens; they and their familiesare often denied access to education, medical care and social welfare, to which onlyurban citizens are entitled.80 Solinger notes that foreigners in Japan and Germany, whichby no means welcome outsiders, receive much better treatment than migrant workers inChina.81Economic Growth and Achievement Sharing (Nongmingong dui Zhongguo Jingji Zengzhang Gongxian yuChengguo Fenxiang de Tongji Fenxi),” Statistics and decision making, 4(2015):100; Zheng and Huang,supra n. 34.76 Ibid.77 Han and Ge, supra n. 76.78 Anita Chan. “Strikes in China’s Export Industries in Comparative Perspective.” China Journal, 65,(2011): 27; Shen, supra n. 31.79 Zheng and Huang, supra n. 34.80 United Nations, The National Human Development Report for China, (2005), accessed March 8 2015,http://www.undp.org.cn/modules/php?op=modloadandname=Newsandfile=articleandtopic=40andsid=228.81 Dorothy J. Solinger, “Citizenship Issues in China’s Internal Migration: Comparisons with Germany and19In recent years, conflicts between the migrant workers and other social groups havebecome increasingly fierce and have had great impact on the Chinese society. Labourdisputes and protests have increased dramatically,82 and have become noticeably moreviolent and massive, resulting in such incidents as the beating up of managers, massprotests or strikes, demonstrations, besieging headquarters of enterprises and localauthorities, as well as blocking main roads or traffic.83 Some workers have gone so far asto commit suicide in protest of the employers.84 Besides aggressive labour protests, thenew generation migrant workers also choose to “vote with their feet.” The Pearl RiverDelta region, where most of the labour-intensive manufacturing industries are located,started to experience migrant labour shortages starting in the early 2000s, and theproblem has become increasingly serious. The labour shortage continued and spread toother areas, despite the fact that wages have risen constantly.85 As one foreign observerstates, “After years of being pushed to work 12-hour days, six days a week onJapan,” Politic Science Quarter 114.3 (1999): 455.82 C. J. J. Chen, “Growing Social Unrest and Emergent Protest Groups in China,” In Rise of China:Beijing’s Strategies and Implications for the Asia-Pacific, eds. H. H. M. Hsiao and C. Y. Lin (New York:Routledge, 2009), 87; Richard B. Freeman, and Xiaoying Li, “How Does China’s New Labour ContractLaw Affect Floating Workers?” National Bureau of Economic Research Working Paper Series (19253)(2013).83 Lee, supra n. 45; Congressional Executive Commission on China, Report on Worker Actions in China,“Recent Worker Actions in China,” July 2, 2010, accessed March 28, 2015,http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=142008.84 Freeman and Li, supra n. 82.85 Zhilong Chen, “To the Shortage of Labour Recruitment Difficult Symbol (Zhaogong Nan XiangzhengLaodongli Zouxiang Duanque),” Sina Finance, February 20 2014, accessed May 23, 2016,http://finance.sina.com.cn/zl/china/20140220/093318276916.shtml.20monotonous low-wage assembly line tasks, China‘s workers are starting to push back.”86The CCP considers this surge in labour unrest to be the “biggest threat to socialstability.”87Migrant workers’ protests have driven important political and legal changes in China. In2008, three important labour laws, namely Labour Contract Law, Labour DisputeMediation and Arbitration Law, and Promoting Labour Employment Law, were enactedwithin one year. These laws clearly offer more protections for employees, and have beensuccessful, at least in theory, in establishing a more convenient, efficient, effective, andlow-cost mechanism to resolve labour disputes.88 Another example is the “Opinions onFurther Promoting the Reform of the Household Registration System” issued by StateCouncil in 2014. This policy clearly states that China would gradually unify urban andrural household registration system. As a result, the dualistic household registrationsystem which contributes to inequality between urban and rural dwellers in China wouldbe abandoned gradually.89 As Klare indicates, labour law is a legal discipline whosemainstream tradition is progressive.90 Abrams also points out that labour laws are the86 Congressional Executive Commission on China, supra n. 85.87 Shen, supra n. 31.88 Yun Zhao, “China’s New Labour Dispute Resolution Law: a Catalyst for the Establishment ofHarmonious Labour Relationship?” Comparative Labour Law and Policy Journal 30.2 (Winter 2009): 409.89 Opinions on Further Promoting the Reform of the Household Registration System,” accessed September27, 2016, http://www.gov.cn/zhengce/content/2014-07/30/content_8944.htm.90 Karl Klare, “The Horizons of Transformative Labour and Employment Law,” in Labour Law in an Eraof Globalization: Transformative Practices and Possibilties eds. Joanne Conaghan, Richard Michael Fischl,and Karl Klare (Oxford: Oxford University Press, 2002).21outcome of complex, protracted, and sometimes bitterly contested struggles amongdifferent social groups; 91 these have never been built from the top-down, but ratherfrom the bottom-up. 92 It is doubtless that these political and legal changes would nothave happened if the Chinese migrant workers have not constantly fought back againstperceived injustice.This study focuses on a specific social group, 34 migrant construction workers who areall original residents from a typical undeveloped rural area in central part of China, andexplores their legal culture. This group’s legal culture, doubtlessly, can present the morethan 400,000 migrant construction workers from their hometown, Xiaogan. Moreover,this sample can provide some valuable insight to the legal culture of more than 11 millionmigrant workers from Hubei Province. 93 It is also a typical example as the legal cultureof more than 61 million migrant workers working in the construction industry, because oftheir share similar the same operation system and structure in this section. Last but notleast, this study can shed some light on the legal culture of around 280 million migrantworkers in China with Xiaogan construction workers as a case study. The participants’legal culture can present how the migrant workers make selective adaptions between the91 Philip Abrams, Historical Sociology (Shepton Mallet: Open Books, 1982), 15.92 Harry Arthurs, “Who’s Afraid of Globalization? Reflections on the Future of Labour Law,” inGlobalization and the Future of Labour Law, eds. John D. R. Craig and S. Michael Lynk (CambridgeUniversity Press, 2006).93 Statistics Bureau of Hubei Province. Analysis of Employment Characteristics and Transfer trend ofMigrant Workers in Hubei, http://www.stats-hb.gov.cn/tjbs/qstjbsyxx/114809.htm. Accessed on June 13,2017.22new legal institutions and the local values, and how they deal with the conflicts in theirdaily lives, in the context of urbanization and globalization.1.4 Fieldwork and Methodology1.4.1 Recruiting CriterionThis study selected two recruiting criterion: participants’ hometown and industry of work.All participants are originally residents of Shuangfeng Town, Xiaochang County,Xiaogan City, Hubei Province, China. All participants’ working experiences arepredominantly in the construction industry. Thus far, few studies have focused onstudying migrant workers from the same hometown. Meanwhile, compared to migrantworkers in the factories of South China, migrant construction workers have attracted farless attention.94When I developed the research proposal in Vancouver, I designed only one recruitingcriterion: the participants’ hometown, and planned to do my fieldwork in Zuohe Village,Xinzhou Town, Wuhan City, Hubei Province, China. Since my father lived in that villagefrom 1970 to 1971, as part of the Campaign of Educated Youth Going to and Working inCountryside and Mountain Areas,95 he had a good relationship with his landlord, and94 Pun and Lu, supra n. 49.95 The Campaign of Educated Youth Went to and Worked in Countryside and Mountain Areas was apolitical campaign that started in 1969, and ended by 1978.23became good friends with the landlord’s son, Lao Cao. They stayed in touch for manyyears, and Lao Cao warmly invited me to conduct my fieldwork in his village. Heindicated that nearly all adults in his village migrated, saying, the village “is empty, onlythe aged and children left. They (the adults) only come back home in Spring Festival.” 96After informally interviewing 22 migrant workers in Zuohe Village in the Spring Festivalof 2013, I found it was very difficult to generate meaningful comparisons with only onerecruiting criterion. The migrant workers with whom I spoke in Zuohe Village were ofdifferent ages, different gender, and working in different industries and cities. As such, Idecided to choose a second recruiting criterion, working industry, which has noticeableimpacts on migrant workers’ legal culture based on the information collected in thepre-fieldwork in Zuohe Village. However, it was difficult to find enough participants inZuohe Village worked in same industry. Thus, starting in the spring of 2014, I settled inWuhan, the capital city of Hubei Province, and took every chance I had to talk withmigrant workers. Wuhan is a big city with a permanent population of 10.34 million by theend of 2014,97 and with 2 million migrants.98 As a less developed province in centralChina, Hubei is a major labour-exporting province.99 Hence, I had good chances to96 Juan Li, (January 15, 2015), Personal Interview.97 Statistic Bureau of Wuhan, Statistic Yearbook of Wuhan 2014, accessed October 13, 2016,http://www.whtj.gov.cn/Attachment/201604/201604201721390237.pdf98 Wuhan Weekly, “There are 2 Million Migrant Workers in Wuhan,” accessed October 13 2016,http://hb.sina.com.cn/news/n/2013-02-08/172452092_2.html.99 Huang Yan, “Hubei Exporting 11 million migrant workers in 2011, Making profits of 15.56 billionyuan,” Xinhua Net, February 12, 2012, accessed October 13 2016,24access migrant workers from different areas of Hubei Province in Wuhan.I approached possible interviewees undertaking intercept method. First, I attempted tochat with the migrant people with whom I became familiar with; for instance, thehousekeepers who worked for my family, the cooks and waitress of the food courts Ifrequently went to, the technicists and workers who maintained my car, my beautician,my masseur, etc. When I had good communication with them, I asked them to introducetheir colleagues and co-villagers to me. It was noticeable that the migrant workers Iinterviewed in Wuhan were not as relaxed as those I interviewed in Zuohe Village. Manyof them were reluctant or unwilling to answer many questions.Gradually, I narrowed down the choices for the second recruiting criterion tohousekeepers and construction workers. It turned out that the snowballing method wasnot a good approach for recruiting housekeepers. Most of the housekeepers I accessed inWuhan were women. They are guarded in responding to my questions, and did not haveclose relationships with other housekeepers, as they normally work by themselves. Theyhad good relationships with their co-villagers; however, these people likely did not workas housekeepers. By the end of the fieldwork, I could not find enough housekeepers fromthe same hometown. This was a distinct weakness of the snowballing method.http://news.xinhuanet.com/fortune/2012-02/12/c_111515559.htm.25On the other hand, snowballing worked well to recruit migrant construction workers.First, I approached Dayong who was contracted to complete small decoration project formy friend’s apartment. Dayong was a nice and talkative person, and was glad to sharewith me his experiences in different cities. We had a very pleasant conversation. When heknew about my research plan, he invited me to visit his hometown, Shuangfeng Town,and told me that nearly all of the men and many women in his Town worked in theconstruction industry.Together with Dayong, I went to Shuangfeng Town for the first time in November 2014,when migrants started to return home for the winter and spring festivals. Dayong referredthree of his friends to me: Hongxing, Hongliang, and Xiaozhan. Each of them was free atthat time, and was glad to chat with somebody who was interested in their experienceswith respect. All of them subsequently referred their families and friends to me. I spentthe entire winter in Shuangfeng Town, looking for potential participants. I walked aroundthe villages, and spoke with every possible dweller. By the end, I had somehow become“famous” in that area, and was referred to as “that women who knows about Da Guansi100 (lawsuit).” Some people even came to me asking for advice on their labour disputes,with some ultimately accepting my invitation to participate in the study. By March 2015,I had interviewed 34 migrant workers in total, all of whom were primarily working in theconstruction industry. I had to end up the fieldwork because all the migrant workers100 打官司.26started to leave their hometown and to go to the host cities. It was a great experience. Toclarify, all of the primary data in this study was collected from the fieldwork done inShuangfeng Town. All collected data from interviews in Zuohe Village and Wuhan Cityhas not been used in this study.1.4.2 Hometown of PlasterersThanks to economic development over the past decades, China has become the largestconstruction site in the world.101 This booming industry provides sufficient jobopportunities. Increasing Xiaogan farmers have become plasterers and tiling masters.They refer jobs and pass experiences to each other. The masters teach their sons andnephews. The local government of Xiaogan also strongly supports labour exporting in theconstruction industry. It established construction teams to contract projects all aroundChina, and provided job opportunities for local residents. By 2016, the Xiaogangovernment signed the Strategic Cooperation Agreements on Labour Exporting withseveral leading national construction enterprises, including China Construction FirstDivision, the Fourth Highway Engineering Bureau of China, and Beijing ConstructionEngineering Group. According to the Agreements, the Xiaogan government would exportgood construction teams and skillful labourers to these big companies.102 By May 2013,101 Pun and Lu, supra n. 49.102 Changjiang Times, “There are Xiaogan plasterers in Every Building in the Northeast (Dongbei MeidongLou, Dou You Xiaogan Niwajiang),” May 2, 2013, accessed May 30 2016,http://www.changjiangtimes.com/2013/05/441741.html.27there had been more than 400,000 Xiaogan migrant workers working on constructionsites throughout China. In 2012 alone, these Xiao construction workers earned over 10billion yuan in total.103Gradually, migrant construction workers from Xiaogan, especially Xiaogan plasterers,have established a famous brand in this industry, because of their outstanding skills, goodreputation, and efficiency.104 Hence, Xiaogan is also known as the “hometown ofplasterers.” Xiaogan plasterers are especially popular in the Northeast of China, wherethey have nearly monopolized the plastering market. For instance, in Hegang City alone,a small city of Heilongjiang Province, there are more than 2,000 Xiaogan plasterers.105According to the primary data, there are four reasons why local residents primarilychoose to work in the construction industry. First, the booming construction industry inChina provides sufficient job opportunities for rural labourers.106 Nearly all of theinterviewees confirmed that it was much easier to find jobs for plasterers in recent years.For instance, as Kai explained, “It is so easy to find a job nowadays! You just walk into aconstruction site casually, bang! You got a job! It’s different in the past. At that time,bosses chose workers, but now workers choose bosses, especially those masters with103 Ibid.104 Ibid.105 Zhimin Wang, “Xiaogan Plasterers Take 0.2 Billion Every Year,” Hegagn Evening, August 19, 2015,accessed April 26, 2015, http://hegangnews.dbw.cn/system/2011/08/19/053348017.shtml.106 Pun and Lu, supra n. 49.28good skills!” 107Second, as many interviewees indicated, there is barely an entry threshold to become aconstruction worker. There is neither an education requirement nor starting fund. As longas you are strong, and can endure the hardship, you can be a construction worker in China.As Zhen said, “What else can I do? I only went to middle school, and cannot find adecent job. I have not enough starting fund to run my own business. But now the onlything I can do is construction work. At least, the payment is good.” 108The third reason is the high income compared with other labour jobs. As Youyuan, bornin 1994, told me, “I used to work in an electronic factory in Shenzhen. The work waseasy, but the salary was only 2,000 yuan per month. It was too little! I barely can live onit, let along supporting my family. I had to come back to construction site. This is theonly way that I could earn more.” In recent years, construction workers’ income hasincreased steadily. In 2014, a skilled plasterer could earn 400-500 yuan per day, while anunskilled worker could make roughly 150-250 yuan per day. This payment is much betterthan for most labour jobs in China, and even better than many “white collar” jobs. Forinstance, in 2015, in Hubei Province, the minimum income was only 1,550 yuan permonth. 109107 Juan Li, (January 18, 2015), Personal interview.108 Juan Li, (January 16, 2015), Personal interview.109 Huaxia Web, “The Minimum Income in Hubei Raised from September 1 (Jiu Yue 1 Ri Qi, Hubei29If the older generation of migrant workers chose to work in construction mainly becauseof high income, then the rural youth who now select this industry often do so because ofthe sense of freedom it affords. Xiong, born in 1990, explained, “We have more freedomwhen working in construction sites, because it is a day-to-day job. When to work andwhen to rest, I’m my own boss. There are many principles in factories. I get used to thefreedom in construction sites, and cannot bear those disciplines in factories.” 110 Weialso said, “Working on construction sites is like a drug. I am kind of addicted to it. It istoo exhausting, but I really enjoy the freedom. Every two or three years, I need to take a‘vacation’ and work in factories for a couple of months. But I return to construction siteevery time.”1111.4.3 Methodology – Oral HistoryAs Paul Cohen explains, the point of this research is to “get inside China,” and toreconstruct Chinese history as far as possible as the Chinese people themselvesexperienced it, rather than in terms of what Western people think is important, natural, ornormal.112 As such, this study explores the real experiences, thoughts, and feelings ofShangtiao Zuidi Gongzi Biaozhun),” August 10, 2015, accessed April 12, 2016,http://www.huaxia.com/xgtb/xgla/2015/08/4513640.html.110 Juan Li, (December 25, 2014), Personal interview.111 Juan Li, (February 5, 2015), Personal interview.112 Cohen, supra n. 8.30ordinary Chinese people. The methodology combines qualitative and quantitativeapproaches, with the qualitative approach mainly being oral history. Oral history researchis sometimes referred to as life history, personal narrative, self-report, memoir, testamentor testimony research, and storytelling.113 As Currie explains, oral history is an approachfound in the social sciences and anthropology, where a researcher reports on anindividual’s life, and how this life reflects broader cultural themes of a society and socialhistories.114 Maynes et al. believe that oral history is “a retrospective, first-personaccount of the evolution of an individual life over time and in social context.”115Thompson and Park define oral history as the interviewing of eyewitness participants toevents of the past, for the purposes of historical reconstruction. This allows for theconstruction of heroes not just from among leaders, but also from the unknown majorityof the people. It helps the less privileged find dignity and self-confidence.116 Portellihighlights that oral sources are credible, but represent a different credibility thanpositivist historical research demands. He emphasizes that oral history is where personal“truth” coincides with shared “imagination.” The definition of an experience, and themeaning individuals ascribe to it, is in fact more valuable than chronological accuracy.Individual testimonials made from memory and imaginations are this methodology’s113 Valerie Raleigh Yow, Recording Oral History: A Practical Guide for Social Scientists (CA: SagePublications. 1994).114 Dawn Currie, SOCI 503 Course Description (Vancouver, UBC, 2011).115 Mary Jo Maynes, Jennifer L. Pierce, and Barbara Lassett, Telling Stories: The Use of PersonalNarratives in the Social Sciences and History (Ithaca and London, Cornell University Press, 2008).116 Robert Perks and Alistair Thompson (eds.), The Oral History Reader (London: Routledge, 2006).31assets, not its faults.117 The most significant contribution of oral history’s methodology isto include within historical record the practices and views of groups who might otherwisehave been “hidden from history.”118In-depth interview is the key data collection method in oral history. Portelli emphasizesthat the interviewer must be aware that he or she is in a learning situation, and try toremain open. 119 Gelee reminds that we should see the interview as an exchange betweentwo subjects, rather than between subject and object.120 When I undertook thepre-fieldwork and fieldwork in China, I reminded myself of these tips all the time. Ibought a second-hand bike, and rode around the villages. I learned to give cigarettes tothe male residents with two hands when we met each other, which is a good way ofshowing respect in Xiaogan area. I learned to have meals with local residents on veryshort stools in their yards, without a table. In short, I fully respected the population andtheir customs, and proactively listened to their experiences with great interest.1.4.4 LimitationsThe first limitation of this study is the small example size. This only involved 34117 Allesandro Portelli, The Death of Luigi Trastulli and Other Stories (New York: State University of NewYork Press, 1990).118 Thompson, supra n. 11.119 Ibid.120 Perks and Thompson, supra n. 130.32participants due to funding and capability restrictions. Hence, the conclusions of thisstudy should be suggestive rather than definitive. For instance, the primary data indicatesthat host cities and educational background may have important impacts on migrantconstruction workers’ legal culture; however, it is hard to make solid conclusion based onsuch a small example size. The second limitation is the approach of recruitingparticipants. The intercept method may lead to the following drawbacks, includingself-selection, unweighted samples, and samples bias in friend-of-friend recruiting. All ofthese factors influence the validity of qualitative data collection.Another limitation of this study is the lack of female participants. I expected to find somefemale migrant construction workers. In my fieldwork, I learned that females are playingincreasingly important roles in the construction industry. In some families in ShuangfengTown, couples work together on construction sites, sometimes with their young adultsons. Normally, women serve as their husbands and sons’ assistants; women cook, mixcement, move materials, and take charge of money. There also have been an increasingnumber of skillful and strong Xiaogan female plasterers. For instance, in the firstPlasterer Festival of Xiaogan in 2012, Nei Fengyun, a 42-years-old Xiaogan woman wonthe first prize in the Plasterer Competition, ahead of all male competitors.121 It was a pitythat I could not get any female construction workers to participate in this study. Although121 Yang Zhang and Wei Luo, “Xiaogan Plasterers, Earn 20 Billion Per Year,” Jingchu Net, February 19,2012, accessed May 4, 2015, http://news.cnhubei.com/gdxw/201202/t1977853.shtml.33the overall proportion of women in the construction industry is still not significant,whether female migrant construction workers’ legal culture is different from males isworthy of further study.34Chapter 2 Literature Review2.1 IntroductionOver the past four decades, two profound developments have reshaped the sociallandscape of Chinese society. The first is the dramatic development of a formal legalsystem; the second is the explosion in the number of migrant workers.1 Although therehas been an increasing amount of literature that explores the legal culture of China fromvarious perspectives, and significant work on internal migration, there remains a gap inliterature on the migrant workers’ legal culture. This study aims to fill this research gap,and explore migrant workers’ values, ideas, opinions, and attitudes with respect to thelegal system and legal reform in China, within the context of market economic reformand globalization.This chapter is comprised of three sections of background introduction and literaturereview. The first section discusses the theoretical aspects of this study. Theoretically,studies of legal culture overlap with social theories of law. Given that most of the legalsystem and regulations in contemporary China are transplanted from the West, and thatnotable tensions exist between imported legal norms and embedded local values, it is1 Aron Halegua, “Getting Paid: Processing the Labour Disputes of China’s Migrant Workers,” BerkeleyJournal of International Law 26.1 (2008): 254; Yun Zhao, “China’s New Labour Dispute Resolution Law:A Catalyst for the Establishment of Harmonious Labour Relationship?” Comparative Labour Law andPolicy Journal 30.2 (2009): 409.35helpful to explore legal transplant theory, the social theories of law, and the debatebetween these two clusters of theories, starting in the 1980s. This section also exploresthe example of legal transplant in Japan in order to demonstrate that the transplanted legalsystem has not successfully been integrated into Japanese society, given that Japan is stilldominated by traditional culture, oriented by Confucianism.2 Drawing on the literaturereview on theory, this section explores how the evolution of the legal system and legalculture in Eastern societies, such as Japan and China, is more like a process of adaptation,rather than transplantation from the West.The second section reviews the literature on the legal culture of China, including bothEnglish and Chinese sources. It mainly focuses on resistance from the local culture andpolitical authorities to imported legal norms, such as the rule of law. It also elaborates thetraditional legal culture in imperial China, as well as the significant differences in legalculture between China and the West from an historical perspective. Finally, the lastsection reviews literature on internal migration in contemporary China. This sectionexplores contentious issues, both in English and Chinese literature, and argues that thelegal culture of migrant workers, especially of migrant construction workers, has thus farlacked comprehensive examination.2 Takao Tanase, “The Empty Space of the Modern in Japanese Law Discourse,” in Adapting Legal Cultures,ed. David Nelken and Johannes Feest (Portland, OR: Hart, 2001).362.2 Legal Transplant theory VS Social Theories of Law2.2.1 Legal Transplant TheoryThere are many metaphors to describe the process of China’s legal development since1840. One of the main tropes is “legal transplant,” which means the moving of a rule or asystem of law from one country to another, or from one people to another.3 According toPeerenboom, legal transplant suggests a teleological development toward a fixedtermination whereby legal systems will grow into a liberal democratic rule of law. Sometransplants may not survive, or fail to grow, depending on the different social and culturalconditions in a certain society.4 The legal transplant theory has been supported orchallenged by many scholars, both in English and Chinese.5Watson is the most important contributor to legal transplant theory. He believes that legalhistory provides a better comprehension of legal development; hence, any theory of therelationship between law and society must rest on the detailed history of certain legalsystems.6 Based on voluminous and detailed studies of Roman law and the developmentof the civil law system, Watson argues that legal changes are primarily to be explained by3 Alan Watson, Legal Transplants: an Approach to Comparative Law (Charlottesville: University Press ofVirginia, 1974), 22.4 Randall Peerenboom, China Modernizes: Threat to the West or Model for the Rest? (Oxford: OUPOxford, 2007).5 Li Su, Rule of law, and its Local Resources (Fazhi jiqi Bentu Ziyuan) (Beijing: China University ofPolitical Science and Law Press, 2004); Zhiping Liang, Interpretation of Law, the Past, Current, andFuture of Law in China (Fa Bian, Zhongguo Fa de Guoqu, Xianzai, he Weilai) (Beijing: China Universityof Political Science and Law Press, 2004); Randall Peerenboom, supra n. 4.6 Alan Watson supra n. 3.37legal transplants, and legal transplants have been the most fruitful source of legaldevelopment in the Western world.7 Watson explains that this “transplant bias” ofWestern legal system is because of the nature of the legal profession; Watson argues thatlaw is treated by the legal elite as existing in its own right; moreover, law has to bejustified in its own terms: authority must be sought and found. These two features makelaw integrally conventional.8 Due to the same or similar legal education and professionalknowledge, lawyers and lawmakers from different societies often share the same legalculture.92.2.2 Social Theories of LawHowever, social theories of law provide different opinions on the recourse of law fromthe legal transplant theory. Based on the historical study of legal development in the US,Friedman claims that law is “not as a kingdom unto itself, not as a set of rules andconcepts, not as the province of lawyers alone, but as a mirror of society.”10 As Friedmanexplains, the law “will follow every twist and turn of development. The law is a mirrorheld up against life.”11 According to Friedman, “social theories of law,” which was called“mirror theories” by Watson, describes theories whose premises deny any notion of legal7 Alan Watson, The Evolution of Law (Oxford: Basil Blackwell, 1985),118-120; Alan Watson, supra n. 3.8 Ibid9 Ibid; also Watson, supra n. 3.10 Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), 12.11 Ibid, 595.38“autonomy.” They treat law as a dependent variable, and believe that some “non-legal”forces, including economic, social, cultural or political forces, are shaping and reshapinglegal institutions and legal systems.12 Historically this class of theories appeared in the18th century.13 For instance, Montesquieu declares, “The political and civil laws of eachnation should be so closely tailored to the people for whom they are made, that it wouldbe pure chance if the laws of one nation could meet the needs of another.”14 Montesquieustates that laws in a certain society should be related to the natural, cultural, and politicalconditions, and that these factors constitute the “spirit of laws.”15 Holmes states that thelife of the law is not based on logic, but rather on experience. The law embodies thenarrative of a nation’s development over centuries, and cannot be dealt with as amathematics book, with corollaries and formulas.16 Chu highlights, as one type of socialcontrol, how law closely relates to customs and mores. It retains and affects existingvalues and institutions, and mirrors the social structure of a society.17 Savigny, Hegel,Marx, Jhering, Pound, and many other great thinkers have made similar statements.1812 Lawrence M. Friedman, “Law, Lawyers, and Popular Culture,” The Yale Law Journal 98 (1989): 1580.13 William Ewald, “Comparative Jurisprudence (II): The Logic of Legal Transplant,” The AmericanJournal of Comparative Law 43 (1985): 489.14 Charles de Secondat baron de Montesquieu, The Spirit of Laws, translated from French of M. deSecondat, Baron de Montesquieu (London; Edinburgh: A. Donaldson, 1768), Book I, Ch. 3.15 Ibid.16 Oliver W. Holmes, The Common Law (Cambridge: The Belknap Press of Harvard University Press,2009).17 Tsu Tung Chu, Law and Society in Traditional China (Beijing: The Commercial Press, 2011).18 Alan Watson, Legal Transplants: An Approach to Comparative Law (Charlottesville: University Press ofVirginia, 1974): 22; Alan Watson, “Legal Change: Sources of Law and Legal Culture,” University ofPennsylvania Law Review 131 (1983), 1156-1157; David Nelken, “Towards a Sociology of LegalAdaptation,” in David Nelken and Johannes Feest, supra n. 2: 8.392.2.3 Debate on Legal Transplant TheoryNot surprisingly, Watson’s theory of legal transplant engendered attacks from differentdisciplines, including sociology of law, traditional comparative law, and legal history. Forinstance, Friedman claims that Watson’s premises are unfounded. He highlights that legalsystems change rapidly according to their environments, especially in modern times. Theinfluence of society is overwhelming.19 Nelken also argues for legal changes in responseto social developments, and that law is an instrument and consequence of group conflict.He argues that Watson’s statement that law is the special province of lawyers, and doesnot serve normal citizens’ interest, is faulty, especially in modern times.20 Abel alsochallenges that Watson treats society “as an undifferentiated, personified whole,” andignores the differences between social groups and classes.21 Legrand argues that a rule isnever totally self-explanatory, but rather is decided by context. Imported words areinevitably ascribed a different, local meaning; in turn, this produces a different rule.Therefore, according to Legrand, “legal transplant” does not actually happen.22In contrast to these critiques, Ewald believes that Watson’s theory of legal transplant is of19 Lawrence M. Friedman, “Some Commends on Cotterrell and legal transplants,” In David Nelken andJohannes Feest (eds), supra n. 2.20 David Nelken, “Towards a Sociology of Legal Adaptation,” in David Nelken and Johannes Feest, supran. 2.21 R. L. Abel, “Law as Lag: Inertia as a Social Theory of Law,” Michigan Law Review 03 (1982).22 Pierre Legrand “What “Legal Transplants”? In David Nelken and Johannes Feest, supra n. 2.40great importance, for legal history, comparative law, and legal philosophy. Ewaldexplores that there are two versions of Watson’s transplant theories: the weak version andstrong version. Ewald claims that the “weak version” of Watson’s theory is sufficient toscupper the traditional social theories of law. Because of the traditions of legal elite and“transplant bias” of Western legal systems, legal changes are not always in response toexternal factors; sometimes they respond to internal desires of the legal system itself.Hence, Ewald concludes that the notion that law reflects every need of a society isunreasonable. However, the strong version of Watson’s argument, which means the legaldevelopment is only the outcome of purely legal history, can easily be challenged. Ewaldalso highlights that Watson’s research focuses only on the private law in Western Europe,and he cannot draw conclusions about law in general.23The debate between social theories of law and the theory of legal transplant illustrates thecomplex, interactive, and multi-layered relationship between law and society.24 Friedmanand Abel both claim that Watson treats law as words on paper, not as a living process thatinvolves the lived behavior of legal elites and ordinary citizens. 25 Watson admits that thesubject of legal transplant is the “law in books.” However, he believes that legal behavioris hemmed-in and restricted by rules of positive law.26 From this perspective, the theory23 Ewald, supra n. 13.24 Ibid.25 Friedman, supra n. 19; Abel, supra n. 21.26 Watson, supra n. 18.41of legal transplant and social theories of law have different standards on the “success” oflegal transplant. What is a successful legal transplant? According to Cotterrell, thetransplantation of positive rules is unproblematic; but, if we treat law as a living process,legal transplant will not succeed unless the imported rules have considerable influence onrelevant aspects of social life.27 Obviously, scholars of social theories of law believe thatthe evolution process of the legal system in certain societies is one of adaptation ratherthan a simple process of transplantation from the West.When exploring the theory and practice of legal transplanting, it is meaningful to explorethe case of legal transplantation in Japan. Same as China, the society of Japan had beendominated by the traditional culture oriented by Confucianism for many years. WhileJapan decided to adopt economic, social, and legal reform during Meiji Periond. Modernlegal system and codes have been transplanted from the Western world ever since. Hence,Japan is often regarded as a successful example of legal transplant.28 However, Tanasechallenges that the transplanted legal system has not been successfully integrated into theJapanese society, given that it is still dominated by traditional culture oriented byConfucianism. The imported law has created a sense of inauthenticity. Although Japan isa highly industrialized society, Japanese people feel that the core of modern society ismissing, and that Japan lacks the vital features of modern society. One of those missing27 Cotterrell, “Is There a Logic of Legal Transplants?” In Nelken and Feest, supra n. 2.28 Tanase, supra n. 2.42features is the value of rule of law.29 This leads to a question: what if Japan did notdecide to transplant a Western legal system during the Meiji period, what would theJapanese law be like today? Friedman predicts that it would not be essentially different.The law in Japan would not be stuck hopelessly in the past; on the contrary, it would haveadapted itself to the industrial society anyway, promptly.30 This study’s findings supportFriedman’s statement, to some extent. Although the imported Western norms and values,including contract, litigation, trade union, rule of law, and rights, only have limitedinfluence on migrant workers’ legal culture, and on their behaviors, migrant constructionworkers still have growing power and confidence to protect their own interest because ofeconomic and social changes to the Chinese society since the beginning of 2000s – apoint that will be elaborated on in following chapters.2.3 Legal Culture of China2.3.1 Resistance to Rule of LawThere has been a growing body of literature on the legal culture of China, from differentperspectives, in recent years. Much literature explores the resistance from the localculture and political authorities in China toward the imported legal norms of rule of law.For instance, Potter explores the notion of law as instrument and punishment in ancient29 Ibid.30 Friedman, supra n. 19.43China; he notes that law still serves as an instrument of rule for the CPC, and aimsprimarily to protect political organizations.31 McAuley highlights that the resiliency oflocal norms despite of new institutional arrangements is a significant element of thepolitical and legal culture in China.32 Bodde et al. also note that in China, ordinarypeople’s awareness and acceptance of legal norms was shaped far more by the persistentimpact of local custom and traditions than by any formal legal system.33 Head alsomakes the point that China does not aspire to an essential rule of law, such as domesticforms of government or liberal individual-centered conceptions of human rights, despiteits legal development over past decades.34 Minzner states that Chinese authorities haveturned against law ever since 2000s, and rejected many legal reforms in the 1980s and1990s. According to Minzner, the CPC has relied more on political levers to reshape theChinese judiciary, and have nudged judges toward mediating, rather than adjudicating.These changes reflect that the CPC authorities are endorsing tighter control over thejudiciary, and are attempting to reduce the influence of the rule of law in the society.Minzner argues that these changes may have severe long-term influences in undermining31 Pitman B. Potter, China’s legal system. (Malden; Cambridge, UK: Polity, 2013); also Pitman B. Potter,“Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms andPractices.” Washington University Global Studies Law Review 2(2003): 119.32 M. McAuley, “Political Culture and Communist Politics: One Step Forward Two Steps Back,” PoliticalCulture and Communist Studies (1984).33 Derk Bodde, Clarence Morris, and Ch’ing-ch’i Chu, Law in Imperial China: exemplified by 190 Ch’ingDynasty cases (Cambridge, Harvard University Press, Mass, 1967), vol.1.34 John W. Head, Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical andOperational Perspective (Durham: Carolina Academic Press, 2011): 560-573.44Chinese legal institutions.35 Biddulph et al. argue that in China law is understood in thebroad sense as including rules and regulations issued by actors other than legislativeorgans, including ministries, local governments, firms and unions, as well as proceduresfor implementation and dispute resolution. It is difficult to draw a sharp distinctionbetween politics and law in the Chinese setting. 36A great deal of literature explores the legal culture in China from comparative andhistorical perspectives, and illustrates the relationship between “traditional” and“modern” China. According to Gasster, modernization is an ongoing process ofadjustment, moving toward modernity, but never actually reaching it.37 Paul Cohen alsochallenges a theory that divides societies into “traditional” and “modern” phases ofevolution. He highlights that most societies are mixtures of the modern and the traditional,not one or the other.38 Paul Cohen also challenges the traditional“Western-impact-and-Chinese-response” approach in the West. He advocates a“China-centered” approach to understand the Chinese history in its own terms, by payingmore attention to Chinese perceptions, rather than the perceptions and expectations35 Carl F. Minzner, “China’s Turn against Law,” The American Journal of Comparative Law 59.4 (2011):935.36 Sarah Biddulph, Sean Cooney, and Ying Zhu. Law and Fair Work in China. London: Routledge, 2012.37 Michael Gasster, “Reform and Revolution in China’s Political Modernization,” in Mary C. Wright (ed.),China in Revolution: The First Phase, 1900–1913 (New Haven: Yale University Press, 1968): 83.38 Paul. A. Cohen, China Unbound, Evolving Perspectives on the Chinese Past, (London: RoutledgeCurzon,2004).45derived from Western history. He underscores that, “Perspective, indeed, is everything.”39Liang also emphasizes that there is no clear boundary between past, present and future,and tradition does not only exist in the past, but also exists in the present. He argues thatalthough China’s entry into modern society was initiated by learning from the West, it canonly reach modernity by updating and reconstructing traditions.402.3.2 Traditional Legal Culture of ChinaChinese legal development is sharply different from the Western civilizations in manyways because of different narratives and histories.41 In previous centuries, China was ahighly centralized state. The premature and delicate political system was established in221 B.C.42 Huang investigates the unification of Chinese agricultural civilization,arguing that a centralized political system was determined by natural conditions,including the cultivable loess, frequent natural disasters, and constant invasion from thenomad nations, among other factors.43 Hou elaborates that the Western civilization wasdeveloped from “family” to “private,” and then to “state.” The Romans separated “state”from “family” from the beginning of Western civilization. While, in China, and in mostEastern societies, the civilization evolved from “family” directly to “state.” There was39 Ibid.40 Liang, supra n. 5.41 Derk Bodde, Clarence Morris, and Ch'ing-ch'i Chu, supra n. 33; Wailu Hou, History of Chinese AncientSociety, (Beijing, Shenghuo-Dushu-Xinzhi Joint Publishing Company, 2012). The first edition of this bookwas published in 1949.42 Hou ibid; Ray Huang, China: AMicro-History. (Beijing: Shang Wu Press, 1997).43 Huang, ibid46never a process of completed separation of “family” and “state” in Chinese history. The“family” and “state” are always integrated.44 In fact, the Chinese term of “state” (Guojia)includes two words: Guo (state) and Jia (family), which indicates that the boundarybetween “state” and “family” in ancient China was never clear. “The emperor of a state”(Jun) and “the father of a family” (Fu) were considered similar, and “state” was anextension of “family.”45 Moreover, different from the religious-grounded civilizationprocess in the West, the process in China was towards a totally secular civilization. InChina, there has never been a religion like Christianity, and there has never beenopposition between spiritual and secular worlds. The “religion” in ancient China was thehighly moralistic Confucianism, which is a system of ethics that is restricted to humans.The dominance of Confucianism in China made for a much greater role for moralism inboth governance and law.46In imperial China, law is only considered an instrument to punish serious immoralbehaviors. 47 Some studies explore the penal emphasis of the law in imperial China.They find that the civil nature of law was mostly ignored, or was given only limitedattention within its penal format.48 For instance, Bodde et al. demonstrate that a major44 Hou, supra n. 41.45 Liang, supra n. 5.46 Philip C. C. Huang “Morality and Law in China, Past and present,”Modern China 41.3 (2015); Bodde,Morris, and Chu, supra n. 33.47 Potter, supra n. 31.48 Bodde, Morris, and Chu, ibid; Liang, supra n. 5.47concern of the law in ancient China was moral or ritual impropriety, or violence of thetotal social order and harmony. Hence, the law in ancient China always worked in avertical direction, from the state down to the individual, rather than horizontal mechanicsbetween two entities. Rights were not the interest of the law in imperial China.49 Liangargues that the legal system in ancient China was a kind of moralized law, or legalizedmorality, called “Li Fa system” (courtesy system with penalty). The penalty of the “Li Fasystem” was not only punishment from authorities, but also a symbol of shame, becauseonly immoral behaviors would be punished. Such a legal system is devoid of the religiousbasis found in Western law.50 As Confucius exclaimed, “If governing a society bypolitics and penalty, people do not want to be punished, but they do not feel shame; ifgoverning a society by morality and courtesy, people feel shame and behaveappropriately.”51 Therefore, what can arouse people’s respect and belief in traditionalChina was morality and courtesy, rather than law or penalty.52The most important word in the Chinese legal vocabulary is Fa, which is the generic termfor positive law as an abstraction, and can also mean separate “laws.”53 In the ancientChinese book, Explanations of language and words (Shuo Wen Jie Zi), Fa means “as flat49 ibid.50 Zhiping Liang, “Death and Rebirth,” in Zhiping Liang, supra n. 5; Xiuao Tao, Confucian philosophy andWestern philosophy. Their history mission in the modern era. (Rujia Zhexue He Xifang Zhexue Tamen DeLishi Shiming He Dangdai Xianghui) (Beijing: Chinese Social Publication, 2009).51 Weizheng, in Lun Yu, in Bojun Yang (eds.), Notes on Lun Yu, (Beijing, China Publishing, 2006). Theoriginal sentence is: “道之以政，齐之以刑，民免而无耻；道之以德，齐之以礼，有耻且格.”52 Liang, supra n. 50; Tao, supra n. 50.53 Bodde, Morris, and Chu, supra n. 33.48as water, and as straight as ruler.” The symbols of water and ruler represent justice andequality.54 In imperial China, Fa was a model or standard imposed by authorities towhich the people must conform.55 The word Fa is derived from Fa doctrine, whichappeared in the Chunqiu Period (770 B.C. – 476 B.C.). The Fa doctrine posits that theauthority must rely on harsh rules and cruel punishment to govern a society. Qin ShiHuang, the first emperor of China, who unified China in 221 B.C., adopted the theory ofFa doctrine, and meted out harsh penalties to govern society.56 The Qin Dynasty was theonly one to adopt Fa doctrine in China’s history, and also boasted the shortest duration,lasting only fourteen years.57 The Fa doctrine had never played as a dominant socialnorm in China ever since the fall of the Qin Dynasty.58 The word “Fa” is derived from,and influenced by, Fa doctrine. Hence, the law in imperial China emphasized the penalaspect of law. Fa doctrine had its time of prominence in Chinese history, but wasovertaken by Confucianism from the Han Dynasty. The highly centralized politicalsystem built in China thousands of years ago required implicit morality and a strict familyethic as the basis of the social order, rather than explicit rules and regulations.59Among nearly one hundred doctrines emerged during the Chunqiu and Zhanguo periods54 The original book was published in Han Dynasty, around 100 A.D. – 121 A.D. See Xu Shen,Explanations of language and words (Shuo Wen Jie Zi) (Beijing, Zhonghua Publishing, 2013) 58.55 Bodde, Morris, and Chu, supra n. 33.56 Qian Sima (145 B.C. - Unknown) Records of History (Shi Ji). Volume 6, Qin Shi Huang Records (QinShi Huang Benji) (Beijing: Huaqiao Publishing of China, 2013).57 Wenxian Zhang, Jurisprudence (Fa Li Xue), (Beijing: Beijing Law Publication, 2006), 28-31.58 Kaiyuan Li, Collapse of Qin Empire (Qin Diguo De Beng Kui), (Beijing: Zhonghua Publication, 2007).59 Huang, supra n. 42.49(B.C.475 – B.C.220); three of them were most famous, namely Fa, Mo, and Ru(Confucianism). One can describe the Fa doctrine as based in realism, the Mo doctrine asidealism, and Confucianism as “Ideal Realism” or “Realistic Idealism.”60 Confucianismis the only doctrine that continues to thrive, and established the general social norms andsocial order in China. Toynbee highlights that Confucianism is a completely rationalpolitical and life philosophy.61 According to Liang Qichao, the core ideas of Confucianphilosophy are Xiu Ji An Ren, which means that gentleman should cultivate himself first,thereby bringing peace and security to the people; and Nei Sheng Wai Wang, whichmeans possessing a moral inside, while a strong outside.62 According to Confucianism,people should first focus on their inward worlds, fostering good morals and virtues,acquiring knowledge, and making themselves “gentlemen” (Jun Zi); then, they should tryto support the authority to make the world better. No matter whether they are givenopportunities by the authorities, gentlemen should never stop fostering their inwardmorality and virtues.63Confucianism believes that the best way to govern a society is to educate and cultivatepeople through good morality, and rely on Li (Courtesy system), which covers the entirerange of ritual or polite behavior, secular as well as religious. This covers all institutions60 Tao, supra n.61 Arnold Toynbee, Ikeda Daisaku, and Richard L. Gage (eds.), Choose life: A Dialogue. (London: OxfordUniversity Press, 1976).62 Qichao Liang, Confucian Philosophy (Ru Jia Zhexue) (Beijing: China Book Company, 2015).63 Ibid; Tao, supra n. 50.50and relationships, both political and social, and makes for harmonious living in aConfucian society.64 In general, the main rules of Li can be categorized as “SangangWuchang,” the three cardinal guides and the five constant virtues. The three cardinalguides are as the followings: ruler guides subject, father guides son and husband guideswife. The five constant virtues include Ren (kindness and generous), Yi (upright andselfless), Li (courtesy and rites), Zhi (wisdom and knowledge), and Xin (mutual trust andhonest).65 The emergence of “Sangang Wuchang” marks the beginning of the institutionalConfucianism from the Han Dynasty. After generations of reinforcement, theseConfucian norms and values are considered as the nature of human beings, and are deeplyembedded into Chinese society.66China’s traditional legal culture was “majority by morality, secondary by law as penalty”(De Zhu Xing Fu). Confucius claimed that one of his political dreams was to have “nolawsuits” (Wu Song).67 As Bodde et al. explain, Confucians’ attitude toward law wasbitterly hostile, especially in its early stages. Later, they softened their attitude andaccepted law begrudgingly as a necessary evil.68 Liang highlights that there was no clear64 Bodde, Morris, and Chu, supra n. 33.65 Guangdong Xu, The Establishing of San Gang Wu Chang, from Dong Zhongshu dao White TigerCollections (San Gang Wu Chang de queli he xingcheng, cong Dong Zhongshu Dao Baihuji (Beijing:China Book Company, 2014).66 Tao, supra n. 50.67 Qiang Ren, Knowledge, belief, and surpassing, interpretation of Li Fa System of Confucianism(Zhishi,xinyang, yu chaoyue, rujia lifa sixiang jiedu) (Beijing: Beijing University Press, 2009): 200-204; Tao supran. 50; Bodde, Morris, and Chu, supra n. 33.68 Bodde, Morris, and Chu, supra n. 33.51boundary between law and morality in ancient China. He underscores the idea that as adaily ethic, Confucianism had more fundamental and thorough influence on China’ssociety than Christianity had in the Western world. It is even harder to remove suchinfluences.69 Huang highlights this notion, arguing that the joining together of law andmorality is the essential feature of traditional legal culture in China, and will remain amajor characteristic of Chinese law in the future. Due to the influence of this traditionallegal culture, the legal system in China also presents a preference for mediation overadjudication. The purpose of informal mediation is to achieve “harmony.” 70 Of course,the traditional local values in China are also influenced by Legalism, Taoism, Buddhism,and some other philosophies, even some of these values are not of Chinese “origin.” Theyare embedded into the Chinese society to some extent during hundreds of years ofselective adaption.Conservative literature has held that imperial China’s judicial system was highlydraconian and only a means for a powerful state to oppress and control society. However,recent scholarship on legal history in China has essentially challenged this view.71 Forinstance, Macauley demonstrates that the judicial system in imperial China was notmerely a repressive social mechanism. Agents at all levels of society operated, negotiated,69 Liang, supra n. 5.70 己所不欲勿施于人.71 Lean, Eugenia. Melissa Macauley, Social Power and Legal Culture: Litigation Masters in Late ImperialChina, Stanford: Stanford University Press, Law and History Review 22 (3) 2004: 650.52and appropriated different aspects of the legal arena to their own advantage. Macauleyexplores that despite the official condemnation, litigation masters and their practices werean integral part of the systemic order of formal dispute resolution in the late imperialperiod in China. 72 Zelin et al. also challenge the conservative view that there was not aviable civil law that protected people and their property, they examine the important rolethat contracts and other written documents have played in everyday relationships andtransactions in China. According to Zelin et al., contracts have not only been useful sinceancient times for negotiating daily life, but they also were helpful for spreading theprocess of “commodification” throughout Chinese society in the early modem era. 732.3.3 Ambivalent Attitude of the RegimeDue to different history and narrative, the imported value of “rule of law” seems notbeing supported from either traditional Chinese culture or the Party regime. It took longtime to integrate the “rule of law” in China. At the establishment of the PRC, the Chineselegal system was transferred from a patchwork Civil Law system to a Socialist legalsystem copied from the Soviet Union. According to classic Marxism, law is an instrumentof class struggle, “a tool that the dominant group uses to govern the ruled classes.”7472 Melissa Ann Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China.Stanford, Calif: Stanford University Press, 1998.73 Zelin, Madeleine, Jonathan K. Ocko, and Robert Gardella. Contract and Property in Early ModernChina. Stanford, Calif: Stanford University Press, 2004.74 Karl Marx, On Capital II (Beijing: People Press, 2004), 267.53Therefore, the legal system was still dominated by the CPC, and was far fromindependent. As Peng Zhen, former president of the National People's Congress in theearly 1950s said, the “CPC leads us to make a law, and also leads us to enforce the law.”75Unfortunately, the primary leader of the CPC, Mao Zedong, did not hold a respectfulattitude towards law. He once said, “We need the law, but we cannot be ruled by thelaw.”76 In 1958, Mao reiterated this point, stating, “Many new things have an illegalstart.”77 Because of this attitude from the top leader, the Socialist legal system was notpaid much attention in society, as a whole. Soon, contempt became obliteration. In 1966,the Cultural Revolution was initiated in order to enhance control over the proletariat.78 Inthe process, political institutions such as the legal system were totally destroyed. Theeconomy collapsed, and society devolved into chaos.The Party leadership recognized the importance of law because of the painful lessonslearned from Cultural Revolution. Deng Xiaoping once stated, “Ruling the country byman, even a man as great as Chairman Mao, is not stable. Man makes mistakes. ‘Rule oflaw’ is more stable.”79 The Third Plenary Session of the 11th Central Committee of CPCwas the formal start of market economy reform. Its Public Report announces, “In order to75 Lisan Jiang, Legal Modernization in China (Zhong Guo Fa Zhi Xian Dai Hua Zhi Lu) (Beijing: ChinaLegal Publishing House, 2006), 16576 Rui Li, Later Years of Mao Zedong (Wan Nian De Mao Ze Dong) (Chun Qiu Publishing, 1999): 13.77 Ibid: 18.78 Xuan Xi and Chunming Jin, Brief History of Cultural Revolution (Wen Hua Da Ge Ming Jian Shi)(Beijing: CPC History Publishing, 2006). 3.79 Deng Xiaoping, Selected Works of Deng Xiaoping (Deng Xiao Ping Wen Xuan) (Beijing, People Press,1993), 212.54protect the People’s Democratic Dictatorship, Socialist ‘rule of law’ must be enhanced.The legal system must be stable, coherent, and authoritative. There must be laws to go by,the laws must be strictly enforced, and law-breakers must be punished.”80 This is alsoconsidered the formal start of Chinese legal reform. Law is still regarded as an instrument;however, it is an instrument for securing economic growth, rather than class struggle. The9th National People’s Congress amended the Constitution of the People’s Republic ofChina in 1999, and added the 5th Article: “People’s Republic of China implements therule of law, and builds a socialist country under the rule of law.”81 This is a cornerstoneof the legal reform in China, and “rule of law” finally became legitimate.However, the Party leadership maintains an ambivalent attitude towards legal reform and“rule of law.” On one hand, it realizes the significance of a “rule of law” in marketeconomic reform; on the other hand, it feels threatened that the “rule of law” may havenegative influences on its dictatorship. Right after amending the Constitution, JiangZemin, the former president of the PRC, declared in 2000, “We should pay equalattention to ‘rule of law’ and ‘rule of morality’.”82 In 2004, in the 16th Central Committeeof the PRC, President Hu Jintao, proposed that China would establish a ‘HarmoniousSociety’. The official explanation for a “Harmonious Society” is one where every80 Ibid, p. 205.81 Constitution Law of the PRC. 1999. Art 5.82 News of the Communist Party of China, “Central ideological and political work conference (Zhongyangsixiang zhengzhi gongzuo huiyi),” accessed December 5th, 2016,http://dangshi.people.com.cn/GB/151935/176588/176597/10556650.html.55individual has a high level of morality, and diverse classes and groups coexist andcooperate harmoniously.83 This obviously is a variant of “rule of morality.”2.3.4 Three Theoretical Models of Legal Evolution in ChinaThere has been a greater body of literature that focuses on legal culture and legalevolution in China in recent years. According to Jiang, there have been three theoreticalmodels of legal evolution in China: the legal-modernity model, the civil-society-and-statemodel, and the local-resource-and-rule-of-law model.84 Many scholars have madecontributions to the legal-modernity-model, which originated in the 1990s. For instance,the work of Gong Pixiang, Xie Hui, Yao Jianzong, and Jiang Lishan focused primarily onlegal modernity, the format, entity and motivations of rule of law, as well as standardsand directions of legal modernity.85 Deng Zhenglai is an important representative of the83 Xinhua Net, Bulletin of the Sixth Plenary Session of the Sixteenth Central Committee of the CommunistParty of China, (Zhongguo Gongchandang dishiliu jie Zhongyang Weiyuanhui diliu ci quanti huiyigongbao), accessed December 5, 2016,http://news.xinhuanet.com/politics/2006-10/11/content_5190605.htm.84 Lishan Jiang, Legal Modernity, Research on Rule of Law in China (Falv xiandaihua, Zhongguo fazhidaolu wenti yanjiu) (Beijing: China Legal Publishing House, 2006): 4-12.85 Pixiang Gong, Evolution of Legal Modernity in China (Zhongguo fazhi xiandaihua de jincheng) (Beijing:People’s Public Security University Press, 1991); Pixiang Gong (ed), Revolution of Law in Modern China(Dangdai Zhongguo falv geming) (Beijing: Law Press, 1999); Pixiang Gong, Philosophy of Law and LegalModernity (Fa zhexue yu fazhi xiandaihua) (Nanjing: Nanjing Normal University Press, 1998); LishanJiang, “Analysis of the Characteristics of Legal Modernization in China (Zhongguo fazhi xiandaihuajianshe tezheng fenxi),” Chinese and Foreign Jurisprudence 4 (1995); Lishan Jiang, “Basic Framework andImplementation Steps of Legal Reform in China (Zhongguo fazhi gaige wenti jiben kuangjia he shishibuzhou),” Chinese and Foreign Jurisprudence 6(1996); Lishan Jiang, “Research on Legal Reform andProcess of Rule of Law in China (Zhongguo fazhi gaige he fazhihua guocheng yanjiu),” Chinese andForeign Jurisprudence 3(1998).56civil-society-and-state-model, which explores the current situation of civil society inChina, and predicts its future development.86 Su highlights the importance of learningand making good use of “local resources” in order to achieve legal modernity in China.He believes that China will establish a Chinese-style “rule of law” in the future, adaptingto the emerging market economy. This, he argues, can only be achieved with localresources, which include historical traditions, but also legal practices of the people inmodern China, as well as formal and informal orders and norms. The transplanted rulesare always different from Chinese people’s customs and habits, and are hard to accept, atleast at first; therefore, people often choose to avoid formal laws, instead turning totraditions and customs. This contributes to the ineffectiveness of the formal legal systemin China.87Liang Zhiping is often considered the pioneer of legal culture studies in China.88 Liangdedicates to interpreting the law by culture, and interpreting culture by the law. As he86 Zhenglai Deng, State and Society, Research on Civil Society in China (Guojia yu Shehui, ZhongguoShimin Shehui Yanjiu) (Chengdu: Sichuan People’s Press, 1997); Zhenglai Deng (ed.), State and CivilSociety, Research Path in Sociology Study (Guojia yu shimin shehui, yizhong shehui lilun de yanjiu lujing)(Chengdu: Sichuan People’s Press, 1999).87 Li Su, supra n. 5; Duanhong Chen, “Confrontation, from Administrative Litigation to See the Way outof China’s Constitutional Government (Duizhi, cong xingzheng susong kan Zhongguo xianzheng chulu),”Jurisprudence in China and Foreign Countries (Zhongwai Faxue) 4 (1995): 6.88 Qinhua He, Weifang He, and Tao Tian (eds.), Legal Culture, Talks by three Scholars (Falv Wenhua SanRen Tan). Beijing: Peking University Press, 2010, 11. Liang published a series of articles regarding legalculture in China in the 1980s. these articles are collected in Liang’s two books, Seeking Harmony inNatural Order, Research on Chinese Traditional Legal Culture (Xunqiu Ziran Zhixu zhong de Hexie:Zhongguo Chuantong Falv Wenhua Yanjiu), and Interpretation of law, past, present, and future of law inChina (Fa Bian, Zhongguo Fa de Guoqu, Xianzai, he Weilai).57explains, “Law reveals the life style of a certain group of people at specific time, but alsothe belief system of this social group.” 89 Liang emphasizes “interpreting” and“differentiating” the culture symbols, based on social and economic situations of a certainsociety. According to Liang, since the 19th century, all reforms, revolutions and culturaldebates can all be considered part of an unprecedented cultural crisis, and persistentefforts of Chinese people to overcome these crises.90Increasing literature explores legal reform in China from a cultural perspective. Forinstance, Xing explores how recent changes in China’s legal culture are being influencedby the two philosophies of good governance, currently emphasized by the country’sleadership: the rule of law and social harmony. Focusing specifically on criminalprocedure, Xing investigates the core of China’s current legal culture – the combinationof the rule of law and social harmony, and analogizes it with the mixture of Confucianismand legalism in imperial China.91 There is also a great deal of literature that investigateslegal transplant in China. For instance, Zhang demonstrates the three obstacles ofapplying legal transplant in modern China; namely, the contradiction between themotivation and result of legal transplantation, the distance between legal text and practice,and the distance between the ideal of legal elites and less-developed society. Zhang also89 Liang, supra n. 5.90 ibid.91 Lijuan Xing, “The Rhyme of History: a Transition of Legal Culture in China Crowned by the CriminalProcedure Law 2012,” Asia Pacific Law Review 23.1 (2015): 31.58emphasizes that the foundation of laws is the history and local culture, without whichlegal transplant is difficult to accomplish.92 King explores that as a latecomer, China’smodernization needed more than transplanting Western ideals, such as science anddemocracy, justice, liberty, and rule of law. It was also critical for China to decide whatkind of modernization it wanted. King claims that during the century-long process ofmodernization, we saw little cool-headed, self-reflective thinking in this regard.932.4 Internal Migration in ChinaMany studies have examined internal migration in China. 94 Most literature in this areafocusing on the political and legal changes, the rights violations, labour protests,migration experiences, labour mobility, physical and psychological health, and relatedfamily issues.2.4.1 Political and Legal ChangesSince 1949, policies and regulations regarding rural-to-urban migration have changed92 Renshan Zhang, Sovereignty, Rights, and Society of Modern China (Jindai Zhongguo de zhuquan,faquan,he shehui) (Beijing: Law Publication, 2014).93 Yeo-Chi King, “Construction of China’s Modern Civilization, on China’s Modernization andModernity,” in Economic Democracy and Economic Liberty, ed. Junning Liu (Shanghai Sanlian BookstorePress, 1998), 42.94 Liren Shen, Chinese Migrant Workers (Zhongguo Nongmingong) (Beijing: China Democracy andConstruction Press, 2005); Arianne M. Gaetano and Tamara Jacka (eds.), On the Move: Women andRural-to-Uban Migration in Contemporary China (New York: Columbia University Press, 2004); AnitaChan, China’s Workers under Assault: the Exploitation of Labour in a Globalizing Economy (Armonk,N.Y.: M.E. Sharpe, 2001).59significantly, adapting to the social and economic transitions in Chinese society.Generally, it evolved from “restriction,” to “control and administer,” and then to“facilitate and service.”95 From 1958 to the late-1970s, the household registration systemeffectively chained Chinese farmers to the land.96 The adoption of the household contractresponsibility system since 1978 has freed tens of millions of farmers from their land.Increasingly, peasants have travelled to urban areas looking for extra income, despiterestrictions of the household registration system.97 Since the 1980s, the centralgovernment has undertaken a series of reforms to the household registration system,making it easier for the migrants to reside in urban areas, and more effective to track andgovern this population.98 In 1983, peasants were allowed to work in urban areas whileretaining their rural household registration.99 In 1985, migrant workers were able toregister for temporary residence permits in most cities.100 In the past decade, some localauthorities have also undertaken reforms of the household registration system. Forinstance, Chongqing City launched a large-scale household registration reform in October2010, and planned to shift 10 million migrant workers’ household registration from the95 Max Tunon, “Internal Migration in China: Features and Responses,” ILO Asia and the Pacific 8 (2006),accessed October 10 2016,www.ilo.org/public/english/region/asro/beijing/download/training/lab_migra.pdf.96 Cindy C. Fan, “Migration, Household Registration, and the City,” In China Urbanizes: Consequences,Strategies, and Policies, ed. Shahid Yusuf and Tony Saich (Washington DC, The World Bank, 2008), 76.97 Jie Shen, Labour Disputes and Their Resolution in China (Oxford: Chandos, 2007); Liren Shen, supra n.94.98 Gaetano and Jacka, supra n. 94.99 Ling Li, “Towards a More Civil Society: Mingong and Expanding Social Space in Reform-era China,”Columbia Human Rights Law Review 149.156 (2001).100 Fan, supra n. 96.60rural to urban category within 10 years. By July 30, 2011, roughly 2.2 million migrantshave attained their non-agriculture household registration.101By and large, the attitude of host governments toward migrant workers has been negative,or even hostile; home governments’ attitude is encouraging, while the central governmenthas remained ambivalent. Home governments consider internal migration as an effectiveway to move extra rural labourers into non-agricultural sectors, relieving surpluslabourers and reducing unemployment. The central government’s ambivalence is largelybased on the conflict between the increasing need for labourers in urban areas and thelimited facilities in big cities.102 Prior to 2003, host governments’ attitude toward migrantworkers tended to be: “can’t live without migrant workers, but don’t want to live withthem.”103 The growing urban economy requires migrant workers to perform low-end,heavy-labour, and dangerous jobs, and to develop service sectors.104 Migrant workers aregenerally treated as second-class citizens by urban citizens and local authorities.105Zhang and Luo propose that the household registration system contributes to inequality in101 China News, “2.2 Million Migrants Got Urban Household Registration in the First Year of Rural-urbanHousehold Registration Integration Reform in Chongqing,” July 30th, 2011. Accessed August 10, 2016,http://news.sina.com.cn/c/2011-07-30/212422906093.shtml.102 Xin Frank He, “Regulating Rural-urban Migrants in Beijing: Institutional Conflict and IneffectiveCampaigns,” Stanford Journal International Law 39.2 (2003): 177.103 Gary Silverman, “Vital and Vulnerable,” Far Eastern Economic Review 23 (1996): 60.104 He, supra n. 102.105 United Nations, “The National Human Development Report for China,” (2005), accessed September 152016,http://www.undp.org.cn/modules/php?op=modloadandname=Newsandfile=articleandtopic=40andsid=228.61social status, and links the household registration with different rights and interests.106In recent years, there has been increasing political and legal changes to restore migrantworkers’ rights. In 2007, for instance, the government introduced three important labourlaws: the Labour Contract Law, the Labour Dispute Mediation and Arbitration Law, aswell as the Promoting Labour Employment Law. On July 24 2014, the State Councilissued the “Opinions on further promoting the reform of the household registrationsystem.” 107 The Opinions state that China is going to formally unify the urban and ruralhousehold registration systems. The goal of reform, by 2020, is to have roughly 100million agricultural residents settle down in towns and cities, and to establish effectivesystems of social administration and public services.1082.4.2 WatershedThe surge rural-to-urban migration in China has attracted a great deal of attention fromWestern and Chinese scholars. During the 1990s and early- 2000s, a great deal of Chineseliterature focused on the demographic features of the internal migration, the economicand political influences, and the administration of migrants in cities.109 For instance, Li et106 Shuya Zhang and Guoliang Luo, “China’s Migrant Workers: How Far from Being Citizens?” AsianSocial Science 9.1 (2013).107 State Council, “Opinions on Further Promoting the Reform of the Household Registration System,”accessed September 27, 2016, http://www.gov.cn/zhengce/content/2014-07/30/content_8944.htm.108 Ibid.109 Mengbai Li and Xin Hu, Influence of Floating Population on Urban Development and Some62al. compare the “floating populations” in Beijing and Shanghai, with that in Guangzhou,arguing that the population in Guangzhou increases faster, the average stay period inGuangzhou is shorter, and the proportion of females is higher. The authors argue thatadministration on the floating population in Guangzhou should be more stringent than inother big cities. They believe that the Guangzhou government should upgrade theindustrial structure in order to reduce the amount of migrants with “low quality” (disuzhi). They also advocate for the position that local government needs to improveadministration on leasing houses and temporary living permit system.110 Some literatureattempts to investigate the relationship between migrants and urban crime, and blamesmigrants as main causes of the increasing crime rates in cities.111In many ways, 2003 was a watershed year for Chinese rural-to-urban migration studies.Major Chinese scholars and the media changed their attitude regarding migrant workers.Li suggests that Sun Zhigang affair112 was a main source,113 while many believe that theCountermeasures (Liudong renkou dui dachengshi fazhan de yingxiang ji duice) (Beijing: Jingji DailyPublisher, 1991).110 Ling Li, Ouyang Hui, Yaosen Chen, and Wensheng Lin, “Administration on Floating Population in BigCities, Case Study in Guangzhou Comparing with Beijing and Shanghai (Dachengshi liudong renkou tedianji guanli, yi guangzhou weili jianyu Beijing Shanghai de bijiao),” Population Studies 2.46 (2001).111 Guoan Ma, Floating Population and Crime in China (Zhongguo de liudong renkou yu fanzui). Beijing:China Legal Publishing, 2001.112 On March 20th, 2003, 27-year-old man, Sun Zhigang, died in a detention center in Guangzhou. Sun lefthis hometown, Huanggang City, Hubei Province, and went to work in Guangzhou as a designer fromFebruary 2003. On March 17th 2002, he was stopped by a policeman in the street, and was asked to showhis Temporary Living Permit, and ID card. Sun had not applied for the permit, and did not have an ID cardwith him at that time. He was sent to a detention center by the police, and died there three days laterbecause of savage beating.Sun’ death aroused significant attention from the public and mass media in China. Two groups of63Event of Sun Zhigang was only a catalyst. In 2001, the central government launched theRural Tax Free Reform, which increased peasants’ income. As a result, the Pearl RiverDelta region started to experience noticeable labour shortage, which continued, andspread to other areas.All these social and economic changes in China from the beginning of 2000s, includingthe national labour shortage, increasingly fierce labour protests, higher income in ruralareas, different international competing strategies of the state, etc., all together made theregime to update the related policies and regulations. Policies gradually shifted from“controlling and administration” to “facilitating.”114 For instance, in October 2003,Chinese Premier Wen Jiabao helped a construction migrant worker from Chongqing torecover his defaulted wages of 2,240 yuan.115 This event sent a clear sign to authorities atall levels to pay more attention to resolve labour disputes of migrant workers.116 From2003, local governments launched a “chasing after wage-arrears campaigns” by the endsenior legal scholars appealed to the National People’s Congress, questioning the legitimacy of the Custodyand Repatriation (C&R) Regulation. They argued that the C&R Regulation was unconstitutional. On June20 2003, Premier Wen Jiabao announced that C&R regulations were abolished. On this, see: Fang Kecheng,“Sun Zhigang, Abolish One Regulation because of One Man,” South Weekend, December 31st, 2010,accessed November 12, 2016, http://www.infzm.com/content/54102.113 Guozhen Li, “Summary on Migrant Workers Research in the Past Decades, Case Study of 491 Articles(Jishinianlai nongmingong wenti yanjiu zongshu, yi zhongguo quanwen qikan wang shang 491pianwenzhang weili,” Social Science Forum 80 (2008): 68.114 Tunon, supra n. 95.115 Verna Yu, “Pay Day at Last after Premier Aids a Peasant; Wen Jiabao is quick to end impoverishedworker’s plight,” South China Morning Post, October 29 2003, 6.116 Some Opinions on Solving Problems of Migrant Workers, http://www.gov.cn/jrzg/2006-03/27/content_237644.htm.64of every lunar year.117 Around the same time, the mass media also changed its attitudetowards migrants. For example, on February 8th 2005, Xinhua Daily used the term“Kegong (guest workers)” instead of “Nongmin Gong (migrant workers)”; on March 16th2005, Urban Express (Dushi Kuaibao) advocated to replace the term “Nongmin Gong(migrant workers)” by “Xin Rongren (new workers).”118 In April 2012, the HumanResources and Social Security Department of Guangdong Provincial first brought the title“personnel working in different regions,”119 replacing the old title of “migrant workers.”Xinhua Net highlights that this change in titles reflect local governments’ new respect formigrant workers.120 At the same time, Chinese literature has increasingly explored issuesof migrants’ social security, child education, rights protection, and industrial injuryinsurance, among other topics.1212.4.3 Rights Violations and DiscriminationsA dramatic development of labour law in China has been witnessed over the past twodecades. The framework of individual employment protection rights established mainly117 Anita Chan. “A ‘Race to the Bottom’: Globalization and China’s Labour Standards.” ChinaPerspectives 52(2003): 2.118 Shen, supra n. 94.119 异地务工人员.120 Huajiang Du, “Changing the Title of Migrant Workers is a Progress (Gaibian Nongmingong ChengweiYeshi Yizhong Jinbu),” accessed July 24, 2016,http://news.xinhuanet.com/comments/2012-04/15/c_111780798.htm.121 Zhen Li (ed.), Victims at Work: Selected Works on Occupational Safety and Health Right of MigrantWorkers (Gongshangzhe: nongmingong zhiye anquan yu jiankang quanyi lunji), (Beijing: Social SciencePublisher, 2005).65by the Labour Law of 1994, the Labour Contract Law of 2007, the the Labour DisputeMediation and Arbitration Law, and the Promoting Labour Employment Law. Theseregulations have provided a basic “floor of rights” for Chinese workers.122 However,much literature argues that the Chinese workers’ labour rights have not been wellprotected, especially before the new labour regulations’ enforcement, and especially thosemigrant workers. For instance, Shen highlights that migrant workers are particularlyvulnerable to abuse,123 and are the main victims of serious labour-rights violations.124 Infact, most literature in this field focuses on rights violations and discrimination, includingunderpayment and wage default, forced labour, long working hours, punishment andphysical assaults from the management, violations on industrial security and health. 125For instance, as Chan points out, the minimum wage standard in China is so low that it iscompetitive with Vietnam and Cambodia, though the cost of living is much lower in thosecountries. What is worse, the minimum wage has simply become the maximum amountthat employers are willing to pay workers in the labour-intensive industries.126 Even so,wage defaults are still common, especially in 1990s and early of 2000s. According to asurvey undertaken by ACFTU, by November 2004, the wage default of migrant workers122 Alan C. Neal. “Implementing ILO Fundamental Labour Rights in China: A Sensitive Meeting of Formand Substance?” in Ulla, Liukkunen, and Chen, Yifeng. Fundamental Labour Rights in China - LegalImplementation and Cultural Logic. Volume 49, New York: Springer, 2016.123 Ibid; Jie Shen, supra n. 97: 25.124 Anita Chan, “Strikes in China’s Export Industries in Comparative Perspective.” China Journal, 65,(2011): 27; Anita Chan, China’s Workers under Assault: the Exploitation of Labour in a GlobalizingEconomy (Armonk, N.Y.: M.E. Sharpe, 2001), 7.125 Ibid.126 Chan, supra n. 12466reached 100 billion yuan, and payment delay time ranged from one month to eightyears.127 A newspaper article describes the wage default as a “custom” in Guangdong,128while another describes it as an “incurable disease.”129Ever since the beginning of 2000s, especially after 2008 when the three major labourregulations were enforced, the central and local governments in China have undertakenmany efforts to ensure the workers’ rights, and the migrant workers have been betterprotected gradually. However, long working hours, wage arrears, and lack socialinsurances are still quite common among migrant workers in China. For instance, in 2013,the government estimated that only 28.5% of 166 million rural migrant workers werecovered by work-injury insurance, 17.6% by medical insurance, 15.7% by old agepensions, 9.1% by unemployment benefits, and 6.6% by maternity insurance. 130According to the National Statistics, the proportion of wage default among migrantworkers was 1%, and the proportion in the construction industry was 2%, higher than thatof other migrant workers. The average wages arrear was 9788 yuan per person. 131Much English literature regarding internal migrant workers in China explores thediscrimination, inequality, and rights violations that migrants have suffered in urban areas,127 China Labour Bulletin, China’s Catch 22: When It Costs More to Claim Wage Arrears than the WageArrears Are Worth, October 5, 2005, http://www.clb.org.hk/en/node/17585. Accessed May 18, 2015.128 Workers Daily, May 9th, 2001129 China Labour Security Paper, February 19th, 2002.130 National Bureau of Statistics. Investigative Report on the Monitoring of Chinese Migrant Workers in2013. http://www.stats.gov.cn/tjsj/zxfb/201405/ t20140512_551585.html. Accessed on June 9, 2017.131 National Bureau of Statistics, Investigative Report on the Monitoring of Chinese Migrant Workers in2015, http://www.stats.gov.cn/tjsj/zxfb/201604/t20160428_1349713.html. Accessed on June 9, 2017.67in the context of globalization and market economic reform. For instance, Chaninvestigates the main forms of violations and assaults that Chinese migrant workers havesuffered at the hands of foreign invested, or joint-venture companies in South China.132Chan and Wang demonstrate the different behaviors of Taiwanese managers in thefootwear industry in China and Vietnam, and assert that the labour rights and standards inChina are much worse than those in Vietnam. They believe that the different attitude oflocal governments is the main reason for this difference, and that the governments’different attitudes also result in trades unions having different capabilities in these twocountries.133 Zhang and Luo contend that migrant workers cannot enjoy correspondingbenefits as citizens, such as employment, housing, pension, medical treatment andeducation. They note that there is still a long journey to go to turn from “migrantworkers” to real “workers,” and gradually unify the identification of migrant workers andurban residents, and enable internal migrants to have equal rights with urban citizens.134Lin explores migrant workers’ endangered pension entitlement in China, and argues thatthe decentralized pension structure in China has restricted the movability of the urbanpension program. The interests of host cities have become a major difficulty to reformsthat pursued to resolve the pension portability issue, which has led to welfare inequality132 Anita Chan, supra n. 124.133 Ibid; Anita Chan and Hongzen Wang, “The Impact of the State on Workers’ Conditions: ComparingTaiwanese Factories in China and Vietnam.” Pacific Affairs, 77 (4) 2004: 629-46134 Shuya Zhang and Guoliang Luo, “China’s Migrant Workers: How Far from Being Citizens?” AsianSocial Science 9.1 (2013).68in different areas in China.1352.4.4 Migration ExperiencesThere is a growing body of literature that pays attention to the migration experiences ofindividual migrant workers, especially female migrant workers. These studies attempt toexplore the impacts of migration on individual’s identities, values, opinions, and attitudes,as well as their social relations, especially gender relations, and the discourse that informthem.136 For example, Ngai explains that the lives of Chinese dagongmei (young femalemigrant workers) have to be understood in the context of rapid changes in China over thepast decades. She argues that the hybrid marriage of state power and global capital hascreated new forms of control on both social and individual level. She argues that youngmigrant workers, especially migrant women, are subsumed by the expropriation of globalcapitalism and the state socialist system, which is always in favor of urban and industrialdevelopment.137 Gaetano demonstrates the agencies, experiences, and subjectivities ofyoung rural women working in domestic service in Beijing. She argues that thesewomen’s motivations and expectations for migration must be understood in the context of135 Jing Lin, “Labour Mobility without Pension Portability: Migrant Workers’ Endangered PensionEntitlement in China,” Asian Social Work and Policy Review 9 (Richmond: Wiley Subscription Services,Inc., 2015).136 Gaetano and Jacka, supra n.94; Tamara Jacka, Rural Women in Urban China Gender, Migration, andSocial Change (Armonk, N.Y.: M.E. Sharpe, Inc., c2005); Leslie T. Chang, Factory Girls: from Village toCity in a Changing China (New York: Spiegel and Grau, 2009); Yan Hairong, New Masters, New ServantsMigration, Development, and Women Workers in China (Durham : Duke University Press, 2008).137 Pun Ngai, Made in China: Women Factory Workers in a Global Workplace (Durham: Duke UniversityPress, 2005).69complex discourses relating to the identity and role of the “modern urban women” and“filial rural daughter,” simultaneously. Migrant women’s agency lies in their ability tobalance the contradictions between these discourses.138 Lin and Short explore migrantwomen’s aspirations for the future, based on a survey conducted in Zhangjiagang City.They argue that migrant women marry differently both from rural women who havenever migrated, as well as urban women. Moreover, once married, migrant women’sexperiences are different from local women, as they are outsiders in the community.139Bai and Song explore the main reasons that migrants decide to huiliu (return tohometown), and their experiences after huiliu. They argue that, despite many successfulcases reported by the mass media, returned migrants tend to run their own businesssuccessfully in their hometowns; that said, most return migrants have lower income andless job opportunities than in cities. It is not easy to start their own business, because ofthe economic and policy limitations in the less developed regions, as well as the migrants’own capabilities.1402.4.5 Labour Mobility and Spatial MobilityMuch literature pays attention to labour mobility in China. Many studies explore the138 Arianne M. Gaetano, “Filial Daughters, Modern Women: Migrant Domestic Workers in the Post-MaoBeijing,” in Arianne M. Gaetano and Tamara Jacka, supra n.98.139 Lin Tan and Susan Short, “Living as Double Outsiders: Migrant Women’s Experiences of Marriage ina Country-level City,” in Arianne M. Gaetano and Tamara Jacka, supra n.95.140 Nansheng Bai and Hongyuan Song, Return, or Stay in City? Research on Chinese Migrant Workers’Returning to rural areas (Huixiang, haishi jincheng? Zhongguo nongcun waichu laodongli huiliu yanjiu)(Beijing: China Finance Economic Press, 2002).70composition and demographic features of migrant workers, the main push and pull factorsthat impact their migration decisions, how the social network works in the migrationprocess, as well as causes for returning to rural areas.141 For instance, Rozelle et al.investigate the income level of those who decide to migrate. They indicate that the typicalmigrant is young, poor, has little land, and from an inland province; however, the poorestrural residents in the most remote areas are unable to migrate, as it requires access toinformation, transportation, and communication, which is less available in the poorestareas.142 Tian and Xu explore the job mobility of migrant workers based on a survey ofmigrant workers in six cities in eastern China. They demonstrate a high degree of jobmobility among migrant workers who use a “trial and error” method to search for betterjobs. They underscore that the job mobility of migrant workers reflects these people’saspirations to find better incomes and working conditions.143 Huang explores the impactof inner-industrial job mobility on income increase of migrant workers. She illustratesthat low human capital, low employment grades and low income are the most importantreasons for migrant workers to change jobs. Young and single migrant workers withlower educational attainment tend to switch jobs within the industry; while, those who141 Michael C. Seeborg, Zhenhu Jin, and Yiping Zhu, “The New Rural-urban Labour Mobility in China:Causes and Implications,” Journal of Socio-Economics 29.1 (2000): 39; Yaohui Zhao, “Leaving theCountryside: Rural-to-urban Migration Decisions in China,” The American Economic Review 89.2 (1999):281.142 Scott Rozelle, Li Guo, Minggao Shen, Amelia Hughart and John Giles, “Leaving China’s Farms:Survey Results of New Paths and Remaining Hurdles to Rural Migration,” The China Quarterly 158 (1999):367.143 Ming Tian and Lei Xu, “Investigating the Job Mobility of Migrant Workers in China,” Asian andPacific Migration Journal 7 (2015).71have high income and better educational attainment tend to change jobs among differentindustries. Huang concludes that inner-industrial job switches have an importantoptimistic influence on income growth of low-income migrant workers, and an importantnegative influence on high-income migrant workers.144Liu examines the “urban villages” in Beijing based on primary data collected fromsurveys. “Urban village” is a special phenomenon of contemporary China’s process ofurbanization, where local rural peasants built an “informal” habitat and mainly rent tomigrant workers. Destroying or conserving such habitats has become an issue of good orbad governance related to migrants’ rights and social justice. Liu highlights the point thatthe existence of an “urban village” presents an “urbanization of injustice,” and shows the“growth coalition” between the State, property investors, and local committee.1452.4.6 Physical and Physiological HealthPhysical and physiological health of migrants is another contested issue in both theEnglish and Chinese literature. For instance, some studies explore the HIV/AIDSinfection among migrant workers in China.146 Some researchers investigate mental health144 Qian Huang, “The Impact of Job Mobility on Earnings Growth of Migrant Workers in UrbanChina,” Frontiers of Economics in China 6 (Brill, Netherlands, 2011).145 Ran Liu, Spatial Mobility of Migrant Workers in Beijing, China (DE: Springer International Publishing,2015).146 Tingzhong Yang, Wei Wang, Abu Saleh Abdullah, Jennifer Beard, Chengjian Cao and Mowei Shen,“HIV/AIDS-related Sexual Risk Behaviors in Male Rural-to-urban Migrants in China,” Social Behavior72of migrant workers, and the impacts of migration on mental health.147 Female migrantworkers’ reproductive health also has attracted much attention.148 Other scholars haveexplored occupation injuries suffered by migrant workers, including occupational injuryinsurance and compensation.149 For instance, Fitzgerald et al. discuss the literaturerelated to the occupational injury surveillance and prevention among migrant workers inChina. They note that there is little systematic surveillance of occupational injury, andfew evaluated interventions, despite the fact that migrant workers account for asignificant proportion of occupational injury morbidity and mortality in China. Fitzgeraldet al. advocate for surveillance and interventions in high-risk occupations, such asconstruction, manufacturing, and small mining operations; more occupational safetyand Personality: An International Journal 37.3 (April, 2009): 419; T. Hesketh, L Li, X Ye, H Wang, MJiang, and A Tomkins, “HIV and Syphilis in Migrant Workers in Eastern China,” Sexually TransmittedInfections 82 (2006):11.147 Jiang Shan, Zhang Lu, and Weihong Wang, “The Mental Health of Migrant Workers in ChongqingCity,” Psychological Science (2007), 1; Lu Li, Hongmei Wang, Xuejun Ye, Minmin Jiang, Qinyuan Lou,and Therese Hesketh, “The Mental Health Status of Chinese Rural–urban Migrant Workers, Comparisonwith Permanent Urban and Rural Dwellers,” Social Psychiatry and Psychiatric Epidemiology 42(2007): 9.148 Wang Feng, Ping Ren, Zhan Shaokang, and Shen Anan, “Reproductive Health Status, Knowledge, andAccess to Health Care Among Female Migrant in Shanghai, China,” Journal of Biosocial Science 37(2005), 603; Zhenzhen Zheng, Yun Zhou, Lixin Zheng, Yuan Yang, Dongxia Zhao, Chaohua Lou andShuangling Zhao, “Sexual Behavior and Contraceptive use among Unmarried, Young Women MigrantWorkers in Five Cities in China,” Reproductive Health Matters 9.17 (2001): 118.149 Tak-sun Ignatius Yu, Yi Min Liu, Jiongliang Zhou, and Tze-wai Wong, “Occupational Injuries inShunde City – a County Undergoing Rapid Economic Change in Southern China,” Accident Analysis andPrevention 31.4 (1999): 313; Ingrid Nielsen, Chris Nyland,Russell Smyth, Mingqiong Zhang, and CherrieJiuhua Zhu, “Which Rural Migrants Receive Social Insurance in Chinese Cities? Evidence from JiangsuSurvey Data,” Global Social Policy 5.3 (2005): 353; Jinliang Zhu, Zhaolin Xia, David C. Christiani, Gary S.Sorock, Tingting Ye, Theodore K. Courtney, Taokou Zhu, Qingmin Wu, and Hua Fu, “Fatal OccupationalEvents in a Development Area in East China: 1991 to 1997,” Occupational Health/Safety in the World 42.5(2000): 267.73training should also be provided.1502.4.7 Labour Disputes and ProtestsMuch literature investigates labour disputes and labour protests of migrant workers, andargues that the formal legal system has not provided effective protections for migrantworkers, especially before 2008. Shen explores that Chinese workers have become morevulnerable and marginalized since the economic reform. There has been a sharp increasein labour disputes in China over the past decades, while workers lack independent powerto protect their own rights, because of the incapability of the Chinese trade unions and the“window dressing” collective contract system.151 Halegua investigates the “subclass” ofmigrant workers, who lack education, money, and knowledge of the law, are “easy toexploit,” and are often denied basic rights. In sum, scholars largely agree that China’slegal system has failed migrant workers. The formal legal process of labour disputesremains inefficient and ineffective for migrant workers, while informal mediation is farmore accessible, efficient, and practical.152 Some literature explores that there have beenmarked increase in labour disputes and protests in China in recent years, and the increasecoincides with the end of the era of surplus labour. Some literature highlights that that150 Simon Fitzgerald, Xin Chen and Hui Qu, “Occupational Injury among Migrant Workers in China: ASystematic Review,” Injury Prevention: Journal of the International Society for Child and AdolescentInjury Prevention 19(5) (2013), 348.151 Shen, supra n. 97.152 Halegua, supra n. 1; Yun Zhao, supra n. 1.74disputes result from a better rights awareness of the workers.153Lee makes a valuable comparison between labour protests of the state-owned enterprises(SOEs) laid-off workers in North China and labour protests of migrant workers in SouthChina. Lee describes the former as a protest of desperation, and the latter a as a protest ofdiscrimination. Both protests share some similar features, including targeting localofficials, cellular activism, fragmentation of interests, and legalistic rhetoric.154 Leungand Pun explore labour protests and resistance based on a case study in the gemstoneindustry in Huizhou. They reveal that these protests are undergoing a process of“radicalization,” whereby migrant workers frequently take collective and progressiveactions, including factory-level and industrial level strikes, work stoppages, collectivebargaining, joint complaints and appeals, and resorting to media exposure. Leung andPun contend that the migrant workers in factories are not as helpless, docile, atomizedvictims as they are often described; on the contrary, they never stop struggling.155Some literature explores the impact of China’s Labour Contract Law on labour disputes.For instance, Lee and Zhang highlight that an important purpose of the Labour ContractLaw is to resolve labour protest on an individual basis, before they transform into153 OECD Library. Labour Market Changes, Labour Disputes and Social Cohesion in China. 2012.154 Ching Kwan Lee, Against the Law: Labour Protests in China’s Rustbelt and Sunbelt (University ofCalifornia Press, 2007).155 Leung Pak Nang and Pun Ngai, “The Radicalization of the New Chinese Working Class: a Case Studyof Collective Action in the Gemstone Industry,” Third World Quarterly 30.3 (2009): 551.75collective and confrontational forms,156 because the CPC is strongly opposed tocollective actions.157 Remington and Cui also explain that the Labour Contract Law andthe Labour Dispute Mediation and Arbitration Law aim to improve employmentconditions by enforcing the legal rights of individual workers, vis-a-vis employers.However, the Party authorities did not grant political autonomy to the collectiveinstruments for workers, such as trade unions.158 Brown raises the objection that there isa lack of direction given to mediation committees at grass-root levels, and there alsoexists a lack of legal awareness among workers. He advocates that further education andtraining is necessary both for mediators and workers.159Chan explores migrant workers’ means of resolving labour disputes. She portrays howworkers usually try to reason with managers first; when stone-walled, they sendrepresentatives to local government authorities to seek help. Only when they are stillignored do they take to the streets, blocking highways, forcing the authorities to payattention. Chan contends that compared to workers in other Asian countries, such asIndonesia, Cambodia and Bangladesh, Chinese workers have been relatively compliant.They have not demanded many basic legal rights for themselves, but rather only156 Ching Kwan Lee and Yonghong Zhang, “The Power of Instability: The Microfoundations of BargainedAuthoritarianism in China,” American Journal of Sociology 118.6 (2013): 1475.157 Gary King, Jennifer Pan and Margaret E. Roberts, “How Censorship in China Allows GovernmentCriticism but Silences Collective Expression,” American Political Science Review 107(2) (2013), 326.158 Thomas F. Remington and Xiaowen Cui, “The Impact of the 2008 Labour Contract Law on LabourDisputes in China,” Journal of East Asian Studies 15 (2015).159 Ronald C. Brown, “Defusion of Labour Disputes in China: Collective Negotiations, Mediation,Arbitration, and the Courts,” China-EU Law Journal 3 (2014).76demanding defaulted wages.160 Chan demonstrates a new type of demand – protests overunpaid or underpaid social insurance, and housing fund contributions by employers. Shedescribes how more than 40,000 workers went on strike at a large shoe factory inGuangdong Province, because workers discovered that the company had not beencontributing enough toward their retirement. A year later, 5,000 workers at another shoefactory went on strike, demanding a housing fund mandated by law. Chan explores thatworkers had not paid much attention to these two funds for many years; however, as theyaged, they became increasingly concerned with being short-changed. 161Some literature explores the formal legal system of labour disputes resolution in China.For instance, Hwang challenges that the formal legal system has not provided effectiveprotections on labour rights, from the perspective of arbitrators in China. He explores thatthe current legal system endeavors to promote the regime’s capacity to rule over labourrelations, rather than establish an impartial platform. The recent reform excludedarbitrational independence, and the arbitrators have to put the political and economicinterests over safeguarding labour rights. 162 Some study explores that the “mediation”component in the labour dispute resolution system, and examines that mediation isdesigned to operate at the enterprise level, and aims to prevent disputes taking on an160 Anita Chan, “China’s Migrant Workers’ Legal Rights Awareness on the Rise,” International Centre forTrade Union Rights 22 (2015).161 Ibid.162 Hwang, Kyung-Jin, and Kan Wang. Labour Dispute Arbitration in China: Perspectives of theArbitrators. Employee Relations 37 (5): 2015: 582.77increasingly rigid formalistic character, eventually becoming subject to interventionoutside the enterprise.1632.4.8 Left-behind Children and Aging MigrantsSome literature explores the situation of migrant workers’ children who are left behind inrural hometowns. For instance, Yuan and Wang explore that there are roughly 61 millionchildren left behind by migrant parents in China from 2010 to 2014. It is nearly 22percent of children in China. This side effect of urban development is seriouslyinfluencing the psychological and physical health of left-behind children. Yuan andWang note the vital need for policy reform and practical strategies to solve this problem,including effective family interferences, community support, and schoolingimprovements.164 Using data from the China Health and Nutrition Survey (CHNS), Li etal. explore that left-behind children are 20 percent likely to get sick or have chronicdisorders than those children living with their parents. Girls are more vulnerable thanboys, and younger children are more vulnerable than older ones.165 Based on literaturereview of 53 items between 2001 and 2008, Qin and Albin also underscore thatseparating with their parents may influence the psychological health of left-behind163 Alan C. Neal. “Implementing ILO Fundamental Labour Rights in China: A Sensitive Meeting of Formand Substance?” in Ulla, Liukkunen, and Chen, Yifeng. Fundamental Labour Rights in China - LegalImplementation and Cultural Logic. Volume 49, New York: Springer, 2016.164 Yuan Peng and Wang Long, “Migrant Workers: China Boom Leaves Children Behind,” Nature 529(England, 2016).165 Qiang Li, Gordon Liu and Wenbin Zang, “The Health of Left-behind Children in Rural China,” ChinaEconomic Review 5 (2015).78children in a quite negative way, especially their emotions and social behavior.166Some literature draws focus to aging migrant workers. For instance, Liu applies theconcept of care circulation167 to the care of aged people in rural China. He examines themultidirectional and asymmetrical exchanges of caregiving and care-receiving uponageing and familial care in rural China. He explores the mediating factors that influencethe ways in which grown-up children take care of their parents and grand-parents. Themajor intervening factors include employment status, status of migration, familylife-cycle of adult children, and family relations. These causes also contribute to thequality of care provided.1682.5 SummaryIn short, there remains little literature that explores the popular legal culture of migrantworkers in China. There also have not been enough studies that have paid attention tomigrant workers in the construction industry, especially considering the size andimportance of this group.169 As an important social group with large population and166 Jiang Qin and Albin Björn, “The Mental Health of Children Left Behind in Rural China by MigratingParents: a Literature Review,” Journal of Public Mental Health 9.3 (2010).167 This concept was brought out in Loretta Baldassar and Laura Merla, Transnational Families, Migrationand the Circulation of Care: Understanding Mobility and Absence in Family Life (New York: Routledge,2014).168 Jieyu Liu, “Ageing in Rural China: Migration and Care Circulation,” The Journal of Chinese Sociology3 (Springer Berlin Heidelberg, Berlin/Heidelberg, 2016).169 Pun Ngai and Huilin Lu, “Neoliberalism, Urbanism, and the Plight of Construction Workers in China,”79increasing social influence, migrant construction workers’ legal culture can help us tobetter understand the popular legal culture of Chinese people of contemporary China, andthe interplay between Western norms and local values in the rapidly-changing society inChina.World Review of Political Economy 1.1 (2010): 127.80Chapter 3 Labour Contract3.1 IntroductionOn January 1, 2008, the Labour Contract Law1 was enacted in China, together with othertwo important laws – the Labour Dispute Mediation and Arbitration Law,2 and thePromoting Labour Employment Law.3 The new laws represent some of the mostsignificant pieces of labour legislation in People’s Republic of China.4 They reflect theChinese government’s recognition of the rising aspirations and expectations of China’sworkers, and the political significance of ensuring fair employment practices to avoidlabour unrest.5 They denote a milestone effort by the government to shift the balance ofpower in employment rights, away from employers and toward employees.6 The new lawalso went well beyond its predecessor in protecting workers’ rights, and enhancing theirability to seek adjudication of labour disputes.71 Labour Contract Law, http://www.npc.gov.cn/wxzl/gongbao/2013-04/15/content_1811058.htm.2 Labour Dispute Mediation and Arbitration Law, http://www.gov.cn/flfg/2007-12/29/content_847310.htm.3 Promoting Labour Employment Law, http://www.gov.cn/flfg/2007-08/31/content_732597.htm.4 Jeffrey Becker and Manfred Elfstrom, “The Impact of China’s Labour Contract Law on Workers,”International Labour Rights Forum (May 12, 2010).5 Mary Gallagher, John Giles, Albert Park, and Meiyan Wang, “China’s 2008 Labour Contract Law:Implementation and Implications for China’s Workers,” Policy Research Working Paper 6542, The WorldBank Development Research Group Human Development and Public Services Team (July 2013).6 Becker and Elfstrom, supra n. 4; Sean Cooney, Sarah Biddulph, Li Kungang, and Ying Zhu, “China’sNew Labour Contract Law: Responding to the Growing Complexity of Labour Relations in the PRC,”UNSW Law Journals 30.3 (2007): 786.7 Thomas F. Remington and Xiaowen Cui, “The Impact of the 2008 Labour Contract Law on LabourDisputes in China,” Journal of East Asian Studies 15 (2015): 271; Becker and Elfstrom, supra n. 4.813.2 Background3.2.1 Heated Debate before EnforcementThe National People's Congress suggested Labour Contract Law in 2005; it ratified it in2007, and subsequently forced it on the nation at the beginning of 2008. Five months later,a complementary edict, the Labour Disputes Mediation and Arbitration Law, was adoptedas well.8 The adoption of new labour regulations reflects the CPC government’s aim todiminish social anxiety that developed as a result of China’s economy becoming moreliberal.9 Before the Labour Contract Law passed, entrepreneurs and many observerspresented concerns that the law would raise labour costs, decrease employment, andundermine international competitiveness.10 For instance, Zhang Yin, the Chief ExecutiveOfficer of Nine Dragons Paper who also took part in the Chinese People’s PoliticalConsultative Conference, criticized this regulation that favoured open-ended contracts foremployees.11 The American Chamber of Commerce was apprehensive that theseregulations would be administered more severely upon foreign-owned firms than on8 Virginia E. Harper Ho, “From Contracts to Compliance? An Early Look at Implementation under China’sNew Labour Legislation,” Columbia Journal of Asian Law 23(1) (2009): 36.9 Remington and Cui, supra n. 7; Ching Kwan Lee and Yonghong Zhang, “The Power of Instability: TheMicrofoundations of Bargained Authoritarianism in China,” American Journal of Sociology 118(6) (2013):1475.10 Mary Gallagher and Baohua Dong, “Legislating Harmony: Labour Law Reform in ContemporaryChina,” in From Iron-Rice Bowl to Informalization: Markets, Workers and the State in a Changing Chinaeds. Sarosh Kuruvilla, Ching Kwan Lee, and Mary Gallagher (New York: Cornell University Press, 2011).11 Zhang Yin, “The CPPC Members Propose to Abolish the Non-Fixed Term Labour Contract,” March 2nd2008, accessed May 2, 2015, http://news.sina.com.cn/c/2008-03-02/033515055748.shtml.82Chinese companies;12 as a result, they lobbied to abolish the law.13 They warned thatenacting the law might convince companies to turn to countries with less stringent laws.14Academics held various opinions on the proposed legislation. Chang argued that itthreatened the strong economy and increase unemployment.15 Some scholars argue thatrestricting organizations’ ability to dismiss employees may prevent human resources frombeing used optimally, and that the regulation may increase the costs of operation whiledecreasing employees coming from abroad.16 Chen and Funke argued that the LabourContract Law would affect employment only slightly, but that it would diminishemployment inadvertently by increasing unit labour costs.17 The new labour regulationshave also received significant attention from public and mass media. In 2006, the NPCreceived 190,000 public comments in a month-long consultation.18After the Labour Contract Law was passed in 2007, employers used different methods to12 Richard B. Freeman and Xiaoying Li, “How Does China’s New Labour Contract Law Affect FloatingWorkers?” National Bureau of Economic Research Working Paper Series (19253) (2013); Gallagher et al.supra n. 5.13 SINA, “Foreign Firms are Against New Labour Contract Law Draft, and Threats to WithdrawInvestment in China (2006),” accessed May 2, 2015, http://finance.sina.com.cn/g/20060511/10112558951.shtml.14 Brendan Smith, Jeremy Brecher, and Tim Costello, An Emerging Chinese Labour Movement (New York:Routledge, 2007).15 Steven Chang, China’s Economic System (Beijing: CITIC Publishing Press, 2009).16 Gallagher and Dong, supra n. 10.17 Yu-Fu Chen and Michael Funkeb, “China’s New Labour Contract Law: No Harm to Employment?”BOFIT Discussion Papers 29 (Institute for Economies in Transition, Bank of Finland).18 Zhiping Liang, “What is Legislation for?” Economic Law and Labour Law 9 (2008): 19.83avoid their forthcoming legal obligations. For instance, some employers fired manyworkers and rehired them, in order to alter the start date of employment.19 Somecompanies forced workers to sign contract with inaccurate data, or in languages that theemployees could not read. Other firms shut down and recommenced under new companynames; others moved to inland provinces; and others folded without paying theiremployees.20 Hence, labour disputes and protests have sharply increased.213.2.2 Major Changes in Labour Contract LawThe new Labour Contract Law initiated many significant changes.22 First, it mandatedwritten contracts for all workers: employers who did not sign labour contracts within amonth of employment were required to remunerate double salaries.23 Second, employeesthat successfully completed two fixed-term contracts and those with a decade ofemployment were declared to have earned open-ended contracts; thus, they could only beterminated with just causes. 24 Many organizations utilized fixed-term contracts toterminate employees; thus, this restriction is important.25 If an employee has not signed a19 Hong Chen, “Thousands of Huawei Staff ‘Quit,’” China Daily, November 3, 2007, accessed May 282015, http://www.chinadaily.com.cn/bizchina/2007-11/03/content_6228248.htm.20 Becker and Elfstrom, supra n. 4; Jenny Chan, “Meaningful Progress or Illusory Reform? AnalyzingChina’s Labour Contract Law,” New Labour Forum 18.2 (2009): 43.21 Ho, supra n. 8.22 Ibid; Gallagher et al. supra n. 5; Jenny Chan, supra n. 20; Chen and Funkeb, supra n. 17; Remingtonand Cui, supra n. 7; Freeman and Li, supra n. 12.23 Labour Contract Law, Clause 82.24 Labour Contract Law, Clause 14.25 Gallagher et al. supra n. 5.84contract in 12-months’ of employment, it is assumed that the two parties have entered anopen-ended labour contract. 26 Third, the Labour Contract Law reconfirms existing workinjury, social insurance, work conditions, and wage provisions.27 Contracts must confirmthese or workers have the opportunity to demand that their contract be renegotiated.28The Labour Contract Law also orders violators to pay default social insurancepayments.29 Moreover, Labour Contract Law devotes a section to the use of “dispatch”labour. It clarifies employers’ responsibilities to workers, acquired through labourdispatch agencies, such as equal pay with permanent employees, and the role of unionsand collective bargaining.30 Since companies use the “dispatch” labour system to shirktheir responsibilities to pay wages and social insurance, these changes are significant toprotect dispatched workers’ rights.31 The Labour Contract Law also directs governmentagencies to monitor that firms follow their legal duties to enrol employees into varioustypes of social insurance.32These new labour regulations in China are very strict compared with other countries,even with the developed countries.33 Using the standard of Employment ProtectionLegislation (EPL) of OECD, the PRC obtained a score of 3.2 out of 3.5, places the third26 Labour Contract Law, Clause 14.27 Labour Contract Law, Clause 17, 38, 74.28 Labour Contract Law, Clause 18.29 Labour Contract Law, Clause 38, 46.30 Labour Contract Law, Clause 4, 43, 51, 53, 54, 58, 67, 92.31 Remington and Cui, supra n. 7.32 Labour Contract Law, Clause 74.33 Gallagher et al. supra n. 5.85place of all OECD nations, as a result of the Labour Contract Law.34 However, somestudies challenge that the new Labour Contract Law does not actually provide employeeswith greater rights; rather, it elucidates existing rights and increases legal sanctionsagainst employers found in violation.353.2.3 Individual Contract or Collective ContractChina enacted the Labour Contract Law to manage an intense increase in labour protestsand unrest that have developed since the 1990s.36 A 2007 ACFTU survey determinedthat around 12 percent of participants had been involved in labour disputes.37 From 2001to 2008, collective labour disputes increased at a rate of 11 percent every year. 38 For theChinese regime, collective labour disputes have the potential to becomepolitically-oriented demonstrations; the government is strongly opposed to any type ofcollective action.39 Some literature explores that a significant aspect of the LabourContract Law was to resolve labour disputes peacefully and individually before they34 OECD, OECD Indicators of Employment Protection.http://www.oecd.org/employment/emp/oecdindicatorsofemploymentprotection.htm. Accessed on June 10,2017.35 Remington and Cui, supra n. 7.36 Ibid; Gallagher et al. supra n. 5.37 Mingwei Liu, “Conflict Resolution in China,” In The Oxford Handbook of Conflict Management inOrganizations eds. William K. Roche, Paul Teague, and Alexander J. S. Colvin (Oxford: Oxford UniversityPress, 2014), 488.38 Wang Jing, “Collective Consultation and Labour’s Collective Rights in China,” ILERA 16th WorldCongress, 2012.39 King, Pan and Roberts, supra n. 4.86become collective conflicts.40 The Labour Contract Law reflects the regime’s preferencefor individual contracts. It does not mention collective bargaining, instead referring tocollective consultation (jiti xieshang).41 In practice, collective contracts can arise on aregional or industrial basis,42 providing a general framework, and suggesting minimumcriteria for compensation and employment environments.43 Moreover, the regime did notprovide political independence to groups like unions, media, or political parties.44 It didnot move toward a system of collective bargaining between organized labour andemployers’ associations.453.2.4 Impacts of Labour Contract LawTo date, there remains disagreement on the impacts of Labour Contract Law in China.Much literature claims that labour regulations would decrease employment andcompetitiveness in developing countries.46 Some studies argue that stringentadministration of labour rules increases the price of formal employment, resulting in40 Remington and Cui, supra n. 7; Lee and Zhang, supra n. 9.41 Labour Contract Law, Clause 51.42 Labour Contract Law, Clause 53.43 Tim Pringle, Trade Unions in China: The Challenge of Labour Unrest (London: Routledge, 2011), 117.44 Remington and Cui, supra n. 7.45 Remington and Cui, supra n. 7.46 Timothy Besley and Robin Burgess, “Can Labour Regulations Hinder Economic Performance? Evidencefrom India,” The Quarterly Journal of Economics 119 (2004): 91; Horst Feldmann, “The UnemploymentEffects of Labour Regulation around the World,” Journal of Comparative Economics 37 (2009): 76;Simeon Djankov and Rita Ramalho, “Employment Laws in Developing Countries,” Journal ofComparative Economics 37 (2009): 3.87more casual employment.47 Some literature suggests that the new regulations have madeconsiderable impacts on employment relations in China.48 A growing number of workersare aware of the new labour laws; the proportion of employees protected by labourcontracts increased significantly; and the recent rules led to a dramatic increase indisputes files by employees.49 However, other scholars believe that the actual effect ofthe Labour Contract Law cannot be calculated specifically. Given that labour legislationsin the past gave rise to the frequent use of informal labour, many question if the recentlaw has been implemented in a concrete manner.50 As Gallagher observes, the LabourContract Law seems “aspirational.”51There are some empirical studies that consider the impacts of the Labour Contract Law.For instance, based on cross-sectional surveys of workers in the Pearl River Delta, Li etal. find that the Labour Contract Law increased the quantity of employees with bindingagreements, elevated the levels of social insurance, and diminished violations of workers’rights. Li et al. conclude that the Labour Contract Law does not escalate costs ofcompanies that adhere to regulations, and it aids to develop an organized system.5247 Rita Almeida and Pedro Carneiro, “Enforcement of Labour Regulation, Informal Labour, and FirmPerformance,” World Bank Policy Research Working Paper 3756 (2005); Chen and Funkeb, supra n. 17.48 Gallagher et al. supra n. 5; Remington and Cui, supra n. 7.49 Gallagher et al. ibid; Remington and Cui, ibid.50 Remington and Cui, ibid.51 Mary E. Gallagher, “China’s Workers Movements and the End of the Rapid-Growth Era,” Daedalus143.2 (2014): 81.52 Gang Li, Keting Shen, and Chaoxian Guo, “Road to Enhance the Competitiveness of China’sLabour-intensive Industries – A Survey after the Implementation of “China’s New Labour Contract Law,”88Cheng and Yang surveyed six hundred human resource managers to determine that theLabour Contract Law increases the potential of employees inking labour contracts,increases their length, the amount of open-ended labour contracts, and results in sharperemployee evaluation. In addition, it augments labour expenses and inhibits labourflexibility. Meanwhile, the new regulations’ effects differ considerably in organizationsof diverging size.53 Freeman and Li conducted cross-sectional surveys of migrantworkers in Pearl River Delta in 2006, 2008, and 2009, and find that the new law greatlyincreased the likelihood that migrant workers obtained a written contract, as well associal insurance and unions at their workplace, and were less likely to experience wagearrears.54 Gallagher et al. conclude that the Chinese governments have worked toimplement the Labour Contract Law, and highlight that application of it variestremendously across provinces. They underline that higher educational attainment ishighly associated with citizens’ belief that labour regulations are enforced, especiallyamong those who graduate from college.55Other empirical studies provide less positive findings. From interviewing over threehundred workers in the Pearl River Delta and the Yangtze River Delta, Becker andChina Industrial Economics 9 (2009): 37.53 Yanyuan Cheng and Yang Liu, “The Impact of Labour Contract Law’s Enforcement on ChineseEnterprises’ Human Resources Management – Based on the Perspective of HR Managers,” EconomicTheory and Business Management 7 (2010), 66.54 Freeman and Li, supra n. 12.55 Gallagher et al. supra n. 5.89Elfstrom indicate that more of them have inked contracts since the new law was enacted,but that the total of people with formal contracts remains slight compared to other areas.Many people divulged that their contracts did not have all the provisions that the lawdemands. Becker and Elfstrom also noted that the regulation has helped the agingpopulation more than it has helped the upcoming workforce.56 Based on a survey ofworking conditions in the several Yangtze River Delta cities, Wang also providedunsatisfying discoveries. 46.3 percent of workers in Wenzhou did not have a contract.57Some literature contends that if the Labour Contract Law aims to prevent moreconfrontational collective labour unrests, then the results are effective to some extent.Wildcat strikes endure. At the beginning of 2015, the China Labour Bulletin reported thatin the year-to-year comparison, there had been triple the amount of strikes.58So far, most of the literature regarding implementation of the new Labour Contract Lawfocuses on workers in the Pearl River Delta, and in big cities, including Beijing andShanghai. The majority of the empirical surveys are cross-sectional and cross-provincial.Seldom does research concentrate on a specific industry. Fewer studies have beenconducted of migrant workers came from the same province. However, theimplementation of Labour Contract Law varies greatly from industry to industry, and56 Becker and Elfstrom, supra n. 4.57 Wang Chen, “An Investigation of the Conditions of Rural Migrant Workers’ Rights during the FinancialCrisis” (Jinrong weiji beijing xiade nongmingong quanyi zhuangkuang diaocha), Labour Law Review(2009).58 Economist, “Out Brothers, Out!” January 15, 2015.90from region to region due to various economic situations and cultures. Moreover, theoriginal legal culture of migrant workers came from different hometown also variesconsiderably. Hence, this study focuses on the migrant construction workers who allcame from the same hometown, Shuangfeng County, Xiaogan, Hubei Province, andelaborates their legal culture regarding the Labour Contract Law, and related legal reformand legal system in China.3.3 Subcontracting SystemWhen exploring the construction migrant workers’ legal culture, it is critical to explorethe highly-exploitative subcontracting system in the construction industry incontemporary China.59 In the market economic reform, in order to reduce production andmanagement costs and increase efficiency, labour services have been gradually strippedfrom construction companies, and hence the separation of management and labourservices has led to this subcontracting system emerged.60 Pun and Lu indicate that thesubcontracting structure is comprised of two practices: the swift commodification oflabour through non-industrial social relations organized in rural areas; and the urban59 Ngai Pun and Huilin Lu, “A Culture of Violence: the Labour Subcontracting System and CollectiveAction by Construction Workers in Post-Socialist China,” The China Journal 64 (July 2010); Guang Lei,“The Market as Social Convention: Rural Migrants and the Making of China’s Home Renovation Market,”Critical Asian Studies 37.3 (2005): 391; Yuan Shen, Market, Class, and Society (Shichang, Jieji yu shehui)(Beijing: China Social Sciences Publishing House, 2007), 216.60 Heping Yan, Lujun Chang and Junbo Chang, “Research on the Mechanism of Labour Subcontracting inconstruction (Jianzhu Shigong Laowu Fenbao Jizhi Yanjiu),” Construction Management Modernization(Jianzhu Guanli Xiandaihua) (2004).91expropriation of labour at the time of manufacture. This subcontracting system results inendless processes of organizations being behind on their payroll and fierce disputes ofproduction employees. 613.3.1 Lu Ban Temple – Guild System in Ancient ChinaBefore the 19th century, construction workers in China belonged to a guild, the Lu BanTemple.62 Guild members were excluded from the proletariat category, because theirrelationship to their employers was not capitalist, but rather feudal.63 The guild’sfundamental goal was to shelter its members from the treacherous environment. Toincrease cooperation and avoid competition between masters, apprentices were distinctlylimited.64 They introduced high criteria for internship, resources, manufacturing, andmarketing; in order to enable its members to reduce costs and compete unfairly with the“outsiders.”65 Shaffer suggests that the ideological rationale of such unions was one ofstrongest adhesives in Chinese culture: the family ethic. Construction masters believedthey were descendants of the mythical Lu Ban. Guild masters were parents, and61 Pun and Lu, supra n. 59.62 Lynda Shaffer, “Mao Ze-dong and the October 1922 Changsha Construction Workers’ Strike,” ModernChina 4.4 (1978): 383.63 Jean Chesneaux, “The Chinese Labour Movement, 1919-1927” Translated by H. M. Wright (Stanford:Stanford University Press, 1968).64 Shaffer, supra n. 62.65 Hosea Ballou Morse, The Gilds of China: with an Account of the Gild Merchant or Co-hong of Canton(New York: Russell and Russell, 1967), 3.92apprentices were adopted children.66 For over a thousand years, such guilds wereinfluential, until free traders arose in the nineteenth century.67Around the middle of the 19th century, the labour subcontracting system was introducedinto China. The Western construction companies commenced employing rural people bysubcontracting; local companies also started to employ it after 1880.68 Hence, the guildsystem was weakened. Some masters became entrepreneurs, and journeymen becameemployees.69 The new entrepreneurs made good money, while journeymen earned only10 cents per day in 1922.70 Journeymen realized that they were proletarians, and theirguilds did not represent or protect their interests any longer. In October 1922, fourthousand construction workers implemented a strike and developed the ChangshaConstruction Workers’ Union. Mao Zedong was the leader of this campaign.713.3.2 State-Owned Construction Enterprises since 1949From 1949 to the end of 1970s, the state-owned enterprises were the major force in the66 Rui Li, The Early Revolutionary Activities of Comrade Mao Ze-dong (Mao Ze-dong Tongzhi de ChuqiGeming Huodong).(Beijing: Zhongguo Qingnian Chubanshe, 1957).67 Shaffer, supra n. 62.68 Youjie Lu and Paul W. Fox, “The Construction Industry in China: Its Image, Employment Prospects andSkill Requirements,” International Labour Organization, Geneva (October 2001), 13.69 Gail Hershatter, The Workers of Tianjin, 1900-1949 (Stanford: Stanford University Press, 1986),101-104.70 Ibid; Shaohua Li, “Mao Zedong and Changsha Construction Workers’ Strike (Mao Zedong he ChangshaNimu Gongren Da Bagong),” Hunan Workers’Daily, November 20th, 2013, access July 8, 2015,http://media.workercn.cn/sites/media/hngrb/2013_11/20/GR0103.htm.71 Hershatter, supra n. 69; Shaffer, supra n. 62.93construction industry in China, and the subcontracting system was ended. From 1949, oneof the primary challenges for the government was to rebuild the war-torn cities. Therewas a serious deficit of skilled construction workers; therefore, the State Council usedlabour from the People’s Liberation Army. Multiple army divisions were amalgamatedinto government-owned enterprises, and they became the most influential pillars of thenation’s industry.72 From 1949 to the late 1980s, the SOEs dominated industrialproduction in China. They guaranteed lifetime employment, and provided welfare from“cradle to grave” for urban industrial employees. This was labeled as the “iron rice-bowl”(tie fan wan) system.73 By 1980, of the ten million construction employees,approximately half worked for the state while the other half worked for collectives. Lessthan 10,000 employees worked for private companies, accounting for only 1% of theindustry.74 Employees of collectives typically had reduced security and remunerationscompared with SOE workers; however, they also enjoyed regular payment and reasonableworking hours.75In the fieldwork, I found that construction work was regarded as a highly-skilled andrespected job before the market economic reform initiated from 1978. It was nice to bepulled from rural villages to work in the construction industry. As Hongliang, born in72 Ministry of Construction of PRC, Report on the Fifty Years of New China’s Construction Industry (XinZhongguo jianzhu ye wushi nian) (Beijing: China Three Gorges Press, 2000), 3.73 Hong Yung Lee, “Xiagang, the Chinese Style of Laying Off Workers,” Asian Survey 40.6 (2000): 914.74 Ibid n. 73.75 Pun and Lu, supra n. 59.941965, told me,I went to build Gezhouba Dam right after I graduated from middle school.We worked for the People's Commune, and were paid more than 2 yuan perday. You know, when we worked in our village, we could only make a fewcents every day! That was a very good job! They never default our wages.It was the People's Commune, you know! It was not easy to find such a job.You need to have Guanxi!763.3.3 Lubuge Project in 1980Since the late 1980s, Chinese economic reform has altered industrial relations. The ‘ironrice-bowl’ system was broken. Millions of employees have been terminated by SOEs.The unitary, state-dominated ownership system was broken by diversified ownershipforms, including foreign, joint-venture and private companies.77 Furthermore, theworkforce is increasingly diverse. Millions of migrant workers poured into moredeveloped urban areas looking for extra income.78 “Contract workers” and “temporaryworkers” have overcome “permanent workers” as the dominant feature in employment.79The economic reform also led to the end of socialist labour relations in the constructionindustry ever since the beginning of 1980s. The goals of reform in the constructionindustry included restructuring the management system, opening construction markets,76 Juan Li, (December 28, 2014), Personal Interview.77 Yongshun Cai, State and Laid-off Workers in Reform China: the Silence and Collective Action of theRetrenched (Oxford: Routledge, 2006); Cherrie Jiuhua Zhu, Human Resource Management in China, Past,Current and Future HR Practices in the Industrial Sector (Oxford: Routledge Curzon, 2005).78 Liren Shen, Chinese Migrant Workers (Zhongguo Nongmingong) (Beijing, Democracy and ConstructionPress, 2005).79 Zhu, supra n. 77.95allowing autonomy in SOEs, and establishing a competitive bidding system.80 In 1980, aWorld Bank project, Lubuge Hydropower in Yunnan Province, challenged socialistpractices by employing international competitive bidding system and laboursubcontracting system.81 These experiences have impacted the entire constructionindustry, and were considered useful for reducing costs, ensuring quality, and increasingproject management capability.82In 1984, the State Council issued an important document, “Tentative Provisions forConstruction Industry and Basic Administration System Reform.”83 It clearly stated that,an investment-responsibility-system and a bidding-contract-system must be fullyimplemented in the construction industry.84 In its third clause, the Tentative Provisionsstated, “The contracting enterprises that accept the commissions from the awarding unit,or win bids, can general contract the whole project or contract parts of the project,including survey, research, design, purchase, engineering construction, installing, testing,and putting into production.”85 The thirteenth clause required the state-owned80 Richard E. Mayo and Gong Liu, “Reform Agenda of Chinese Construction Industry,” Journal ofConstruction Engineering and Management 121.1 (1995): 80.81 Lei Guang, “The Market as Social Convention: Rural Migrants and the Making of China’s HomeRenovation Market,” Critical Asian Studies 37.3 (2005): 391.82 China Construction Industry Association, China Construction Industry Development Strategy andIndustrial Policy Research Report (Zhongguo Jianzhuye Fazhan Zhanlue yu Chanye Zhengce YanjiuBaogao) (Beijing: Construction Industry Publishing, 2005), 6.83 Tentative Provisions for Construction Industry and Basic Administration System Reform,http://www.people.com.cn/item/flfgk/gwyfg/1984/112501198402.html.84 Ibid, Clause 1 and Clause 2.85 Ibid, Clause 3.96construction enterprises gradually reduce the proportion of fixed workers, and shall notrecruit fixed workers in future, except necessary technicians.86These political and legal changes led to a boom of subcontracting system in theconstruction industry since the end of 1980s. The top-tier contractors control thedevelopmental initiatives as a result of their associations with governments. Theyoutsource different work to lower-tier subcontractors in different sectors, and transferfinancial risks and labour recruitment to the subcontractors.87 The developers and generalcontractors normally do not make bulk payments to contractors until the project is mostlycompleted, while the subcontractors are normally have limited financial capability, andcould not achieve loans from banks. Hence subcontractors often face serious paymentarrears from the very beginning of the contracting process. The labour subcontractorswho are at bottom tier of this subcontracting system would only be paid when the generalcontractor and all the subcontractors at higher tiers have been paid. They certainly wouldnot pay workers until they are paid.88 Therefore, wage arrears remain so common in theconstruction industry that migrant workers normally take this for granted.86 Ibid, Clause 13.87 Pun and Lu, supra n. 5988 Ibid.973.3.4 Autonomous System Built by Xiaogan PeopleIn the highly-exploitative and multi-tier subcontracting system in the constructionindustry in China, the migrant construction workers from Xiaogan have been using theirtraditional strategies to protect their own interest, and to make their weak voices beenheard by unifying. In the past more than thirty years, Xiaogan people have established anational-wide network in the construction industry. By May 2013, there were more than400,000 Xiaogan people working actively at all levels in the construction industry allaround China.89 There are Xiaogan developers, general contractors, sub-contractors,labour contractors, site-managers, material and facilities suppliers, logistics, and all kindsof labourers.90 This national-wide network is effective and exclusive, and is almost anautonomous system in the construction industry.Most migrant construction workers only choose to work for Xiaogan bosses. Their reasonis quite straightforward: Because they know the boss, and know where his house is, iftheir wages are defaulted, they know where to ask for their money. Normally, the migrantworkers are quite confident that the bosses will bring cash to them by December 28th ofthe lunar year. For instance, as Hongliang explained, “I never work for an ‘outsider’ boss.89 Changjiang Times, “There are Xiaogan Plasterersin Every Building in the Northeast (Dongbei MeidongLou Dou You Xiaogan Niwajiang),” May 2nd, 2013, accessed May 30th, 2016,http://www.changjiangtimes.com/2013/05/441741.html.90 Housing and Urban-Rural Development of Hubei, “Ten Construction Brands from Hubei are WellKnown,” Hubei Daily, Page 8, January 17th, 2014, accessed April 26th, 2015,http://news.cnhubei.com/hbrb/hbrbsglk/hbrb08/201201/t1952689.shtml.98What if he runs away? How could I find him and get my money back? Not only me, butalso my son and my brothers. We all only work for Xiaogan bosses.”91 Someconstruction workers change bosses frequently; but nearly all their bosses are Xiaoganpeople. For instance, Peng said, “I normally work for 7 to 8 bosses within one year, backand forth. Who has good projects, I went to whom. All these bosses are Xiaogan people.There are many Xiaogan bosses in Northeast.”92 Xinghong also told me, “As far as Iknow, there are at least 40 Xiaogan bosses working in Huhehaote. I also know more than40 Xiaogan bosses in Xi’an. You know, Xiaogan is the hometown of plasterers.”93 Whatis more important, it is much harder to ask wages back if the boss is an “outsider.” Manyworkers have tried, but they gave up and came back their autonomous system. Forinstance, Xiaohua, one of the three high school graduates, worked for a boss from AnhuiProvince in Ningbo city in 2014, however, he had not received his wages when theinterview was taken. Xiaohua started to be concerned about it, and he told me that hewould go to Ningbo if the wages would not be received in another week. Although hewas confident that he would be paid because the general contractor was a big companyand would pay off his wages if he went there, the back-and-forth travel would cost a lot.Xiaohua was kind of regretful, and told me that he probably would not choose to work foroutsiders.91 Juan Li, (2014, December 28th), Personal Interview.92 Juan Li, (2015, January 21st), Personal Interview.93 Juan Li, (2015, February 5th), Personal Interview.99The same is true for the other side of the coin, as Xiaogan bosses prefer to hire theirco-villagers because of less financial pressure and mutual trust. In the constructionindustry, there is a well-accepted “custom” that workers get paid when the project iscompleted. But when workers and subcontractors are both from Xiaogan, there is aconsensus that workers would get paid by the end of the lunar year. This long-termpayment greatly relieves the financial burden of Xiaogan bosses. In contrast, if themigrant workers work for “outsider” bosses, their requirements of payment became quiteharsh. They normally require the outsider bosses to pay in cash every day, and if the bossdefaults on their wages for even one single day, the migrant worker would leaveimmediately. As Bo said, “If they don’t pay us today, no one would show up on sitetomorrow!”94 It is doubtless that contractors and subcontractors do not want such harshpayment terms, and thus they all prefer to recruit their co-villagers.Thanks to this nation-wide network and convenient communication within theirautonomous system, Xiaogan plasterers have gradually established their reputation in theconstruction industry in China, especially in the Northeast areas. Xiaogan plasterers arefamous because of their outstanding skills, hard work, and efficiency.95 What is moreimportant, when a project is in a short deadline, hiring Xiaogan plasterers is the bestchoice. It is easy to gather dozens of skilled Xiaogan plasterers in a short time, and to94 Juan Li, (2015, January 21st), Personal Interview.95 Changjiang Times, supra n. 89.100guarantee to complete the project on time. As Peng stated proudly, “If the payment isgood, we can call our friends and relatives to come to help! No matter how rushed thedeadline is, we can do it. Only we Xiaogan plasterers can guarantee this!” 96This powerful autonomous system of Xiaogan people in the construction industryprovides protections for migrant workers at the lowest cost, and strong support forXiaogan bosses; it also maximizes the profit and interest for both parties in long term. Itis the essential foundation of the booming development of the construction sector inXiaogan area. This autonomous system is built based on family relationship, and themajor rule within this system is family ethic and morality, rather than the notion of rule oflaw, or any contract.3.4 Migrant Construction Workers’ Legal CultureRegarding Labour ContractsCompared to the past empirical studies, this study provides more negative findings withrespect to the enforcement of Labour Contract Law. Among the 34 interviewees, 27migrant construction workers have never signed any labour contract. Only 6 intervieweeshad ever signed labour contracts. Another interviewee signed one labour contract in 2012,but it turned out to be a fraud. This interviewee was cheated by a Xiaogan labour96 Juan Li, (2015, January 21st), Personal Interview.101subcontractor to work in Africa barely with any payment and had to stay there for nearlysix months. Among these 6 participants who were covered by valid labour contracts, 4signed labour contracts in Beijing, and 2 in Guangdong Province (See Table 3.1). 5 out ofthese 6 interviewees had only signed a labour contract once, and only one participant,Hongliang, had signed more than one labour contract. Only Guohui and Jinyun, whowere both site managers and signed their labour contracts in Guangdong Province, readthe content, and kept the copies. All the other four interviewees who had signed labourcontracts had never read them, and did not keep any copies. Considering the largenumber of construction projects in which each interviewee has participated, the rate ofsigning labour contract in the construction industry is astonishingly low, even by at thebeginning of 2015, seven years after the Labour Contract Law was enforced.Table 3.1: Basic Information of the Interviewees Covered by Labour ContractsName Year ofbirthEducationachievementMarriagestatuspositions How many labourcontracts they havesignedIn which citysigned labourcontractsJinyun 1961 HighSchoolMarried Site manager Once Huizhou(Guangdong)Guohui 1964 MiddleSchoolMarried Site manager Once Dongguan(Guangdong)Hongliang 1965 MiddleSchoolMarried Plasterer’sassistantMore than once BeijingAiguo 1968 MiddleSchoolMarried Plasterer Once BeijingJie 1988 MiddleSchoolMarried Plasterer Once BeijingZhao 1990 MiddleSchoolNevermarriedPlasterer Once Beijing1023.4.1 Labour Contracts: Important or Unnecessary?It is somewhat surprising how negative migrant workers’ attitudes were towards labourcontracts, given that the Labour Contract Law of China has been enforced for seven years.Among the 34 migrant construction workers I interviewed, only three stated that labourcontracts were useful and important: Hongliang, Hongbing, and Jie. Hongliang isHongbing’s elder brother, and Jie’s father. In other words, only the members of onefamily felt this way. Of the three, Hongliang demonstrated the most positive attitude withrespect to labour contracts. He claimed,A labour contract is useful, of course! With a contract, even if the littleboss runs away, we can go to the company to ask for wages. Without acontract, how can the company know who we are? With the contracts, Iam not afraid even if the boss runs away. The boss runs away, thecompany is still there; if the company runs away, the developer is stillthere; even if the developer runs away, the Labour Bureau is always there!The developer’s deposit is still in the Labour Bureau.97Jie, Hongliang’s son, signed his only labour contract in Beijing, while Hongbing hadnever signed any labour contract. Jie and Hongbing’s attitudes are not as positive asHongliang’s. They both thought it was good to be covered by labour contracts; however,both primarily work in the Northeast, where labour contracts are uncommon, but incomeis higher. As Jie explained, “A labour contract is important, but not as important as money,of course.” This is a sentiment with which Hongliang agreed.97 Juan Li, (2014, December 28th), Personal Interview.103Besides Hongliang’s family, all of the other interviewees thought that labour contractswere unnecessary and unimportant, even those who had signed labour contracts, and whopresumably could have benefited from them. For instance, Zhao, born in 1990, signed alabour contract once in Beijing. However, he did not read its content, did not keep a copyof the contract, and did not seem to care. As he described, “We went into the (manager’s)office, signed the contract, and left. They told us where to sign, and that’s where wesigned. We don’t keep one, and we don’t read it. It does not matter. Our jobs are notdangerous anyway.”98 Zhao believed that labour contract was only a compulsoryprocedure required by the formal company, and migrant workers did not need it.Some rural youth who preferred odd jobs in the Northeast even thought that labourcontracts placed restrictions on workers, rather than protecting them. Because of theunstable nature of their construction work, they did not want to make long-term promisesto bosses. They were afraid that labour contracts would bring trouble. For instance, Pengsaid, “It (labour contract) is totally unnecessary! We don’t know how many days we willwork for this boss, then what is the point to sign a labour contract? What if we want toleave earlier? It is like a restriction for us!”99 It is certain that the unstable nature ofconstruction jobs also greatly devalued the importance of labour contract in this industry.98 Juan Li, (2015, January 7th), Personal Interview.99 Juan Li, (2015, January 21st), Personal Interview.1043.4.2 The Most Influential Factor – Host CityAccording to the primary data, the most influential factor in whether a constructionmigrant worker is covered by a labour contract is the host city in which the intervieweeworks. Migrant construction workers working in Beijing and Guangdong Province havemore chance of being covered by labour contracts, especially those in Beijing. Forinstance, Hongliang, who worked in Beijing during 2014, said that he signed labourcontracts for every project he worked, except one “informal” project, building a privatekindergarten. Hongliang believed the reason why the Beijing local government paid moreattention to labour rights was because it was more “scared” of labour unrest thangovernments in other areas; “It is Beijing, you know!”100 Along similar lines, Hongliangbelieved that the political and legal changes to the construction industry were the result ofworkers’ constant struggle.101To clarify, “formal” (Zhenggui102) is a laudatory word that was frequently heard duringmy fieldwork. The migrant workers often used this word to praise enterprises that operatemore like SOEs, for which they had never worked because of household registrationsystem restrictions, and towards which they expressed mixed feelings of admiration andawe. If they ever worked in projects contracted by large, state-owned constructioncompanies, such as those ten State-owned Construction Bureaus of China, they felt a100 Juan Li, (2014, December 28th), Personal Interview.101 Ibid.102 正规105sense of pride, and often mentioned these experiences in their interviews. As such, whendescribing an enterprise as “formal,” respondents tended to mean that the enterprise had agood relationship with local governments, had sufficient funds, the capability to contractconstruction projects, or subcontract big parts of projects, and, most importantly, paidworkers on time and in full.In contrast, “informal” (bu zhenggui103) was often used as a derogatory term to criticizesmall private companies with limited financial capability, and limited “guanxi” withgovernments. These small private enterprises normally can only subcontract small partsof projects, and sometimes cannot get their own payment from contractors, let alone payworkers’ wages. Respondents expressed feelings of disdain towards these informalcompanies, referring to their owners as “little bosses.” Unfortunately, in mostcircumstances, migrant construction workers have to work for the “informal” “littlebosses,” because both are at the lowest tier of the subcontracting system in this industry.All the other factors, including education background, age and marriage status, seem tohave limited influence on migrant construction workers’ legal culture regarding labourcontract. For instance, As Gallagher et. al. explain, higher educational attainment isstrongly associated with perceptions of better labour regulations enforcement, especiallyfor those who graduated from college. Education strongly predicts whether or not a103 不正规106migrant worker will have a labour contract.104 However, according to the primary datacollected from Xiaogan area, education does not have an obvious impact on the chancesof Xiaogan construction workers covered by labour contracts. Only one of three highschool graduates had signed a labour contract once, and neither of the remaining two had.Gallagher et. al. also suggest that age is a relatively unimportant factor,105 and empiricaldata from this study supports this conclusion. Of the six migrant workers who hadpreviously signed labour contracts, their ages varied widely. Four of them were born inthe 1960s, one was born in 1988, and one in 1990. As such, there is no evidence that thechance of signing labour contract varies among different age groups. In addition, maritalstatus is also as an unrelated factor.3.4.3 Generation DifferencesAccording to the primary data, age seems an unrelated factor to migrant constructionworkers’ legal culture regarding labour contracts and related legal system. But there arestill some interesting generation differences among the construction migrant workers. The“new generation migrant workers” normally refers to the migrant workers born after 1980,and older than 16.106 Among the 34 interviewees, there are ten born after 1980. In muchliterature in this area, the new generation migrant workers are described as the first104 Gallagher et al.supra n. 5.105 Ibid.106 Gongcheng Zheng and Ruolian Huang, Chinese Migrant Workers: Issues and Social Protection(Zhongguo nongmingong wenti yu shehui baohu) (Beijing: Renmin chubanshe, People Press, 2007).107generation to grow up in prosperity, without worrying about food and shelter. Many ofthem have never laid down roots, and they tend to be better educated than the eldergeneration of migrant workers.107 Only a small part of these descriptions are supportedby the primary data of this study.According to the first hand data, the new generation migrant workers do have much lessfarming experiences than the older generation. Nine out of ten participants born after1980 have never done any farm work, while all the older generation migrants had farmingexperiences. The only exception to the new generation, Zhiliang, was born in 1981. Heclaimed that he did a little farm work after graduation from middle school. In fact,Zhiliang believed that the year dividing “new generation” and “old generation” should be1985, rather than 1980. He insisted that the rural residents born between 1980 and 1985shared few differences from those born in 1970s, while the rural youth born after 1985were quite different. Zhiliang said, “We are definitely different from them, those post-85s.Most of them cannot endure hardship, and they spend more than their income. They areboomerang children. We are more like the post-70s. We work hard, and take more familyresponsibilities.” Zhiliang mentioned the word “responsibility” many times in the107 China Review News, “Han Changfu, Secretary of Agriculture Ministry Talks about New Generation ofMigrant Workers,” China Review News, February 1 2010, accessed June 6 2015,http://mag.chinareviewnews.com/doc/1012/1/6/9/101216949.html?coluid=7&kindid=0&docid=101216949&mdate=0201144628; also Mingxin Bi, “Young Migrants Settle for Life in the City,” China Daily,February 26, 2008, accessed June 6 2015,http://news.xinhuanet.com/english/2008-02/26/content_7671827.htm; also Andy Xie, “DismantlingFactories in a Dreamweaver Nation,” Caixin Online, June 7, 2010, accessed June 6 2015,http://english.caing.com/2010-06-07/100150460_2.html.108interview.108Zhiliang’s opinions were only partly echoed by other interviewees. Among the nineparticipants born after 1985, five of them claimed that they had been taking care of theirparents or kids, and were under a lot of pressure. The other four interviewees were inbetter family and financial conditions, which meant that their parents were healthy, theirfathers – or both parents – were still actively working on construction sites, their weddinghouses had been built and decorated, and they as yet had no kids. They do spend morethan the older generation, and cannot save much.During my fieldwork, I found two noticeable differences between the two generations ofmigrant workers. The first difference is the reasons of migration. All the intervieweesborn before 1980 migrated because of land shortage and poverty; while the rural youthgave different answers. Kai, born in 1990, said that he went to work in some electronicfactories in Shenzhen and Dongguan after he graduated from middle school, in order tofind a girlfriend. He went together with four friends, all at his age, and all aimed to finddates in those factories, because they heard that there were many girls working there andmuch fewer boys. Kai told me, “I had a girlfriend there. It was an experience. But Imarried a girl from my hometown. It is better to marry someone from the same place.”109108 See Juan Li, (2015, January 9th), Personal Interview.109 See Juan Li, (2015, January 18th), Personal Interview.109In those factories, Kai and his friends only made around 2,400 yuan per month, andalways worked late, till 11pm. Kai, of course, was not satisfied with the income, but didnot mind. He said, “I went to the factory for fun, not for money. When I did not want towork, I called sick leaves. If I was short of money, my parents would give me some.”110Kai was the only boy in his family, and had an older sister. He admitted that his parentsspoiled him. Before graduation from middle school Kai never did any housework, letalone farm work.When Kai broke up with his factory-girlfriend, he went back to his hometown, andstarted a serious relationship with a local girl, in 2008. His parents built a newtwo-floor-house for him. At that time, he also began working on construction sites: “Iwas forced to work on construction sites. Forced by whom? By reality! All the youth inour village go out to work in construction site. How can I not to? Frankly speaking, ourfamily is in good financial situation in our village. But we have to work constantly tokeep our current living standard.” 111 Kai married in 2011, and his first son was born in2013. He said that he felt a lot of pressure after becoming a father, and realized he musttake more responsibility. He had been working on construction sites with his parents,because his mother could “control money” for him. If he worked by himself, he spent toomuch, and did not save.110 See ibid.111 See ibid.110Another obvious generational difference was respondents’ attitudes toward theirconstruction jobs. The interviewees born before 1985 seldom complained about thehardship and workload on construction sites. In general, they were satisfied with theirjobs because payment was good. Their only concern was whether they could get paid ontime, and the full amount. By contrast, the new generation had strong negative attitudestoward to this industry. Every interviewee born after 1985 told me that he could not getused to the hardship and workload on construction sites. Some of them told me that theycried when they started to work; “It is too exhausting! Too tiring!” they said. Allrespondents did not like working in the construction industry, and several even used astrong word “hate.” For instance, Wei said some of the major reasons why he hatedworking in construction sites were that they were “too dirty, too exhausting, and badliving conditions.” 112 Jie recounted a jingle written by a youth in his village, that migrantconstruction workers “eat pig’s food, do horse’s work, and live in dog’s kennels.”113 Allrespondents affirmed that they would leave this industry if they had other options. In theiropinion, the “option” meant another job that was less exhausting, had better working andliving conditions, and could make at least 5,000 yuan per month.The older generation was fully aware of this difference. As Hongliang, born in 1965, told112 See Juan Li, (2015, February 5th), Personal Interview.113 See Juan Li, (2014, December 28th), Personal Interview.111me,We can endure the hardship in construction sites. It’s ok. What we did inthe past was even harder, and we were only paid a few cents per day at thattime. Now we earn much more. It is ok to work hard as long as we canmake more money. There is nothing to be complained about. But thoseyouth cannot endure the hardship. They are all spoiled at home. Look at myson, Jie, he was even incapable of carrying a single bucket of water athome! He is the little king in our family, and we never let him do anyhousework or farm work at home. 114Some participants support their sons’ desire to work in other industries, such as autorepair or garment-making. Their sons, of course, make less money, and work less hard.However, more interviewees’ sons were still working on construction sites. Allparticipants agreed that if there were better opportunities, they did not want their childrento be construction workers. Kai, the youngest father, with a son older than one, saidexplicitly, “I definitely will not let my son work on construction sites; definitely not!” 1153.4.4 Beijing – Labour Contract is CompulsoryAccording to the primary data, labour contracts have become obligatory, and have beenmandated by the Beijing government since 2013. Making copies of ID cards, signinglabour contracts, and taking safety exams, were three fixed procedures that occur on thefirst day, after entering a “formal” construction site. Furthermore, the local LabourBureau has been quite strict with these compulsory procedures in recent years. The114 See Juan Li, (2014, December 28th), Personal Interview.115 See Juan Li, (2015, January 18th), Personal Interview.112officials of the local Labour Bureau often conduct random inspections on constructionsites. They ask migrant workers whether they have signed labour contracts. If the answeris no, the general contractors and developers are fined, and the project is suspended.Therefore, contractors and developers take these stipulations seriously.As such, there are many advantages to working in Beijing, including higher chancesbeing covered by labour contracts, lower chances of wage default, shorter working hours,and better working conditions. Normally in the Northeast, the migrant constructionworkers work from 3:30 AM to 8 PM, sometimes even longer. For instance, Kaiexplained his daily schedule in the Northeast: “We normally get up at 3am, and works till8pm in the evening, sometime work until 11pm. Some barely take lunch break in order tosave time and make more money, for example, my dad. My mom sends the food upstairsto him.”116 It is shocking to learn of these working hours. Everyone told me the samestory, from the elders in their 60s, to young boys who were only 15, and had justgraduated from middle school. It is also noticeable that migrant construction workerschoose such long working hours voluntarily, because the more they work, the more theyearn. Meanwhile, in Beijing, construction sites are strictly forbidden to operate before 6AM and after 6 PM. Therefore, migrant construction workers in Beijing have muchshorter working hours than those working in other areas, especially in the Northeast.116 Juan Li, (2015, January 18th), Personal Interview.113The living conditions on construction sites in Beijing are also better than those in theNortheast. In Beijing, the government requires every construction site to build temporarylodging for workers. However, in the Northeast, workers often live in the uncompletedbuildings on which they are working. There is no heating system, and sometimes therelack windows, doors, or walls. For instance, as Jie told me, “The winter in Changchun isdamn cold, and long. In November, it is already damn cold. The walls are frozen. Whenwe sleep, snow falls in our bed. When it snows heavily, we cannot go to work because thecement would not dry. So we have to stay in our shabby shelter, sitting in bed, covered bya quilt, play cards or read novels.”117 When learning of the extremely long working hoursand the terrible working conditions in construction sites in China, it is easy to understandwhy the young generation migrant workers use the word, “hate,” to describe their feelingson construction jobs.Despite the advantages of working in Beijing, most interviewees choose to work in theNortheast, instead. The reason speaks to the significant shortcoming of working inBeijing: less income. According to the primary data, as of 2014, an unskilled worker cantypically make 180 yuan per day in Beijing, around 200 yuan per day in the Northeast,and 150-200 yuan a day in other cities. The income of plasterers varies more significantly,as they are paid by the number of square meters they plastered. Due to the longerworking-hours in the Northeast, plasterers can earn much more than those working in117 Juan Li, (2014, December 28th), Personal Interview.114Beijing. According to the primary data, as of 2014, the typical price for plastering workwas around 8 yuan per square meter. A plasterer could normally make around 70-100thousand yuan in Northeast for a whole year, while only 50-60 thousand yuan in Beijing.The income difference is significant.It is notable that Hongliang is the only unskilled worker among interviewees. All of theother interviewees are plasterers, tilling master, or site managers. Hongliang used to be aplasterer, but he lost the first joint of his index finger on his right hand in a constructionaccident in 2012, and had not recovered well. He could no longer perform heavyplastering work, and could only work as an unskilled worker. Since the income differenceof unskilled worker is not that significant in Northeast and Beijing, his family wanted himto work in Beijing where he could have shorter working hours and better livingconditions. This is likely the main reason for why Hongliang chose to work in Beijing,rather than because of labour contracts.3.4.5 Guangdong – Site Managers Covered by Labour ContractsThe two interviewees, Jinyun and Guohui, who signed labour contracts in GuangdongProvince, are both site managers for different construction companies. In many ways, sitemanagers differ from ordinary migrant workers, and play an important role inconstruction companies. They are in charge of everything on sites, including making the115budget, supervising projects progress, purchasing materials and supplies, dealing withrecords and bills, coordinating different parties, dealing with events and issues on sites,etc. They are considered formal employees of the company, while migrant workers are“informal” temporary workers hired by an outsourcer. Unlike migrant workers who getpaid at the end of project, or Lunar Year, construction companies pay site managers on amonthly basis, as with other formal employees. Their wages are seldom defaulted upon.The construction companies in Guangdong not only signed labour contracts with sitemanagers, but also provided social and medical insurance for site managers. It is alsonotable that both Guohui and Jinyun work for Guangdong bosses when they worked inGuangdong, rather than Xiaogan bosses. Different from other migrant workers, they didnot rely on the job referrals from their co-villagers. As Jinyun said, “Once we work as sitemanagers, we know many people in this circle. We stay in touch and refer jobs to eachother all the time.”118Both Jinyun and Guohui complained that companies in Hubei are much more “informal”than those in Guangdong. When the interviews were conducted, both respondents wereworking in Hubei because of family issues, and were working for different constructioncompanies in Suizhou, a city near to Xiaogan. They were still working as site managers,and still got paid monthly. However, the construction companies in Suizhou did not signlabour contracts with them, let alone provide any insurance. That said, Guohui and118 Juan Li, (2015, January 20th), Personal Interview.116Jinyun’s experiences of signing labour contracts in Guangdong does not indicate thatmigrant construction workers in Guangdong have higher chances of signing labourcontracts than those working in other areas. None of the interviewees who worked asconstruction workers told me they had been covered by labour contracts in Guangdong.For instance, Chutian, born in 1953, worked as a water and electricity mechanic for aconstruction company in Guangzhou for a few years. Chutian never signed a labourcontract with this company, and was never covered by any social or medical insurance.Therefore, Guohui and Jinyun’s experiences indicate that site managers in Guangdonghave higher chances of being covered by a labour contract and social insurance than dosite managers working in other areas.3.4.6 Northeast – Odd Work, No Labour ContractsThe remaining 28 interviewees had never signed a labour contract. Most of themprimarily work in the Northeast of China. Thanks to the Revitalize Northeast Campaignin China, there have been more construction projects in the Northeast, and more jobopportunities for Xiaogan plasterers. Compared with other areas, there are moreconstruction odd jobs in the Northeast – this is referred to as “working as a rabbit” (datuzi119), which means workers undertake odd jobs on construction sites and get paid daily.“Rabbits” can earn more than regular plasterers; normally, a plasterer can make around119 打兔子。117400-450 yuan per day in the Northeast, but a “rabbit” can earn more than 500 yuan perday. In fact, when there is a tight deadline, a “rabbit’s” salary could reach 1000 yuan perday. Moreover, the “rabbits” are paid in cash, every evening. Compared to traditionallong-term payment schedules in this industry, such odd jobs are obviously attractive.Young migrant workers prefer odd jobs, which have higher income but less stability.Different from their fathers who tended to stay with one boss for an entire project, oreven year, the rural youth seldom stay on one site for a long time. They switch jobsfrequently. In order to collect and distribute information of odd jobs, there emerges a newposition, “head of rabbits” (tuzi tou120), who is in charge of looking for odd jobopportunities, and referring those to “rabbits.” The “head of rabbits” charge 10 to 20 yuanper day from each “rabbit” for the information.It is also worth noting that rural youth are slightly less loyal to the autonomous systembuilt by Xiaogan people in the construction industry. Since roughly 2013, rural youthhave increasingly worked for “outsiders,” as long as payment is on a daily basis.However, these young men also rely on their autonomous system to find odd jobopportunities, and to evaluate bosses’ reputation. As Peng said, “We check with ourfriends and relatives to find out whether they are reliable on payment.”121 Jie felt120 兔子头。121 Juan Li, (2015, January 21st), Personal Interview.118similarly, explaining that, “Normally we don’t work for outsiders, unless the boss isreferred by our good friends or relatives, someone we trust.” 122Compared with traditional jobs requiring one to live on the construction site, odd jobsearn more, but also cost more. The “rabbits” need to pay for their accommodation andtravel fees, as well as necessities. Wei, a shy boy born in 1990, explained the situation indetail,In the Northeast, I live in small inns. It costs around 20 to 30 yuan forone night. The hotel provides quilts, but I would like buy new ones. Idon’t take a quilt with me. You know, I need to bring my own tools,and don’t want to carry a huge package. Once, I went to Wuhan, with abig quilt. When I got on a bus, the bus driver shouted at me, “Go to theback! So dirty! Dirty!” People on the bus all stared at me. I was tooembarrassed! From then on, I never bring a quilt with me. Every timewhen I go to a new place, I buy a new one.”123In contrast, migrant workers who live on construction sites do not need to pay these feesand costs, as subcontractors take care of everything. Hence, some older intervieweeschallenged the notion that “rabbits” could earn more than those living on sites, due to thehigh costs and unstable job opportunities.Yan’s study of “The Individualization of Chinese Society” provides valuable insight onthis generation differences among the migrant construction workers. Yan explores that122 Juan Li, (201 4, December 28th), Personal Interview.123 Juan Li, (2015, February 5th), Personal Interview.119two of the most profound changes in the Chinese society since the economic reform arethe rise of the individual in both public and private spheres and the consequentindividualization of Chinese society itself. Yan argues that the individuals in China aremore influenced by “modern social institutions” than by family considerations. In thecontext of market economy and globalization, Chinese people have to pay more attentionto individuality and self-reliance.124 This theory of “rise of individual” can help toexplain the different attitudes toward certain traditional Chinese values between the twogenerations.3.4.7 More Job OpportunitiesNearly all interviewees confirmed that it was much easier to find jobs since the end of2000s. For instance, as Kai explained, “It is so easy for a plasterer to find a job nowadays!You just need to walk into a construction site casually. Bang! You got a job!”125 It wasdifferent in the 1990s and 2000s, when bosses chose workers. At that time, migrantworkers needed to have ‘guanxi’ to find jobs. They had to visit bosses’ houses with giftsand kind words. Now, these positions have reversed. Migrant workers can choose bosses,especially skilled masters. During spring festival, bosses visit the masters’ houses withexpensive gifts and compliments. Sometimes, bosses even pay masters 10,000 -20,000124 Yan, Yunxiang. The Individualization of Chinese Society. (English ed.) New York; Oxford, UK;: Berg,2009.125 Juan Li, (2015, January 21st), Personal Interview.120yuan in advance, in order to get a promise of work. As with every boss in the constructionindustry, it is important to have a stable team. This is often referred to as a “family team”(jia banzi126) in Xiaogan area, and refers to a stable and fixed team, where members arerelatives or good friends who would not leave the boss under any circumstance. Familyteams provide strong support for the Xiaogan bosses. Therefore, the bosses try hard toattract good workers into their family teams.3.4.8 Unwritten Contract – “We Had a Deal”During my fieldwork, I often heard the phrase: “We had a deal.”127 Although writtenlabour contracts are still rarely seen in the Chinese construction industry, migrantconstruction workers from Xiaogan rely on their autonomous system to protect theirinterests. This autonomous system based on family ethic, as well as the oral “deal”between members, is astonishingly powerful, and more efficient than current labourcontracts. Both parties take the “deal” seriously, and try to fulfill their liabilities. Workerswork hard, and wait for their wages at the end of lunar year, while bosses take care of allcosts and expenses, and try their best to pay workers in full, by the end of lunar year. It isnormal that Xiaogan bosses pay workers’ wages, even if the contractors or subcontractorshave not paid them. Sometimes, they even take the risk of borrowing at usurious interestrates to pay workers. For instance, as Hongxing explained, “As the old saying goes ‘Man126 家班子127 Their original words were: “Women shuo hao le de (我们说好了的).”121cannot live without face as a tree cannot live without bark.’ People in rural areas taketheir reputation very seriously. Money is only a number in your bank card. Reputation ismuch more important than money.”128 When a boss cannot pay wages by every means, hemay choose to disappear, and never return to his hometown. As rural residents, who careabout clan and family relationships, the cost and shame is too high.Among all of the interviewees, there were two “little bosses,” Zhiliang and Hongxing.Their experiences are representative of subcontractors’ opinions and attitudes in thismulti-tier subcontracting system. Zhiliang used to be a truck driver carrying stonematerial, and became a “little boss” in 2012. He subcontracted a few projects, and madearound 100,000 yuan in 2014. Zhiliang has formed a bond with several workers, but theydo not have a fixed employment relationship. Zhiliang calls the workers if hesubcontracts a project, and the workers come if they are available at that time. The salaryis based on how many days they work for him, or how many square meters they plaster.When asked what happens if he subcontracts a project but cannot find enough workers,Zhiliang responded, “I never worry about this, because I never default any worker’swages. I have a good reputation. Even if the big boss does not pay me, I would pay offworkers using my own money. So many workers are willing to work with me. We had adeal. I have to be responsible for their payment.”129 It is noticeable that both Zhiliang and128 Juan Li, (2015, February 5th), Personal Interview.129 Juan Li, (2015, January 9th), Personal Interview.122Hongxing, the two labour subcontractors, believe that it is their responsibility to pay offthe workers, no matter whether the big bosses pay them or not.Hongxing, born in 1971, one of the three interviewees who went to high school, has beena site manager for more than 20 years, and planned to be a “little boss” in 2015. Differentfrom other interviewees, Hongxing had a very clear plan for his future, and had beenworking hard in order to achieve his goals. He established a good relationship with thosemanagers in the general contracting companies, he studies drawings, and calculated costsand benefits of every project in which he was involved. As he explained, “I need to knoweverything. As Napoleon said, ‘A soldier who does not want to be a general is not a goodsoldier’, right?” 130 Hongxing has also prepared his own “family team” over the past fiveyears. He brought more than ten workers to his sites every year, and took responsibilityfor their costs, accommodations, and wages. As he explained, “These people came for me,and we had a deal. I must take care of everything for them on sites.”131My discussion with Hongxing revealed the process by which this system comes together:Now my boss is waiting for the money in Xi’an. When he gets themoney, he will transfer my part to my card, including my workers’wages and mine. Then I’ll call my workers one by one. ‘Hi buddy, I’llbring cash to your house this afternoon.’ When I arrive, every familymember is waiting for me. They prepare the best food and wine, nomatter what time it is. They would put a pack of good cigarette in mypocket, and keep saying nice words to me. I also say nice words to130 Juan Li, (2015, February 5th), Personal Interview.131 Ibid.123appreciate their hard work for the whole year. We talk and drink veryhappily together. That is the best moment of the whole year! I feel soproud of myself!132Hongxing’s story is really inspirational, especially after hearing so many disappointingand frustrating stories happened in big cities, such as young boys climbing up to a hightower threatening to commit a suicide, old men in their 60s waited for their wages inheavy snow days after nights, migrant workers were driven out of their dormitoriesbecause they refused to leave without wages, etc. Hongxing’s story was really “the bestmoment of the whole year.”1333.5 SummaryBased on the primary data, this chapter explores migrant construction workers’ legalculture with respect to labour contracts and Labour Contract Law in China. Differentfrom much of the literature on the enforcement of Labour Contract Law, this chapternotes that in the construction industry, the implementation of Labour Contract Law is farfrom satisfying. The rate of migrant workers covered by labour contracts in constructionindustry is extremely low. Among the 34 interviewees, there were only six who hadsigned valid labour contracts, and five of those six signed contracts only once. The onlyrespondent who signed labour contracts more than once did so all in Beijing and all in132 Ibid.133 Ibid.1242014. Considering the large number of construction projects in which every intervieweehas participated, the rate of migrant workers covered by labour contracts in this industryis appallingly low.One’s host city is the most influential factor that affects the chances of being covered by alabour contract. In Beijing, migrant workers have a much greater chance of being coveredby a labour contract than in other cities, especially since 2013. The primary concern ofthe Beijing government is to maintain social stability, and local authorities try any meansto mitigate mass unrest, such as labour protests. As such, the Beijing government paysgreat attention to the implementation of labour regulations. This is the main reason whymigrant workers have higher chances of being covered by labour contracts in Beijing.In addition to host cities, one’s position also matters. For instance, site managers inGuangdong province have a greater possibility of being covered by labour contracts, aswell as receiving social and medical insurance. However, there is no evidence thatordinary migrant workers have such chances in Guangdong. Most migrant constructionworkers from Xiaogan chose to work in Northeast of China, with no labour contract, butwith a higher income. There are also greater chances of doing odd jobs and getting paidin cash every day in the Northeast China. Hence, although migrant workers know thatthey have higher chances of signing labour contracts in Beijing, most still choose to workin the Northeast.125Because of the small sample size, it is hard to draw a solid conclusion whether educationis associated with perceptions of better enforcement of labour regulations. Only one outof three respondents who went to high school had previously signed a labour contract.According to the quantitive data, there is no evidence that migrant workers with highereducational achievement have higher chances of being covered by labour contracts.However, quality data can provide some interesting findings. Two out of the three highschool graduates were working as site managers, who are above normal labour workers.They have more power to protect themselves, and seldom worry about wage default.Age is also an unimportant factor with respect to the enforcement of Labour ContractLaw. There is no evidence that the younger generation is better covered by labourcontracts. The most obvious difference between the two generations is that the oldergeneration regards construction work as a good job, and can handle the heavy labour,while the younger generation dislikes this work because it is too exhausting; they wouldleave if they had other options. Unfortunately, it is not easy for them to find other options.All of the interviewees born after 1980 only went to middle school. It is hard for them tofind another job at which they make as good money as they can as plasterers. Moreover,this job gives them more freedom. Essentially, they are their own bosses. They can workor rest on their own schedule, and choose their bosses freely. Therefore, although most ofmy interviewees have tried other jobs, all of them came back to the construction industry.126The second difference between the two generations is that the younger generation has aslightly more open attitude toward working for “outsider” bosses, as long as the paymentterms are good: higher salary and payment in cash, on a daily basis. Even when theyounger generation chooses to work for “outsiders,” they still rely on their co-villagers’referrals. The older generation seldom tries this, and tends to stick to the unwrittenprinciple in their hometown, only working for co-villagers.Apart from one family, all interviewees thought that labour contracts were unnecessaryand unimportant. Even those who had signed labour contracts felt this way. They did notread the content, did not keep it, and did not seem to care. Some of them even thoughtthat labour contracts were restrictive for workers, rather than protective.Although written labour contracts remain rare in the construction industry, the primarydata clearly indicates that migrant construction workers have used traditional methods todevelop an autonomous system, amidst the industry’s chaos, in order to protect theirinterests. This autonomous system is not only efficient, but also powerful. The ideologicalrationale behind it is based on a traditional Chinese adhesive, the family ethic. The oral“deal” between two acquaintances in rural China is more effective and efficient thanwritten labour contracts between employers and employees. It provides the mostconvenience, reduces costs, and maximizes profits for both parties. Thus, based on127rational and practical decisions, Xiaogan migrant workers tend to rely on this traditionalsystem, rather than the formal legal system.128Chapter 4 Labour Disputes4.1 IntroductionOver the past three decades, China has sought fast economic growth under authoritariancontrol, and curbing labour power is one of the most important strategies to appeasebusiness interest.1The economic reform has ended harmonious employment relations, as aresult, Chinese workers have become more vulnerable and marginalized than at any timesince 1949.2 Labour disputes have been on a sharp rise, and industrial conflicts havebecome more violent and collective.3 Some scholars even call China “an emergingepicenter of world labour unrest,”4 or “undeniably the epicenter of global labourunrest.”5 The surge in labour disputes is considered by the regime in China as the“biggest threat to social stability” and its own rule.61 Feng Chen, “Between the State and Labour: the Conflict of Chinese Trade Unions’ Double Identity inMarket Reform,” The China Quarterly 176 (2005): 1006; Gordon White, “Chinese Trade Unions in theTransition from Socialism: towards Corporatism or Civil Society?” British Journal of Industrial Relations34:3 (1996): 433.2 Ching Kwan Lee, Against the Law: Labour Protests in China’s Rustbelt and Sunbelt (University ofCalifornia Press, 2007); Ching Kwan Lee and Yonghong Zhang, “The Power of Instability: TheMicrofoundations of Bargained Authoritarianism in China,” American Journal of Sociology 118:6 (2013):1475.3 Jenny Chan and Mark Selden. China's Rural Migrant Workers, the State, and Labour Politics. CriticalAsian Studies 46 (4) (2014): 599; Jie Shen, Labour Disputes and Their Resolution in China (Oxford:Chandos, 2007), 1; Lee, Against the Law, supra n. 2.4 Ibid; Beverly J. Silver and Lu Zhang, “China as an Emerging Epicenter of World Labour Unrest,” inChina and Transformation of Global Capitalism, ed. Ho-Fung Huang (New York: RoutledgeCurzon, 2004),50.5 Eli Friedman, “China in Revolt,” Jacobin, 7/8, January 29th, 2014, accessed October 12, 2015,http://jacobinmag.com/2012/08/china-in-revolt/.6 Shen, supra n. 3, 2; Thomas F. Remington and Xiaowen Cui, “The Impact of the 2008 Labour ContractLaw on Labour Disputes in China,” Journal of East Asian Studies 15 (2015): 271.129In 2008, three important labour laws – Labour Contract Law,7 Labour Dispute Mediationand Arbitration Law,8 and Promoting Labour Employment Law,9 – were enacted withinone year, which had significant impacts on labour relations and Chinese society.10 Todate, some studies have investigated whether the new labour laws have provided moreprotections for workers in labour disputes. However, there remains a lack of empiricalstudy that explores the ideas, opinions, and attitudes of workers, especially migrantworkers, with regard to labour disputes and related legal system. What do they thinkabout their labour disputes? What are the main causes and nature of their disputes? Howdo they resolve their disputes? What are the main factors that have influenced their legalculture with regard to labour disputes? This study chooses the construction industry as anexample, and attempts to explore the above questions based on primary data collectedfrom interviews with 34 migrant construction workers, who are all originally residents ofShuangfeng Town, a typical rural area in central part of China.4.2 BackgroundA great deal of literature has focused on the sharp rise of labour disputes and protests in7 Labour Contract Law of PRC, http://www.npc.gov.cn/wxzl/gongbao/2013-04/15/content_1811058.htm.8 Labour Dispute Mediation and Arbitration Law of PRC,http://www.gov.cn/flfg/2007-12/29/content_847310.htm.9 Promoting Labour Employment Law of PRC, http://www.gov.cn/flfg/2007-08/31/content_732597.htm.10 Ronald C. Brown, Understanding Labour and Employment Law in China (Cambridge: CambridgeUniversity Press, 2010), 44.130China, ever since the mass retrenchment in SOEs in 1980s. Many studies focus on thenature and causes of labour disputes in China, while others explore the resolution systemof labour disputes, including formal and informal ones.4.2.1 Sharp Rise of Labour Disputes and Protests in ChinaSince the mass retrenchment in SOEs by the end of the 1980s, labour disputes haveincreased dramatically in China. Some literature explores that the increase coincides withthe end of the era of surplus labour. Some literature highlights that that disputes resultfrom a better rights awareness of the workers.11 Based on an investigation undertaken bythe Ministry of Labour and Social Security (MOLSS) of 31 provinces, antonymousregions, and municipal cities in 2005, there were 744,000 labourers registered for labourarbitration, and 19,000 collective labour disputes, involving 410,000 labourers. Besides,labour arbitration committees also settled 94,000 nonregistered labour disputes. Thismeans that there were 860 labour disputes every day, representing an increase of 20.5percent compared with 2004.12 A national survey conducted by the ACFTU in 2007found that roughly 12 percent of surveyed workers had been involved in a labourdispute.13 Collective labour disputes grew at a rate of 11 percent per year between 200111 OECD Library. Labour Market Changes, Labour Disputes and Social Cohesion in China. 2012.12 Ministry of Labour and Social Security (MOLSS), “Labour Dispute Resolution in 2005,” accessed April19 2015, http://www.molss.gov.cn/gb/ywzn/2006-06/08/content_119054.htm.13 Mingwei Liu, “Conflict Resolution in China,” in The Oxford Handbook of Conflict Management inOrganizations, eds. William K. Roche, Paul Teague, and Alexander J. S. Colvin (Oxford: Oxford UniversityPress, 2014), 488.131and 2008.14There also has been a dramatic increase in labour unrest. Since the right to strike wasremoved from the Chinese Constitution in 1982, the legality of striking remains vague.15Hence, the accurate statistics on strikes and protests are unavailable. Popular unrest of alltypes, including labour issues, land struggles, environmental disputes, and so forth, hasrisen steadily over the past two decades. The regime uses the term of “mass incidents” forall these collective actions. Such “mass incidents” jumped from 9,000 separate incidentsin 1994, to 87,000 in 2005.16 The Ministry of Public Security recorded 8,700 “massincidents” in 1993, rising to 32,000 in 1999,17 to 74,000 in 2004, and 87,000 in 2005.18The last time the government released figures, there had been 127,000 “mass incidents”in 2008.19 According to academic statistics, around 36 percent of “mass incidents” areabout labour issues.2014 Wang Jing, “Collective Consultation and Labour’s Collective Rights in China,” ILERA 16th WorldCongress, 2012.15 Taylor Bill, Kai Chang and Qin Li, Industrial Relations in China (Northamption, MA: Edward ElgarPublishing, 2003).16 Murray Scot. Tanner, “China Rethinks Unrest,” Washington Quarterly 27.3 (2004): 137.17 Minxin Pei, “Rights and Resistance: the changing contexts of the dissident movement,” in Elizabeth J.Perry and Mark Selden, Chinese Society: Change, Conflict, and Resistance (New York: Routledge, 2003),29.18 Howard French, “Land of 74,000 Protests (but little is ever fixed),” New York Times, August 24, 2005;Joseph Kahn, “Pace and scope of protests in China accelerated in ‘05’,” New York Times, January 20, 2005.19 Andrew Wedeman, “Enemies of the State: Mass Incidents and Subversion in China,” APSA 2009Toronto Meeting Paper, January 29, 2014, accessed September 16th, 2015,http://papers.ssrn.com/Sol3/papers.cfm?abstractid=1451828.20 Ibid; also see Feng Chen, “Trade Unions and the Quadripartite Interactions in Strike Settlement inChina,” China Quarterly 201 (2010): 104.132So far, there is no concrete evidence proving that labour disputes and protests havereduced since the new labour regulations were enacted in 2008; on the contrary, there aresigns that those numbers are still rising. According to a report of South China MorningPost, the number of strikes from January to April 2014 is up by nearly a third, over thesame period in 2013. From May to June of 2010, Chinese and international mediareported at least 9 separate strikes at various enterprises, mostly foreign-owned, thatgarnered attention in China and around the world.21 These episodes of labour unrest areemerging at the same time that businesses are cutting costs, and foreign companies arerelocating, or closing operations.22Even these dramatic figures still do not reflect the entire picture of increasing labourdisputes in China. Shen underscores that there is no statistical evidence reporting the fullextent of labour dispute cases in China due to the complexity of labour disputes and theirresolution mechanisms; therefore, official statistical reports only indicate part of the story,as these are only labour disputes registered for arbitration.23 The primary data of thisstudy also shows that although most interviewees have experienced labour disputes, few21 Congressional Executive Commission on China, Report on worker actions in China, “Recent WorkerActions in China,” July 2, 2010, accessed March 28, 2015,http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=142008.22 South China Morning Post, “Labour Disputes in China Increase as the Workforce Shrinks,” publishedon Friday, April 18, 2014, accessed September 16, 2015,http://www.scmp.com/news/china/Clauseicle/1486398/labour-disputes-china-increase-workforce-shrinks.23 Shen, supra n. 2, 47.133attempted to resolve their disputes through a formal legal resolution system. Instead, mostresolve disputes by informal and traditional means. A large amount of labour disputes thatinterviewees have experienced have not been registered into any formal or informalstatistics. There is also a massive increase in the use of the formal dispute resolutionmechanisms from 2008. This may indicate an increased willingness to use the reformedlegal system.244.2.2 The Main Causes of Labour DisputesIn China, labour disputes involve almost all aspects of employment relations, such asunpaid and defaulted wages, social and unemployment insurance and welfare, dismissalsresulting from modification and termination of labour contracts, as well as a lack ofproduction, protection, and training.25 As stated by Wang Guanyun, Director ofGuangdong Labour and Employment Service and Administrative Centre, “There areseveral causes of worker disputes, but the leading reason is when enterprises don’t paysalaries.”26 In fact, the problem of wage arrears is so serious and common inlabour-intensive factories, and an article argues that it has become a “custom” in24 Ronald C. Brown, “Defusion of Labour Disputes in China: Collective Negotiations, Mediation,Arbitration, and the Courts.” China-EU Law Journal 3 (2014).25 National Bureau of Statistics of China, The Labour Statistical China Labour Statistical Yearbooks(ZhongGuo Laodong Tongji Nianjian) (Beijing: China Statistics Press, 1995-2005), in Shen, supra n. 3.26 China Labour Watch, “Poor Working Conditions Plague Guangdong,” accessed March 19, 2015,http://www.chinalabourwatch.org/en/web/Clauseicle.134Guangdong,27 while another article describes it as an “incurable disease.”28 Someexperts believe that it is necessary to criminalize wage default.29 Lee argues that ifgetting paid for one’s labour is a fundamental feature of capitalist employment relations,strictly speaking many Chinese workers are not labourers yet.30Registered labour disputes concerning job loss are far less frequent than those concerningunpaid wages; however, this problem is no less serious. Lee’s observations on laid-offworkers’ protest in the Northeast can help to explain this. According to Lee, in theNortheast, mass protests of laid-off workers’ are “protests of desperation.” They oftenchoose to take their grievances to the street, leveraging political bargaining by shaminglocal officials and disrupting traffic. Seldom do they file arbitration or engage inlitigation.31 Hence, it is safe to assume that the registered job losses are far less than theactual amounts. According to another study, less educated workers tend to take theirgrievances to the Visits and Letters Offices, local People’s Congresses, or Partyorganizations. At the same time, more educated and skilled employees often take theircases to legal arbitration.32 Therefore, the registered amount of labour disputes about joblosing is far less than the amount actually happened.27 Workers Daily, May 9 2001.28 China Labour Security News, February 19 2002.29 China Daily, “Laws needed to ensure migrant workers’ wages,” China Daily,Mar. 9, 2006, accessedJune 6, 2015, http://www.china.org.cn/english/null/160892.htm.30 Lee, supra n. 2.31 Ibid.32 Isabelle Thireau and Hua Linshan, “The Moral Universe of Aggrieved Chinese Workers: Workers’Appeals to Arbitration Committees and Letters and Visits Offices,” The China Journal 50 (July 2003): 83.1354.2.3 The Nature of Labour DisputesA large body of literature draws attention to the nature of labour disputes in China. Somestudies characterize Chinese strikes and protests as being “reactive” or “defensive.” Thisis especially true for laid-off workers in SOEs who were dramatically restructured in thelate 1990s and early 2000s.33 In 1978, SOEs accounted for 80 percent of urbanemployment, while this figure declined to less than 30 percent by 2005.34 In 1997 alone,SOEs lost about 13 million jobs, and 39 percent of urban households’ income dropped.35China workers were promised lifetime employment, but fell “from master tomendicant.”36 Chen argues that this “subsistence crises,” corruption, and a sense ofbetrayal at the dissolution of the Mao-era socialism drove SOE employees into the streets,for these “protests of desperation.”37Different from the laid-off workers of SOEs, migrant workers were never given any33 Mary E. Gallagher, Contagious Capitalism: Globalization and the Politics of Labour in China.(Princeton: Princeton University Press, 2005).34 Albert Park and Fang Cai, “The Information of the Chinese Labour Market,” in From Iron Rice Bowl toInformalization: Markets, Workers, and the State in a Changing China, eds. Sarosh Kuruvilla, Ching KwanLee, and Mary E. Gallagher (Ithaca: Cornell University Press/ILR Press, 2011), 17-35.35 John Hassard, Jackie Sheehan, Meixiang Zhou, Jane Terpstra-Tong, and Morris Jonathan, China’s StateEnterprise Reform: From Marx to the Market (New York: Routledge, 2007), 86-87, 157.36 Dorothy Solinger, “The New Crowd of the Dispossessed: The Shift of the Urban Proletariat from Masterto Mendicant,” in State and Society in 21 Century China: Crisis, Contention and Legitimating, eds. PeterHays Cries and Stanley Rosen (New York: Routledge Curzon, 2004), 50-66.37 Lee, supra n. 2.136promises, but rather suffered from “institutional discrimination.” 38 They are particularlyvulnerable to abuse,39 and are the main victims of serious labour-rights violations.40Although migrant workers resort to wildcat strikes, they adopt legal procedures moreoften than SOE workers.41 Elfstrom and Kuruvilla highlight that the protests of migrantsare also reactive, as a demand that the minimums of an existing system be upheld.42 Leeexplores the nature of labour protests by migrant workers in the Southeast as “protestsagainst discrimination.”43The nature of labour disputes in China also varies by region, by different managerialregimes, and by their own networks and connections.44 Su and He highlight that localauthorities always maintain a close relationship with employers, and often take their sidein labour disputes in many regions in China.45 Cooke notes that labour disputes areexcessively high in foreign-invested enterprises.46 Lee and Sargeson state that workers38 Ibid39 Shen, supra n. 3, 13-16, 25-1840 Anita Chan, China’s Workers under Assault: the Exploitation of Labour in a Globalizing Economy(Armonk, N.Y.: M.E. Sharpe, 2001).41 Jenny Chan, “Chinese Women Workers Organize in the Export Zones,” New Labour Forum 15.1 (2006):19; Aaron Halegua, “Getting Paid: Processing the Labour Disputes of China’s Migrant Workers,” BerkeleyJournal of International Law 26.1 (2008): 254; Eli Friedman and Ching Kwan Lee, “Remaking the Worldof Chinese Labour: A 30-Year Retrospective,” British journal of Industrial Relations 48.3 (2008): 507.42 Manfred Elfstrom and Sarosh Kuruvilla, “The Changing Nature of Labour Unrest in China,” ILR Review(April 2014): 453.43 Lee, supra n. 2.44 Elizabeth J. Perry, Challenging the Mandate of Heaven: Social Protest and State Power in China,(Armonk, NY: M. E. Sharpe, 2002).45 Yang Su and Xin He, “Street as Courtroom: State Accommodation of Social Protest in China,” Law andSociety Review 44.1 (2010): 157.46 Fang Lee Cooke, “The Changing Dynamics of Employment Relations in China: An Evaluation of the137are normally divided by recruitment networks based on hometown ties.47 Pun and Smithexplain that workers are divided by dormitory regimes, which put them out of reach of“geographically rooted norms” and “localized practices.”48Chen argues that in labour protests in China workers are essentially spontaneous andleaderless, characterized by narrow and enterprise-specific claims. He highlights thatsuch protests come and go, and can hardly establish an organizational basis for the pursuitof workers’ long-term interests.49 Lee also highlights that the main features of Chineseworkers’ protests are decentralization and cellular activism.50 Elfstrom and Kuruvillacontend that Chinese workers have been striking offensively for more money, betterworking conditions, and more respect from employers since 2008. They believe that theChinese workers have more power as a result of economic and political opportunities,including a growing labour shortage, new labour laws, and new media openness.51Rising Level of Labour Disputes,” Journal of Industrial Relations 50(1) (2008): 111.47 Ching Kwan Lee, Gender and the South China Miracle- Two Worlds of Factory Women (Berkeley:University of California Press, 1998); Sally Sargeson, Reworking China’s Proletariat (New York: St.MClausein’s, 1999).48 Ngai Pun and Chris Smith, “Putting Transnational Labour Process in Its Place: The Dormitory LabourRegime in Post-Socialist China,” Work, Employment and Society 21.1 (2007): 27.49 Feng Chen, “Subsistence Crises, Managerial Corruption and Labour Protests in China,” The ChinaJournal 44 (2000): 41.50 Lee, supra n. 2.51 Elfstrom and Kuruvilla, supra n. 42.1384.2.4 Organized Strikes and Growing Labour ShortageThe strikes in recent years suggest a shift in the nature of labour protest in China. Forinstance, from May 17th to June 6th 2010, 1,910 workers for the Honda Company, in theFoshan branch, engaged in a 21-days strike, asking for a wage increase, better workingconditions, and a more representative union. This strike ended with a 24 percent of wageincrease and some improvements to working conditions. During this process, managersand the local trade union threatened to fire the strike leaders, hire new workers, offeredseveral plans of salary increase, and asked for help from the local authorities. None ofthese tactics worked. Workers did not give up until they were satisfied with thenegotiation result.52 The most striking feature of the Honda strike is that it was anorganized collective action, which indicates an awakening of class consciousness amongthe Chinese working class.53 Most of the 1,910 workers are so-called “post-80s” or“post-90s.” They used cell phone messages and a QQ group to communicate and organizethe strike.54 The possibilities of information technology, the Internet, and mass media areeye-openers for the new generation.55 It is easier for them to obtain information fromoutside world, which is very different from past situation, where older generation migrant52 Chinahrd Net, “Our Workers are Powerful: a Review at Honda Strike,” accessed on April 28, 2015,http://www2.chinahrd.net/Authorcolumn/subject.aspx?typeid=newsandid=6562dd15-1a28-4795-a1a9-ecff0b7b4bea.53 Jieping Zhang and Yixin Zhu, “Labour Movement in China Requires Independent Trade Unions,” AsiaWeek 24.23 (2010), accessed September 26, 2015, http://gb.udn.com/gb/blog.udn.com/yensunny/4125202.54 Finance, “Deep Analyze the Strike in Honda Foshan Branch,” June 1st, 2010, accessed September 26,2015, http://finance.591hx.com/Clauseicle/2010-06-01/0000057894s.shtml.55 Zhang and Zhu, supra n. 53.139workers were isolated in factories, and barely had connection to the outside.56 What ismore important, the Honda strike in Foshan did not simply come and go; on the contrary,it directly led to an additional two strikes in other Honda branches. Moreover, it suddenlyand unexpectedly turned into a symbol of this nation’s struggle with income inequality,rising inflation, and soaring property prices.57 More recently, in January 2012, more than2,000 workers at the state-owned Pangang Group Chengdu Steel and Vanadium Companystruck, demanding a raise, more stable contracts, and the dismissal of “lazy, redundantpersonnel” (managers).58 As stated by foreign observers, “After years of being pushed towork 12-hour days, six days a week on monotonous low-wage assembly line tasks,China‘s workers are starting to push back.”59Besides these aggressive labour protests, increasing numbers of Chinese workers adoptthe milder strategy to “push back,” voting with their feet. The Pearl River Delta region,where most of the labour-intensive manufacturing industries are located, started toexperience migrant labour shortage by the early of 2000s.60 The labour shortage56 Chan, supra n. 40; Liren Shen, Chinese Migrant Workers (Zhongguo Nongmingong) (Beijing,Democracy & Construction Press, 2005).57 Congressional Executive Commission on China, supra n. 20.58 China Labour Watch, Chengdu Steel Factory Workers Strike for More Pay,May 10 2012, accessedOctober 12, 2015, http://www.chinalabourwatch.org/news/new-410.html.59 Congressional Executive Commission on China, supra n. 20.60 David Barboza, “Labour Shortage in China May Lead to Trade Shift,” New York Times,April 3 2006,accessed September 26, 2015,http://www.nytimes.com/2006/04/03/business/031abor.html?pagewanted=all.140continued, and spread to other areas in later years, although enterprises raised wages.61Much literature explores the reasons for labour shortage in China. Bai asserts that theshortage is not a real shortage, but a shortage of “young, female, and skilled migrantworkers.” Many elder, male, and unskilled workers cannot find jobs.62 Liu believes thatthe labour shortage was caused by increasing rural residents’ income, from strongeconomic growth, and favourable government policies on agriculture. He also argues thatnew generation migrant workers are better educated and more modern-thinking than theirparents, and are less tolerant of harsh working conditions and low pay.63 Chan believesthat the labour shortage is because migrant workers find that working in cities isunpleasant, and thus choose to stay in rural areas.64 Wang also suggests that since the2010s, increasing rural workers have chosen to stay closer to their hometowns.65The growing labour shortage is often considered a main cause of increasing labourdisputes in recent years. Clarke and Pringle argue that workers’ capacity to strike has61 Olivia Chung, “China Labour Shortage Spreads,” Asia Times Online, October 22, 2011, accessedSeptember 26, 2015, http://www.atimes.com/atimes/ChinaBusiness/MA29CbO1.html.62 Nansheng Bai and Hongyuan Song. Return, or stay in cities? Research on Chinese migrant workers’returning to rural areas (Huixiang, haishi jincheng? Zhongguo nongcun waichu laodongli huiliu yanjiu)(Beijing: China Finance Economic Press, 2002).63 Liu Shinan, “All Hail China’s New Job-Seekers,” China Daily, February 27, 2008, accessed September24, 2015, http://news.xinhuanet.com/english/2008-02/27/content_7676883.htm.64 Anita Chan, “Labour Standards and Human Rights: the Case of Chinese Workers under MarketSocialism,” Human Rights Quarterly 20.4 (1998): 886.65 Zhuoqiong Wang, “More Workers Staying near Home,” China Daily,May 2, 2012, accessed October 10,2015, http://www.chinadaily.com.cn/china/2012-04/28/content15166329.htm.141been significantly increased as labour shortages have spread.66 Gallagher also links theincrease in labour bargaining power directly to the worker shortage, arguing that theseshortages are a function of three issues: the decline in the working population as aconsequence of the one-child policy; policy changes in agriculture, including sharpdecrease in taxes in rural areas and increases in rural infrastructure; and institutionaldiscrimination against migrants.674.2.5 The Labour Dispute Resolution SystemThe formal labour disputes resolution system in China includes “one mediation, onearbitration, two trials.” According to Labour Law of 1994,68 the procedure for dealingwith a labour dispute is as follows: 1) enterprise mediation committee; 2) tripartiteconsultation, including workers, Labour Bureau and trade unions; 3) labour arbitration; 4)court. Labour arbitration is compulsory before a case is brought to a court.69 Someliterature challenges that such general and abstract rules were insufficient in view of therapid economic development and increasingly sophisticated labour disputes in China.70The formal labour disputes resolution system in China remains inefficient and ineffective,66 Simon Clarke and Tim Pringle, “Can Party-Led Trade Unions Represent Their Members?”Post-Communist Economies 21.1 (2009): 85.67 Mary E. Gallagher, “WeAre Not Machines, Teen Spirit on China’s Shopfloor,” China Beat, January 29,2014, accessed September 26, 2015, http://www.thechinabeat.org/?p=2538.68 Labour Law of People’s Republic of China (1994),http://www.gov.cn/banshi/2005-05/25/content_905.htm.69 Ibid, Clause 77-83.70 Yun Zhao, “China’s New Labour Dispute Resolution Law: a Catalyst for the Establishment ofHarmonious Labour Relationship?” Comparative Labour Law and Policy Journal 30:2 (2009): 409.14271 especially for migrant workers who have gradually become a majority of the China’slabour force.In this formal dispute resolution system, the Labour Mediation Commissions used to bethe most important body to resolve labour disputes in the pre-reform era; however, theyhave been greatly devalued since the market economic reform has changed theemployment relationship in China.72 The Labour Arbitration Committees (LACs) aresupposed to have autonomy from the Labour Bureau, however this seldom occurs insociety. Many professionals, from professors to lawyers, may serve as “part-time”arbitrators; however, Labour Bureau officials alone are able to serve as “full-timearbitrators.”73 As one LAC official in Beijing stated, panels have three arbitrators only to“give the appearance of justice.”74 Another notable disadvantage of this labour resolutionsystem is the inconsistency of the manner in which labour arbitration and litigation areapplied; in turn, this influences the efficacy of the entire arbitration system. An essentialduty of labour litigation is to reevaluate arbitration awards, and this is a waste ofarbitration resources.75 On occasions when the committee rules that workers becompensated, these employees may never receive their payments. The Labour Bureau, infact, does not have any authority to force employers to pay. Then workers have to once71 Hwang, Kyung-Jin, and Kan Wang. Labour Dispute Arbitration in China: Perspectives of theArbitrators. Employee Relations 37 (5): 2015: 582.72 Zhao, supra n. 70.73 Rules on Organization of Labour Dispute Arbitration Committees,http://www.mohrss.gov.cn/gkml/xxgk/201407/t20140717_136057.htm. Clause 13.74 Halegua, supra n. 41.75 Zhao, supra n. 70.143again put forth a grievance to enact compulsory enforcement.76Going to court is always a costly and time-consuming process.77 A report produced bythe Beijing Migrant Workers Legal Aid Station reported that the process took an averageof 11 months.78 Shenzhen’s Labour Bureau revealed that it took from 11 to 20 months togo through labour arbitration and two trials in 2001.79 Another report in Beijing shows aminimum cost of formal procedures is 920 yuan.80 Therefore, many workers, especiallymigrant workers, feel that it is not worth going through the legal formal resolutionssystem. As stated by Wei Wei, the founder of a NGO focusing on aiding migrant workers,“once it enters that stage, the worker has already lost.”81 Moreover, Chinese courtsnormally have poor capability of enforcing judgments. Hence, even after arbitration andtwo trials, workers often are left with a slip of paper and no money.8276 Mary E. Gallagher, “Use the Law as Your Weapon!: Institutional Change and Legal Mobilization inChina,” in Engaging the Law in China: State, Society, Possibilities for Justice, eds. Neil J. Diamant,Stanley B. Lubman, and Kevin J. O’Brien (Stanford.: Stanford University Press, 2005).77 Shen, supra n. 3.78 Beijing Migrant Workers Legal Aid Station, Report on Cases Involving Migrant Workers’ UnpaidWages (Nongmingong qianxin anjian yanjiu baogao) 2.3 (October 2006), accessed October 12, 2015,http://www.zgnmg.org/zhi/dybg/bg002_1.htm.79 Virginia Harper Ho, Labour Dispute Resolution in China: Implications for Labour Rights and LegalReform (Regents of the University of California, 2003).80 Tong Lihua and Xiao Weidong, Beijing Youth Legal Aid and Research Center, Investigative Report onthe Rights Protection Costs of Chinese Migrant Workers (Zhongguo nongmingong weiquan chengbendiaocha baogao) 4.2 (Sept. 2005).81 Wang Wentao and Deng Jing, “The Words of a Courageous Group of Migrant Workers: How High can‘Little Bird’ Fly? (Yongwei jincheng dagong qunti daiyan “Xiao Xiao Niao” neng fei duo gao?),” XinhuaNet, January 12, 2006, accessed November 20, 2015, http://news.xinhuanet.com/focus/2006-01/12/content_4037149_2.htm.82 Halegua, supra n. 41.144The new Labour Dispute Mediation and Arbitration Law of 2008 do not essentially shiftthe “one mediation, one arbitration, two trials” structure, but it makes some importantchanges that could benefit workers. For instance, the new law prolongs the time span toinitiate a complaint from two months days to one year.83 It also provides shorterarbitration acceptance time, and required the arbitral to render an award within 45 days.84The new law makes arbitral awards legally effective for several categories of cases,including unpaid wages.85 Workers could apply to the court for a payment order with themediation agreement in diverse cases, including payment in wage arrears, medical careexpenses for occupational injury, or compensation.86 This is a significant amelioration tothe previous system, and helps employees to save a great deal of money and time to gothrough the litigation process.87 It shows legislators’ intention to balance the powerbetween workers and employers.88 In addition, there are more improvements to theformal labour disputes resolution system. For instance, the arbitral tribunal may award aninitial settlement to portions of a case where facts have been ascertained, andsubsequently determine a final judgment to augment the settlement.89 This helps tosafeguard workers’ basic ability to live. 90 In many cases, according to the new law, the83 Labour Dispute Mediation and Arbitration Law, Clause 27.84 Ibid, Clause 43.85 Ibid, Clause 47.86 Ibid, Clause 16.87 Ibid, Clause 48.88 Halegua, supra n. 41.89 Labour Dispute Mediation and Arbitration Law, Clause 43.90 Zhao, supra n. 70.145labour arbitration fee could be waved,91 and the new law clearly relieves workers fromburden of proof.92Some literature argues that the labour disputes in China “diffuse” in different ways,including strikes, collective bargaining, consultation, mediations, arbitrations, court, etc..For instance, Brown argues that China is moving forward to defuse the diffused labordispute activities. New regulations have been issued to improve on the elimination,diminution, or settlement of labor rights disputes by creating increasingly sophisticatedchannels. 93 Some literature explores that the formal legal system of labour disputeresolution in China does not provide effective protections on workers. For instance,Hwang challenges that the formal legal system endeavors to promote the regime’scapacity to rule over labour relations, rather than establish an impartial platform. Heargues that the recent reform excluded arbitrational independence because of the concernsabout reducing the Party’s arbitrary power. The arbitrators have to manoeuvre betweenthe different political economic interests, above safeguarding labour rights. 94Much literature explores the importance of labour mediation. For instance, Zhuang91 Labour Dispute Mediation and Arbitration Law, Clause 53.92 Labour Dispute Mediation and Arbitration Law, Clause 6.93 Ronald C. Brown, “Defusion of Labour Disputes in China: Collective Negotiations, Mediation,Arbitration, and the Courts.” China-EU Law Journal 3 (2014).94 Hwang, Kyung-Jin, and Kan Wang. Labour Dispute Arbitration in China: Perspectives of theArbitrators. Employee Relations 37 (5): 2015: 582.146highlights that the past few years have witnessed the revival of mediation as a chiefmethod of labour dispute settlement in China. The central government and localauthorities have reinvigorated the use of mediation in order to control social conflicts andmaintain stability, as mediation can better serve their policy priorities and bureaucraticinterests. Zhuang argues that the extensive employment of mediation by local authoritieshas chipped away at the role of legal procedures in settling labour disputes.95 Neal alsoargues that the “mediation” component is designed to operate at the enterprise level, andaims to prevent disputes from intervening outside the enterprise.96 Halegua also arguesthat informal mediation is the most effective means of dispute resolution for migrantworkers.97 Shen agrees that informal mediation institutions are drawn from bothhistorical and cultural background. A common Chinese saying among villagers warns,“One case in court, a lifelong enemy ahead”; mediation does not necessarily destroy therelationship between employers and workers, because it is based on persuasion anddialogue, not confrontation and animosity.98 Chen also points out that mediation providesa better forum where the law is not clear, and mediation is often expected to provide abetter outcome for workers than litigation or arbitration.99 According to Huang,95 Zhuang, Wenjia, and Chen, Feng. "Mediate First": The Revival of Mediation in Labour DisputeResolution in China. The China Quarterly 222 2015: 380.96 Alan C. Neal. “Implementing ILO Fundamental Labour Rights in China: A Sensitive Meeting of Formand Substance?” in Ulla, Liukkunen, and Chen, Yifeng. Fundamental Labour Rights in China - LegalImplementation and Cultural Logic. Volume 49, New York: Springer, 2016.97 Halegua, supra n. 41.98 Shen, supra n. 3, 94-105.99 Feng Chen, “Legal Mobilization by Trade Unions: The Case of Shanghai,” The China Journal 52.52(2004): 27.147mediation in China is “more about morality, rather than law;” “about harmony, ratherthan justice;” “about compromising and forgiving, rather than forbidding andpunishment.” Huang argues that such mediation is a persistent distinctive aspect ofChina’s legal system.100 In recent years, some NGOs and individuals have emerged tohelp workers’, especially migrant workers’ rights by informal mediation, such as LittleBird.101 They are more willing and more flexible to help migrant workers, and hence theyare more effective than formal mediation organizations. For instance, in 2004, Little Birdrecovered over 15 million yuan for 1,269 migrant workers.1024.3 Migrant Construction Workers’ Legal CultureRegarding Labour DisputesAlthough a lot of literature has explored labour disputes in China, less attention paid tomigrant workers’ legal culture with regard to labour dispute and related legal system inChina. There has been even less attention on migrant construction workers’ legal culture.Based on interviews of 34 migrant construction workers from Shuangfeng Town, thisstudy explores the major causes and the nature of migrant construction workers’ labour100 Philip C. Huang, “Morality and Law in China, Past and Present,”Modern China 41 (2015): 8.101 Aaron Halegua, “Reforming the People’s Mediation System in Urban China,” Hong Kong Law Journal35 (2005): 724.102 Wang Wentao and Deng Jing, The Words of a Courageous Group of Migrant Workers: How High can“Little Bird” Fly? (Yongwei jincheng dagong qunti daiyan “Xiao Xiao Niao” neng fei duo gao?) XinhuaNet), January 12, 2006, accessed March 19 2015, http://news.xinhuanet.com/focus/2006-01/12/content_4037149_2.htm.148disputes, and their main resolution means. Migrant construction workers’ ideas, opinions,as well as attitudes with regard to labour dispute and the dispute resolution system inChina are illustrated through their experiences in different cities across China.4.3.1 Major Cause of Labour Disputes – Wage DefaultAmong the 34 interviewees, only two claimed they never had any labour dispute. One isChutian, born in 1953; the other is Guohui, born in 1964. Of the remaining 32interviewees, almost all of their labour disputes regard wage default, no matter how oldthey are, their education background, or the cities in which they work. Most intervieweeshave been involved in wage arrears more than once. For migrant construction workers, inmost cases, “labour dispute” simply means wage default. In fact, they never expect otherkinds of labour rights. As they consistently explained, “We only want money, nothingelse.” As Liang said, “We never ask for any other things, better food, accommodation, orinsurance. And they would not give us even if we asked. We only work for money. Aslong as the bosses pay us by the end of the year, it is good enough.”103 Renhai also toldme, “We work for money, only for money. If we can get cash by the end of the year, weare very satisfied.” 104Unfortunately, the construction industry is the hardest hit area of wage arrears in China.103 Juan Li, (December 28, 2014), Personal Interview.104 Juan Li, (January 16, 2015), Personal Interview.149Thanks to the “efficient” subcontracting system, there are many chances for migrantworkers at the bottom tier of this industry chain to lose their salaries. In a typicalconstruction project, owner, developer, and general contractor all transfer their financialburden and risks to subcontractors. The subcontractors at higher tier also transfer part, oreven all, of their burden to the subcontractors below them. By the end, laboursubcontractors and migrant workers have to walk at the edge of a cliff. Moreover, in theconstruction industry, contractors and subcontractors are often paid based on the process,and workers normally get their wages after the project is completed, or even by the end ofthat lunar year. The long-term payment and multi-tier subcontracting system greatlyincreases the risk and amount of wage defaults. If one of the subcontractors ran awaywith money or refused to pay to the subcontractor at lower tier, which often happened,the migrant workers ended up with no wages. Hence, when I asked my intervieweeswhether they had been involved in wage defaults, they always responded, “Yes, of course!Who hasn’t?”What is worse, it was very difficult for migrant workers to recover their arrear wages,especially before 2003. The formal legal procedures remained ineffective, expensive, andtime-consuming for migrant workers; while governments preferred business over workers,and did not have the motivation or interest in helping workers, especially before 2003.105Hence, when migrant workers turned to government agencies for help, many officials105 Chen, supra n. 1; White, supra n. 1.150tended to push them out, and claimed that it was not their duties to deal with labourdisputes. In most cases, migrant workers could do nothing but leave. As a result, migrantconstruction workers choose to stay in their autonomous system built by Xiaogan peoplein the construction industry, because it was much easier to get their money back in theirhometown.Among all the frustrating stories of wage defaults before 2003, there were only a fewsuccessful cases. For instance, Renhai told me of his experience of wage default in 2002in Beijing. When the project was finished, the big boss refused to pay, and drove themigrant workers and their little boss out of the site. They had to sleep in the street. Manyworkers left, and only five of them stayed to ask for money, including Renhai. They triedeverything, called 110, appealed to the Labour Bureau, went to the Beijing Government,and went to the Public Security Bureau. But nothing worked. Many times, they were noteven allowed to enter the government agencies, and could only stay in the gatehouse.None of the agencies provided help, and most claimed that it was not their duty to dealwith labour disputes. The migrant workers decided to stick to the Public Security Bureau.They stayed there day after night, and refused to leave. They claimed they would appealto a higher level of government if the Public Security Bureau would not help them. Bythe end, the policemen agreed to help. They called the contractor and required him to payoff the wages. These five migrant workers were finally paid in full amount after morethan one month persistent arguing and appealing in Beijing. As Renhai said, “We could151not swallow the grievance and anger. It is our money, earned by sweat and blood! I mustget it back!”1064.3.2 Much Less Wage Default Since 2003Nearly all interviewees agreed that wage defaults had happened much less in recent years,especially in 2010s, and they believed that favourable policy since 2003 was the mainreason for these changes. For instance, Xinghua, born in 1970, a tilling master, said,“Nowadays, our workers’ wages are seldom defaulted. In the past, it always happened.Since the policy is better. In the past, there is no place that we could turn to (if there was awage default), but now we can turn to Labour Bureau.”107 Aiguo also said, “Now it is OKto delay payment for bosses, but it is not OK to default our workers’ wages, because wecan accuse them to Labour Bureau.”108 Many of them mentioned Labour Bureau;however, only a few have actually contacted it, and most just overheard about it. Forinstance, Aiguo explained, “I heard that the Labour Bureau would call the bosses andrequire them to pay off the wages. But I’ve never been there.”109For many respondents, 2003 was the beginning of these changes. For instance, Xiaozhanpointed out that, in that year, Premier Zhu Rongji helped a construction migrant worker106 Juan Li, (January 16, 2015), Personal Interview.107 Juan Li, (January 4, 2015), Personal Interview.108 Juan Li, (February 1, 2015), Personal Interview.109 Ibid.152recover his unpaid wages. Subsequently, as Xiaozhan explained “Zhu Rongji [published]a new policy, prohibiting wage defaults to migrant workers.”110 In reality, Premier WenJiabao pioneered these efforts, rather than rather than Zhu Rongji, Xiaozhan recalled. InOctober 2003, Premier Wen Jiabao helped a migrant construction worker to recover hiswage arrears of 2240 yuan.111 This event was often regarded as the initiation of theWages Campaign around China from 2004 to 2007. According to Biddulph et al., sincethe late of 1990s, at both local and national levels, there had already been growingawareness of, and concern about, the increasing social disruption flowing fromexploitation and abuse of migrant workers in cities, However, prior to the WagesCampaign, Chinese regulations did little to address the issues related to wage defaults inconstruction industry. 112 The Wages Campaign was declared a success. As the chairmanof the NPC Standing Committee, Wu Bangguo, reported that in most provinces the“historical problem” of non-payment of wages to migrant workers had been “basicallyresolved.” Wu announced that by the end of 2006, the amounts of unpaid wages of RMB33 billion accumulated before 2003, had all been paid. In some areas where problemswere ongoing, Wu anticipated the problems would be resolved by mid-2008. 113 This110 Juan Li, (February 1, 2015), Personal Interview.111 Verna Yu, “Pay day at last after Premier aids a peasant; Wen Jiabao is quick to end impoverishedworker’s plight,” South China Morning Post, Oct. 29, 2003, p.6.112 Sarah Biddulph, Sean Cooney, and Ying Zhu, Rule of Law with Chinese Characteristics: The Role ofCampaigns in Lawmaking. Law & Policy, 34 (4) 2012: 373-401.113 China News Web. “Most Provinces in China Have already Fundamentally Resolved the HistoricalProblem of Delayed Payment of Wages,” March 8, 2008,http://www.chinanews.com.cn/gn/news/2008/03-08/1186062.shtm. Accessed on June 10, 2017.153Wage Campaign, as well as the related regulation and police changes, may answer thequestion why most interviewees of this study felt that there have been much less wagearrears since 2003.Some interviewees mentioned an important policy in the construction industry: depositsfor migrant workers’ wages. For instance, Guohui, a site manager, told me thatconstruction companies in Guangdong need to pay a wage deposit in advance when theycontract a project, “If you want to contract or subcontract a project, you must pay adeposit of 1 to 2 million yuan. This deposit only will be returned after the project iscompleted and all the workers’ wages are paid off.”114 He was not sure the department towhich the “deposit” should be paid, and assumed it was the Urban ConstructionAdministration Office (Chengshi Jianshe Guanli Bangongshi)115 Guohui also mentionedthat subcontractors needed to pay a deposit to general contractors, as well. Hongliangthought this wage deposit should be paid to the Labour Bureau,116 while Jinyun believedthat it were banks that held the wage-deposits.1174.3.3 Wage-Deposit System in the construction industryAlthough respondents were unclear as to which premier helped migrant workers to114 Juan Li, (December 23, 2014), Personal Interview.115 城市建设管理办公室.116 Juan Li, (2014, December 28), Personal Interview.117 Juan Li, (January 20, 2015), Personal Interview.154recover wages, or to which department wage deposits should be paid, they did perceivethe changes and trends correctly. As explored in Chapter 2, the regime started to changepolicies and regulations regarding migrant workers from the early 2000s. Subsequently,in 2006, an important policy was issued, Some Opinions of the State Council on Solvingthe Issues of Migrant Workers (hereafter, Opinions).118 Clause 6 established awage-guarantee system to protect migrant workers’ interests. It demanded governmentagencies strictly regulate employers’ payment behaviours, and ensured that migrantworkers were paid fully, and on time. Employers with histories of wage arrears wouldnow be required to deposit money in advance, in a special wage-account. Thiswage-account must be supervised and managed, and cannot be used for other purposes.The Opinions also underscored that payment arrears in government projects must beresolved effectively. If funds were not sufficient in advance, construction permits wouldnot be granted. The regulation also punished employers who default on migrant workers’wages. The punishments could range from suspending businesses, to reducing orcancelling construction qualifications, or revoking a business license.119The Opinions is one of the most important policies regarding migrant workers in China. Itintroduced a series of measures to increase migrant workers’ income, to enhance theiroccupational skills, to raise the proportion of being covered by social insurance, and to118 Some Opinions of the State Council on Solving the Issues of Migrant Workers, accessed December 23,2016, http://www.gov.cn/zhuanti/2015-06/13/content_2878968.htm.119 Ibid, Clause 6155protect their labour rights.120 Many local governments published policies regarding theimplementation of the Opinions. For instance, in 2009, the Guangzhou governmentenacted the Administration on Wage Payment in the Construction Industry inGuangzhou.121 It explicitly requires that construction companies open wage-depositaccounts before starting projects. The owner or the developer must transfer wage deposit,which is 2 percent of the total contract price, into the wage-deposit account. The wagedeposit should be from 100 thousand yuan to 3 million yuan. This policy in Guangzhouunderscores that if the wage-deposit is not fully paid, a construction permit will not begranted.122 It explicitly points out three conditions under which the wage-deposit shouldbe used to pay workers, including: 1) the construction enterprise has financial difficulties,and cannot pay workers; 2) the project is completed or stopped, but workers’ wages havenot been paid fully; or, 3) other necessary circumstances that have been approved by theHuman Resources and Social Security Department.123In 2014, the State Council issued another important policy regarding migrant workers,Some Opinions of the State Council on Further Improving the Service for MigrantWorkers.124 Only by comparing the titles of these two policies of 2006 and 2014, we can120 Some Opinions of the State Council on Further Improving the Service for Migrant Workers, accessedDecember 24, 2016, available at: http://www.gov.cn/zhengce/content/2014-09/30/content_9105.htm.121 Administration on Wage Payment in the Construction Industry in Guangzhou, accessed December 24,2016, http://sfzb.gzlo.gov.cn/sfzb/file.do?fileId=E91163A788CF4113B5B8459D20D478B7.122 Ibid, Clause 5.123 Ibid, Clause 10.124 Some Opinions of the State Council on Further Improving the Service for Migrant Workers, retrieved on156get a sense of the different attitudes of the regime. Clause 8 of the 2014 Opinions furtherrequires enhancing the wage-guarantee system in the construction industry. It obliges theestablishment of a wage-deposit system in the construction industry, and buildingwages-emergency-fund system in some areas. It also requires improving andimplementing a general-contractor-responsibility system, which obliges the generalcontractor to be responsible for wages of all migrant workers involved in a project. Itdemands a joint system of labour-security-administration and criminal justice, andrequires local governments to take full responsibility to resolve wage default problems. Itobligates the promotion of a real-name system of debit card for wage payment. Mostimportantly, it clearly points out the agencies in charge of implementing Clause 8,including the Ministry of Human Resources and Social Security, the Ministry of PublicSecurity, the Ministry of Housing and Urban Construction, the People’s Bank, the HighCourt, and the All-China Federation of Trade Unions.125Many local governments amended their policies on the wage-deposit system based on theOpinions of 2014. For instance, Guangzhou amended Administration on Wage Paymentin the Construction Industry in Guangzhou in 2014.126 This explicitly outlines the processof using wage-deposits: when workers’ wages are defaulted upon, the relevantDecember 24, 2016, available at: http://www.gov.cn/zhengce/content/2014-09/30/content_9105.htm.125 Ibid, Clause 8.126 Administration on Wage Payment in the Construction Industry in Guangzhou, amended in 2014,accessed December 24, 2016,http://www.gzns.gov.cn/longxue/bmfw_1/ldjy/201504/t20150422_161094.html.157administrative department will instruct the general contractor and bank to use thewage-deposit. The contractor should pay workers’ wages under the supervision of relatedadministrative department. The stipulation also reduces the maximum amount of wagedeposit from 3 million to 2 million yuan.127 The “related administrative department”varies in different regions, but refers most often to the Labour Bureau in mostcircumstances.It is doubtless that these policies at all levels in China since the beginning of 2000s haveestablished a more effective system for protecting migrant construction workers’ paymentrights. These policies have been more effectively implemented in developed areas, suchas Beijing and Guangzhou; they have gradually become influential in less developedareas, such as Hubei and Northeast. They have significantly improved the conditions ofwage arrears in the construction industry.4.3.4 Industrial Injury CompensationDue to the lack of basic security protections for migrant workers, work-related injurieshappen frequently in the construction industry. Before the formal interview process began,I suspected that work-related injury compensation would be an important cause of labourdisputes. However, among the 34 interviewees, only one has experienced occupational127 Ibid.158injury, although there were several second-hand stories from other interviewees. However,all of these occupational injuries ended peacefully, and did not lead to any dispute,though the compensation and allowance of occupational injury is low and unfair.In theory, the compensation of occupational injury in China is not bad. According toRegulations on Industrial Injury Insurance, amended in 2010,128 workers’ labour abilityshould be appraised after industrial injuries. There are ten levels of labour disabilities,with level 1 being the most severe.129 This system regulates the one-time disabilitycompensation for disability Level 1 as 27 months’ wages, Level 2 as 25 months’, Level 3as 23 months’, and Level 4 as 21 months’ wages, etc. According to the Regulations onIndustrial Injury Insurance, injured workers are also eligible for a paid monthlyallowance until they retire. The allowance for Level 1 is 90 percent of their normal wages,Level 2 is 85 percent, Level 3 is 80 percent, Level 4 is 70 percent, etc.130 This standard ofcompensation appears decent. However, when one learns about the standard ofoccupational disability in China, it becomes evident that this compensation and allowanceis far from adequate. Take disability Level 1 for example; according to the Human BodyInjury Disability Grade of 2017,131 disability Level 1 includes 14 kinds of extremesituations of disabilities, for instance, extremely severe intelligence damage; quadriplegia128 Regulations on Industrial Injury Insurance, amended in 2010, accessed December 25, 2016,http://www.gov.cn/zwgk/2010-12/24/content_1772115.htm.129 Ibid, Clause 21 and Clause 22.130 Ibid, Clause 35.131 Notice Human Body Injury Disability Grade, http://www.ft22.com/jiandingbiaozhun/6767.html.159muscle or three limb paralysis muscle strength; severe non-limb-paralysis, etc.132Since most migrant workers in the construction industry do not have labour contracts, it isalmost impossible for them to demand a continued monthly allowance. In reality, injuredworkers normally get one-time compensation, and then must return home. Consideringthe high incidence of work-related injuries and disabilities, and the low standards ofcompensation, employers in China are glad to pay the one-time compensation, andnormally require a promise from the injured worker that he will not pursue furthercompensation in future.According to the primary data, there are two ways of settling work-related injury disputes,Gongliao or Siliao.133 In Chinese, these two terms always come in pairs. Gongliao meansto settle a dispute by formal legal proceedings; Siliao means settle a dispute informallyand between two parties, or mediated by informal third party. In occupational injuries,both employers and workers are willing to “Siliao,” settling the issue themselves, as thelegal process is time consuming and complicated. Employers may be punished forsuspending a project due to the accident; therefore, they are eager to resolve the issue bypaying more money than the amount obliged by the regulations. As for workers, eventhough they go through the legal procedures, what they get by the end is often no more132 Ibid. Clause 5.1.133 Gongliao (公了), and Siliao (私了).160than what the employer offers in the first place. As such, they often agree to take thecompensation, and leave the host city immediately. Moreover, in an increasing number ofareas, construction companies are obliged to purchase accident insurance for migrantworkers; otherwise, construction permits are not granted.134 In these cases, the insurancecompanies pay medical expenses. Hence, employers and workers can easily reach aconsensus, and most occupational injuries do not transform into labour disputes.Hongliang, born in 1965, lost the first segment of his right-hand forefinger in 2013, inBeijing. It was squeezed off by a machine. His boss, Lao Xi, paid all of the medicalexpenses in advance, and for the loss of working time. Hongliang’s brother-in-law helpedhim to find a lawyer. The lawyer told Hongliang that this would be a Level 9 disability,with compensation around 40 thousand yuan. Lao Xi offered a compensation of 50thousand yuan, plus two months’ wages. Hongliang said, “I do not want to have disputewith Lao Xi, and we get along well with each other, so 50,000 is OK.”135 Hongliangstayed in Beijing for around twenty days after the accident. He said, “It was awful! Icould not eat well and lived in a dark basement. I could not take any more and chose togo back home. Lao Xi bought me the train ticket.”136 However, Hongliang did not thinkthat 50 thousand yuan was enough to compensate for his loss: “Of course it cannot134 Notice of Construction Department of Guangdong Provincial on Issuing the Guidelines forConstruction Accident Insurance in Guangdong, retrieved on December 25, 2016, available at:http://www.csai.cn/study/203541.html.135 Juan Li, (December 28, 2014), Personal Interview.136 Ibid.161compensate! I feel weak after the injury, and I was so strong before that! I cannot eveneat with chopsticks yet, but a spoon! It feels so bad!” 137 But Hongliang thought that hecould do nothing about it, because the lawyer told him that the compensation would bearound 40 thousand. In this sense, Hongliang felt a sense of powerlessness1384.3.5 The Nature of Labour Disputes in the constructionindustryThe nature of migrant construction workers’ labour disputes combines reactive andproactive, defensive and offensive tactics. Migrant workers normally take proactiveactions, before deciding to accept job offers, and act reactively after their wages havebeen defaulted upon. When a boss is a co-villager, like in most cases, migrant workers aredefensive initially, and become increasingly offensive as the issue persists.In order to reduce the possibility of wage default, workers carefully choose their bosses.All interviewees said they choose bosses based on two criteria: their financial capabilityand reputation. Thanks to modern communication, and a tradition of clan living, it isconvenient for migrant workers to know fair market prices for jobs on construction sitesin different cities. Information travels among workers from the same hometown. Allmigrant workers return to their hometown sooner or later in the twelfth lunar month, and137 Ibid.138 Ibid.162rest for the winter. Families and friends get together every day. They drink wine, smokecigarettes, and play poker and Majiang together. Naturally, they chat about their bossesand jobs.With most leaving their hometowns in March, or after the Qingming Festival, which isApril 4th or 5th, there is plenty of time to exchange information, and make clear decisionson which city they are going to work in, and the boss for which they will work in theupcoming year. Because of labour shortages in recent years, migrant construction workers,especially those with good skills, have more choices. In order to recruit employees,bosses often visit workers’ houses during Spring Festival, bringing presents and warmwords, and sometimes even paying 10 thousand or even 20 thousand yuan in advance toworkers. However, popular workers do not want to take any advance money, as they wantto carefully choose their best option.When they accept a job offer after careful consideration, their behaviour tends to be morereactive. Migrant construction workers never demand rights or benefits beyond wages.They never regard themselves as “workers,” but rather as “peasants,” and do not believethey are eligible for other “labour’ rights.” Labour contracts? Medical insurance?Weekends with payment? Pension allowance? “No, those are for the ‘formal’ workers and163urban residents, not for us,” Chutian explained.139 What is more, they accept theunwritten rule in the construction industry and their hometown that they only get paid atthe end of every lunar year. As long as the boss pays them by then, he is a good boss.Another unwritten rule is that migrant workers only ask for money from their little boss,the immediate subcontractor who recruits them, and who is always their co-villager.Whether the general contractor or subcontractor at a higher tier pays their little boss, themigrant workers do not care. They believe it is the little boss’ responsibility to ask formoney. Only when a little boss organizes them to take progressive actions to ask formoney from the “bigger boss,” will they follow; however, they regard this as a favour tothe little boss, rather than their own labour dispute. They support their little boss by manyaggressive means, such as blocking the site entrance, cutting off electricity and water onsite, demonstrating in front of the contractor’s company or even Labour Bureau, or eventhreatening to commit suicide. The purpose is to attract enough attention from localauthorities and media, in order to put pressure on the contractor and local government toresolve the problem.For instance, Zhao told me of his experience in the Northeast. There, a general contractorrefused to pay Zhao’s little boss, who was Zhao’s co-villager. As Zhao explained:Our boss asked us to stop working, to ask for money with him.139 Juan Li, (January 6, 2015), Personal Interview.164Normally it’s not our business. But this time the project is about tofinish, and our boss could not get the money yet. So we all went to thecompany with him, around fifty people, all Xiaogan workers. Weblocked the gate, and our boss went inside to talk with the company.140When asked about the dispute’s result, Zhao thought for a while, and answered, “I am notsure. We all left when the project finished, and our boss stayed there asking for money. Idon’t know the result, but the little boss paid me by the end of that year.”141Another young boy, Wei, also had an adventure in the Northeast. Once, the generalcontractor had not paid Wei’s little boss for a long time, and the little boss could not evenbuy food for the migrant workers. The little boss asked his workers to stop working,block the gate of the site, and cut off electricity and water. He asked three young boys,including Wei, to climb up to a high tower, which was tens of meters high, and threatenedthat if the contractor would not pay, the migrant workers would commit suicide. Althoughthis seems shocking, Wei shrugged, “It’s not a big deal. I would not jump anyway.”142Their aggressive actions successfully attracted attention from the media, and journalistsarrived on site in a short time. The contractor agreed to pay right away under the pressure.However, the saddest part of this story is that, after Wei and his friends climbed down ofthe tower, and the journalists left, the general contractor only paid Wei’s little boss asmall part of the arrears. As with Zhao, he did not care much about the result of the140 Juan Li, (February 5, 2015), Personal Interview.141 Ibid.142 Ibid.165dispute, and did not know whether the contractor paid his little boss later. He left the sitewhen the project finished and received his wages in full by the end of lunar year.4.3.6 Major Resolution Means – Conservative, Informal andViolentThe nature of migrant construction workers’ dispute resolution remains primarilyconservative and informal. They adopt different strategies whether dealing with labourdisputes within their autonomous system or out of it. Within their autonomous system, theambiguous identity of “migrant workers” returns to that of “peasants,” though they barelydo farm or agricultural work. In these internal situations, wage disputes defaults simplybecome personal debt disputes between two rural residents, rather than labour disputesbetween employees and employers. Workers essentially try to resolve the problem bypressuring on ethical and familial grounds. Considering that most Xiaogan migrantconstruction workers choose to work for Xiaogan bosses, ethical pleas and familyrelationships remain a major means with which to resolve labour disputes in theconstruction industry, at least in Xiaogan area.Migrant construction workers normally do not regard wage default as a “dispute” in thefirst two or three years. They still have faith that the little boss has a conscience andcapability to pay them back. They visit the boss’ houses frequently, expressing grievances;166for instance, “My daughter-in-law will have a baby in soon, and the medical fee is veryexpensive,” or “I need to take a training course for driver’s license, but I don’t have thatmoney.” In most cases, bosses will try every means possible to pay them back, anddisputes will be resolved amicably, or at least, will not turn hostile.In other cases, normally after repeated disappointments, workers lose hope, and manyturn to violence. They stay at the bosses’ houses and refuse to leave. They force the bossto pay them back, and initiate fights. I even heard stories of kidnapping, harm, andmurder.143 For instance, Yafang had a labour dispute in 2007. The little boss was hisco-villager, owed him around 3,000 yuan. It took him five years to get the money back.Every year, Yafang went to the little boss’s house asking for the money. During theSpring Festival of 2013, Yafang finally lost patience and stayed in the little boss’s house,refusing to leave. They fought with each other, and ultimately the little boss paid Yafangin full. For Yafang the reasoning to turn violent was simple: “What else can I do? My kidsneed to go to school, and I need money! He must pay me back!”144As discussed in Chapter 3, the ethic among family and clan members is surprisinglypowerful. In most cases, bosses try every means possible to pay workers’ wages on time.They stay in host cities quite late every year to ask for money from contractors; they use143 These are second-hand stories that I heard from my interviewees, but not my interviewees’ personalexperiences.144 Juan Li, (December 10, 2014), Personal Interview.167their own money to pay off wages if they have not been paid, and they even borrow tofulfill their promise. In rural China, “face” and reputation mean a lot, especially for thosewho want to run their own business in the construction industry. However, despite bestefforts, sometimes subcontractors cannot fulfill their duties. Especially since thebeginning of 2010s, due to the global economic crisis, and “anti-corruption andclean-government campaign,” the construction industry in China has been shrinking.Many projects were cut, and many developers and investors’ cash flow was cut off. Whenlosing too much, sometimes subcontractors cannot save “face” or take reputation intoconsideration.Some workers may simply give up on collecting bad debts if the amount is not significant,because they do not have time to argue, or because they do not want to argue withrelatives or good friends. However, in these cases, workers will not work for that bossagain, and will spread information about the boss to relatives and acquaintances. Forinstance, Jinyun told me his experiences of labour disputes, “The boss owed me a coupleof thousand yuan. It was not much. I have no time to argue with him all the time, and hadto let it go. But definitely, I would not work for him anymore.”145 In some cases, somebosses have to choose to flee from their hometowns, and never return. For a rural residentwho cares much about clan and family relationships, the cost is too high.145 Juan Li, (January 20, 2015), Personal Interview.168In other cases, when migrant workers have very good relationships with their little bosses,they may feel awkward to push the boss too hard. For instance, in 2007 Wei worked forhis brother’s classmate, who owed him six months’ wages, more than 20,000 yuan. Thislittle boss had a good relationship with Wei and his brother. He offered Wei asecond-hand van to balance the defaulted wages, but Wei refused. Then the little bossclaimed he gave the van to Wei’s brother; Wei’s brother insisted that he had not acceptedthe offer. Wei said with a wry smile, “We are too familiar with each other. Now it’simpossible to figure out the truth. Just let it go. He is very nice to us though. Every timewhen we need help, he shows up. How can I play hard ball with him?”146 Wei alsoshowed his understanding to his little boss, because the big boss did not pay him, and helost around 400,000 in that year. Therefore, this little boss could no longer do business inthe construction industry.In fact, political violence underlies the arrangement of Chinese history and politicalculture, and it has obtained growing academic interest in recent years. For instance,Buoye also illuminates the violent conflicts over property rights in eighteenth-century inGuangdong, as well as the nature of the legal process in the high Qing period. Buoyeexamines that, in the Pearl River delta, modern property rights were largely accepted bythe Qianlong reign (1736-95), hence the violent conflicts over property rights was much146 Juan Li, (February 5, 2015), Personal Interview.169reduced.147 This study suggests that people may resort to formal legal system whendealing with their conflicts, rather than to violence, when there established a morepredictable, fairly promptly, and less cost legal mechanism.However, Rowe examines the massive violence in Macheng county of Hubei Province,which has a reputation for routine collective violence, and which is right next to Xiaogan.Rowe suggests that the continuity of violence as a deep-rooted tradition in Macheng.Apparently, this violent side seems to be contrary to the Confucian commitment toharmony and social order. According to Rowe, in Macheng, Confucian indoctrination hadnot been prominent. The Neo-Confucian social order as an ideal type places its hope onthe maintaining of the status quo. 1484.3.7 Disorganized and Cellular Debt Dispute in HometownMany scholars have noted that the main features of Chinese workers’ protests aredecentralization and cellular activism.149 However, labour disputes in the constructionindustry are even more disorganized and individual than those in modern factories.Different from the disciplined work in production lines requiring cooperation and147 Thomas M. Buoye. Manslaughter, Markets, and Moral Economy: Violent Disputes over PropertyRights in Eighteenth Century China. Cambridge; New York;: Cambridge University Press, 2000.148 Rowe, William T. Crimson Rain: Seven Centuries of Violence in a Chinese County. Stanford, Calif:Stanford University Press, 2007.149 Lee, supra n. 2; Friedman and Lee, supra n. 41; Feng Chen, supra n. 49.170teamwork, there is barely any discipline or cooperation among plasterers. They work bythemselves, or in families. They are their own bosses. When wages are defaulted upon,migrant construction workers tend to regard it as a personal issue between two ruralresidents, rather than as a labour dispute between employer and employee. In such asituation, it is hard for migrant workers to have organized and unified labour protests.For instance, Jianguo, told me about his dispute with a subcontractor. In 2012, Huang, thesubcontractor, owed Jianguo, and 30 other migrant workers from Inner Mongolia around300,000 yuan. They waited at the construction site for around 20 days after their projectcompleted, and had to leave when it got cold. After returning to their hometown, theywent to Huang’s house nearly every day in the twelfth lunar month, but Huang avoidedthem. On New Year’s Eve, six migrant workers, including Jianguo, finally caught Huangwhen he attempted to return home under the cover of darkness. They demanded thatHuang pay their wages; Huang explained that he had no money, and would pay theworkers right away when the big boss paid him. Then some workers required Huang towrite an IOU,150 but Huang refused. They remained there for hours. As Jianguoexplained, “Some of us insisted to stay, until we got the IOU note; but others wanted toleave. So we all left by the end with nothing. You know, everyone has different ideas. Itwas the New Year Eve, some wanted to go back home to celebrate the festival, and somesaid it was useless to stay there. Anyway, it is very hard for our peasants to do anything150 IOU means “I owe you.”171together.”151 Jingming also mentioned a similar opinion when talking about hisexperiences of wage disputes: “Our peasants are really lack cohesion, you know. Wecannot do anything together. I want to go, but he does not want to. Every time, there areonly a few people show up, or sometimes only myself. It is useless that I went there all bymyself. You know, strength lies in numbers. If we could go together, it would bebetter.”152 Based on the primary data, it is safe to assume that in most circumstances,there is still a lack of working class awareness and cohesion among migrant constructionworkers, which prevents the migrant construction workers from having more organizedand unified labour protest.4.3.8 Organized Labour Protests in Host CitiesIn contrast, migrant construction workers are relatively more organized and unified whenin host cities. There, workers may organize or participate in “mass actions” in order toattract attention from media and local government. The most organized labour protest Iheard of during the fieldwork was from Xiaohua, one of the three high school graduates.Xiaohua worked in Yingkou city, Liaoning Province, in the early half of 2014. Thecontractor was a construction company from Anhui Province. It had not paid wages sinceOctober 2013, because the company had not received funds from the owner. The workersstopped working in April 2014, and asked for their wages. They appealed to the Labour151 Juan Li, (February 10, 2015), Personal Interview.152 Juan Li, (February 13, 2015), Personal Interview.172Bureau, and waited for a month, but both the owner and contractor were in financial crisis,and were incapable of paying. The migrant workers independently organized a parade ofaround 500 migrant workers. Xiaohua was one of the leaders of that protest.The group demonstrated in front of the Yingkou government. Policemen attempted tostop them, saying, “This is not the government’s duty, and you should go to the LabourBureau or Court!” The workers refused to back off, and Xiaohua challenged thepolicemen saying, “If the City Government Office cannot resolve our problem, we willgo to the Municipal Party Committee; if they cannot help us either, and we will go toappeal to the Central Government in Beijing! We are not afraid. And we can always callChina National Radio.”153 Ultimately, this parade forced the Government Office to sendrepresentatives to talk with the workers, and promise they would take control of thesituation. Xiaohua was one of the workers’ representatives. By the end, the governmentrequired the owner to pay the contractor; the Procuratorate froze the money as soon as itreached the contractor’s account. The Labour Bureau took charge of wage payment. Allworkers were paid in full. It was very effective and efficient.I was impressed by Xiaohua’s experience. This organized labour protest in Yingkou mayindicate an awakening of class-consciousness in the construction industry, which lackscooperation and discipline. The assumption under which I had operated was that such153 Juan Li, (February 8, 2015), Personal Interview.173organized and large-scale labour protest was rare. However, Xiao responded, “It happensa lot! You seldom heard about it because you take the interviews in Hubei! Hubei is theworst! If our case happened in Hubei, it is impossible to be resolved.”154 He furtherexplained that the government agencies in Hubei Province always try to push migrantworkers out when there is a labour dispute, and claim it is not their duty. Xiaohua becameexcited, striking the table, and questioned, “Then what are [the officials’] duties? As agovernment official, your duty is supposed to serve the people! Otherwise, you’d bettergo back home and plant potatoes!155 Your salary is from our taxes, it is our money withsweat and blood!” 156It is also interesting to find that migrant workers do not always uphold the unwritten rulewithin their autonomous systems that they only ask for wages from their immediatesubcontractor, rather than the big boss. When in their hometown, they stick to thisunwritten rule and only ask for money from the little boss who is their co-villager. Theyclaim that, because it is the little boss who recruits them, it is the little boss’ responsibilityto pay their wages, no matter whether the little boss has been paid. But when migrantworkers have to ask for wages from a big boss under unusual circumstances, theyapproach the matter differently. For instance, Yafang told me of his experience in 2012, inInner Mongolia. His little boss, who was not his co-villager, ran off with money, and left154 Ibid.155 Xiaohua said the old Chinese saying, “当官不为民做主,不如回家种红薯.”156 Juan Li, (February 8, 2015), Personal Interview.174workers unpaid. All of the workers went to the general contractor’s company asking forwages. The contractor said that he had already paid the little boss, and could not pay tothe workers again. But the migrant workers refused to leave, claiming, “We have notreceived a penny. We worked in this site, and you are the boss of this site, so you shouldpay us. Otherwise, we would accuse you to the Labour Bureau.” They also declared, “Wedon’t care what happened between you and the little boss. We only want our salary! Weworked hard, and we deserve it!”157 Before Yafang and his workmates appealed to theLabour Bureau, the contractor paid them in full. In reality, the migrant workers are quitesophisticated and practical, and tend to choose the best strategy according to the situation.It is safe to assume that the reason they adhere to this unwritten rule in their hometown isnot because of their loyalty to the autonomous system, but rather because of the closerelationship between them and their immediate subcontractor. It would be much easier toput pressure on the little boss who directly recruits them, and easier to get their moneyback.4.3.9 Aggressive and Violent Rural YouthIt is notable that the rural youth in Shuangfeng Town are more aggressive and violentthan the older generation migrant workers. Among the ten interviewees born after 1980,five of them mentioned they were punished or even dismissed from middle school157 Juan Li, (December 10, 2014), Personal Interview.175because of fighting. Three of them, all born after 1990, gave me a similar astonishinganswer when replying the question of whether law was important in their lives. They saidlaw was important sometimes, because if there was no law, they might hurt someonebadly or even kill others in fighting. It is because of law they knew they had to controlthemselves, and could not beat others too hard.In many cases, it is impossible for migrant workers to settle labour disputes peacefullyand quietly. Only when they make trouble for the bosses or local governments is theirgrievance heard, and acknowledged by mass media, and authorities, and hence resolvedeffectively. The rural youth learn believe that violence and confrontation is the best wayto resolve problems. As Zhen explained, “We are not afraid of making trouble. In fact, ifthere is a trouble, the bigger the better. As the old saying goes, ‘nothing I have nothing Ifear.’A person with bare feet is fearless!”158Even when young migrant workers use conservative means of ethical pleas on theirbosses, they act differently from their fathers. For instance, Zhen, born in 1990, told mewhat he would do in the coming Spring Festival of 2015. In Zhen’s case, the little bosswas Zhen’s uncle, and the big boss was also their co-villager. Zhen’s uncle owed 7,000yuan to Zhen in 2010, because the big boss, who was also a subcontractor, in this case,had not paid him. Zhen went to his uncle’s house during every Spring Festival since 2010,158 Juan Li, (December 29, 2014), Personal Interview.176but his uncle was really incapable of paying. During the Spring Festival of 2014, Zhenbroke the unwritten rule in his hometown and directly went to the big boss, asking formoney:The boss said that he had no money, and I told him not to be a boss then!Don’t be a boss if you cannot pay a couple of thousand yuan. I abusedhim, with all kinds of bad words. Shame on him! I will go to his housewith my classmates this year, and we will stay there until he pays me. Wewill eat in their bowls, and sleep in their beds. This is quite effective! I didthis before, helping my friend to ask for his money.159Although the rural youth, such as Zhen, seem quite confrontational, they are, in fact,more practical and sophisticated than they appear. They take violent actions as strategy toattract attention from the authorities. They clearly know what they can and cannot do.Violence is a carefully chosen strategy. For instance, Zhen said that he was not afraid forthe boss to call 110; in fact, this is was what he wanted. As Zhen explained, “If thepolicemen come, they would require him to pay me, too. We know how to do this, and wewon’t beat him badly.” He would not, however, call the police himself, as, “The policewould say that they are not in charge of wage disputes, and refuse to come. But if wefight, and he calls 110, the police must come.”160 This is partly a consequence of China’spolitical system, and the Party regime’s deep fear of public unrest. It also could beconsidered as an interaction between political and legal strategies for resolving conflictsin modern China.159 Ibid.160 Ibid.1774.3.10 Going to Court Not Worth itObviously, arbitration and legal trials are not options for migrant construction workers toresolve labour disputes, no matter whether in host cities or hometowns. When I askedinterviewees why they did not go to court or arbitrators to resolve disputes, they providedtwo general answers, first, “He did not refuse to pay me. He is just out of moneycurrently;” or second, “It is not worth [it].”For instance, a stone factory owed Zhiliang around 80,000 yuan in 2012. Zhiliang went tothe owner’s house every Spring Festival, asking for his money. Every year, the boss saida lot of nice words and made promises, and gave him some money. By the end of 2014,the owner still owed Zhiliang around 50,000 yuan. Zhiliang told me he was reallyworried about this debt. Then I asked him whether he had considered taking legal actionto resolve this problem, such as going to arbitrator or court with the IOU notes. Zhiliangthought for a while, and answered, “It is not the right time. They did not refuse to pay me.They only said they also had lots of difficulties, because the construction company didnot pay them either. It is true. He owed a lot of people, not only me. We are all at thebottom of the construction industry. The developers owe the construction companies, andthe companies owe him. What can he do? And the owner is my friend, and I cannot be178too tough to him. He, of course, would pay me, and it just takes a little longer.”161Another example is Xinghua who was owed 3,000 yuan by a relative in 1998. Xinghuawent to this little boss’ house every year, but could not find him. This little boss owedmany people in his hometown, and chose to disappear. Xinghua was very angry because,“he is so indifferent, and looks like nothing happened.” When I asked Xinghua whetherhe was willing to take the IOU to the arbitrator or court, he replied without hesitation,“No. It is not worthy, only for a couple of thousand yuan! One should do anythingfollowing his conscience. It depends whether he has conscience. Actually, I can find himif I really want to. I know his mother-in-law’s house, and he would go there every SpringFestival. But you know, only for such a small amount of money, how could I keepwatching him every day? It all depends on whether he has a conscious or not.”162 Just asall other interviewees, both Zhiliang and Xinghua avoided settling their problems byformal legal procedures. It is true that the formal labour dispute system in China istime-consuming and expensive, but the migrant workers never attempt to try it. Theysimply do not consider the formal legal procedure as an option. The traditional culture ofvaluing harmony, and despising litigation, prevent the migrant workers from pursuinglawsuits.161 Juan Li, (December 29, 2014), Personal Interview.162 Juan Li, (January 4, 2015), Personal Interview.1794.3.11 Local Government is the Major Debtor in Some RegionsMost interviewees believe that the best way, if is not the only way, to get wages is to gethelp from government. For instance, Xiaohua explained, “When a problem cannot beresolved, we must make it bigger, and attract enough attention from the government.Otherwise, the problem will never be resolved.”163 This opinion makes a lot of sense inChina, at least in the construction industry. In many cases, government agencies caneasily settle wage default disputes, if they are willing to. Sometimes it is only a matter ofmaking several calls. However, when the debtor is the government agency itself, thisbecomes very awkward.Some Opinions of the State Council on Solving the Issues of Migrant Workers in 2006also clearly outlined that payment arrears in government projects must be resolvedeffectively. If funds are not sufficient in advance, construction permits should not begranted.164 Clearly, this was a serious problem that needed to be specifically addressed inthis framework policy. Unfortunately, eight years after this important policy was enacted,some local government agencies in less developed areas remain major debtors inconstruction projects, and hence are still a major cause of wage defaults in some areas.Hongxing, a site manager, told me his personal experiences in Shanxi Province, where163 Juan Li, (February 8, 2015), Personal Interview.164 Some Opinions of the State Council on Solving the Issues of Migrant Workers, accessed December 23,2016, http://www.gov.cn/zhuanti/2015-06/13/content_2878968.htm, Clause 6.180payment arrears were still frequent when the interview was undertaken. For instance,Hongxing participated in a project constructing a new office building for the PublicSecurity Bureau of Changting County from 2011 to 2013. The project cost 69 millionyuan in total, but the Public Security Bureau had only paid 18 million yuan, to date.165According to Hongxing, this project was way beyond its original budget, as the ownerwanted to improve the design and size several times during the constructing process.Hongxing and his little boss went to the Public Security Bureau many times asking formoney, but the officials bluntly claimed that Changting County was in financialdifficulties, and had no money. Hongxing said, “We could say nothing but left. It is thePublic Security Bureau! How can we do?” He was angry and challenged, “If they areshort of funds, why built such a fancy building?”166According to Hongxing, this kind of dispute happens frequently, and working withgovernment is very hard. Often, when a project relates to government agencies, migrantworkers’ wages are defaulted upon. For instance, the Financial Bureau in ChangtingCounty was another debtor of Hongxing’s little boss, and the contractor above them.Hongxing believed it was safer to work with private developers, because of thewage-deposit system. In Hongxing’s words, “Now the government administrates thisindustry strictly and well, but the problem is the government itself. They are the major165 Changting County is a fake name, and numbers in this case are also changed a little bit.166 Juan Li, (February 5, 2015), Personal Interview.181owners in this industry. It would be better in those big cities, but in those small cities, youcan do nothing about it.”1674.3.12 Disappointed at Their Hometown – HubeiI had a hypothesis before conducting the fieldwork that migrant workers would havemore power when dealing with labour disputes near to their hometowns, and would be ina weaker position when in host cities. However, the primary data suggests that theopposite is true. Many interviewees mentioned that they have more labour disputes intheir hometown – Hubei. Many interviewees expressed disappointment toward theirhometown. They used strong words to complain about the bureaucracy of localgovernments, and criticized the unsatisfying legal and economic environment in Hubei.Many of them had unpleasant experiences in their contacts with local authorities. Quite afew mentioned that authorities in other regions, especially in South China, were muchmore efficient than authorities in Hubei; the enterprises in other regions were more“formal” than local companies. In addition, people in other regions have higher “quality”then people of Hubei. Some, especially older generation migrant workers born in the1950s and 1960s, had faith in the central government, and believed that China’s majorproblem was that local governments did not follow through on polices formulated by thecentral government. Although they had lots of complaints, they showed a deep167 Ibid.182understanding of the CPC and central government, and said it was very difficult to governsuch a huge country. It is safe to assume that these unpleasant experiences and feelings intheir hometown influence their legal culture.For instance, Kai never had labour disputes outside of Hubei Province, but run into one inhis hometown. He worked in a stone factory in Xiaochang County168 in early 2014. Thesalary was 4,000 yuan per month, but the boss had not paid Kai from the beginning;instead, he wrote IOU notes to every worker, every month. After wage arrears of sixmonths, some migrant workers fought back. They smashed the owner’s office andcomplained to the local Labour Bureau, but these did not work. The owner said he had nomoney, which was true, and would pay the workers as soon as he could. Kai was notinvolved in these aggressive actions, because “I am very familiar with the owner, so I feelembarrassed to quarrel with him or to accuse him. The owner often calls me, and asks meto wait a while with a nice tone. What can I say?”169Jingming had three labour disputes from 2012 to 2014, all of which happened in Hubei.In two cases, the subcontractors ran away with money, and left workers unpaid. Jingmingand his workmates appealed to many authorities at different levels, including the LabourBureau, the Water Conservancy Bureau, the Public Security Bureau, and court, but none168 Xiaochang County is a county near to Shuangfeng Town.169 Juan Li, (January 18, 2015), Personal Interview.183of these efforts worked. In 2013, Jingming went to the local Labour Bureau, with twoworkmates, asking for help. The official told them that if they could find thesubcontractor, he would help to settle the dispute. Jingming complained to me, “If I couldget him (the subcontractor), I would beat him up, and force him to pay me back! I wouldsettle the problem all by myself! Why I need you (the official of Labour Bureau)? It isbuck-passing! He did not want to take any responsibility!” He also noted that, “Thoseofficials were really good at talking. How can we argue with them? And it is so difficultto even see any official. There are security guards and doorkeepers in their buildings.They won’t let us in in many cases.” By the end, Jingming concluded, “It is useless to goto those authorities!”170 Their unpleasant experiences in their hometown greatlycontribute to their negative attitude of the formal labour dispute resolution system.4.4 SummaryAs for migrant construction workers in China, in most cases, labour disputes simply referto wage defaults, and they never expect any other kind of labour rights. Unfortunately,thanks to the “efficient” multi-tier subcontracting system, the construction industry is thehardest-hit area in China with respect to wage arrears. There are too many situationswhere migrant workers at the bottom of the industry ladder are losing their salaries. Whatis worse, there is a well-accepted “custom” in Xiaogan area that workers normally are170 Juan Li, (February 13, 2015), Personal Interview.184paid when the project is completed, or at the end of the lunar year. The long-termpayment schedule significantly increases the risk and amount of wage default in theconstruction industry.There is clear consensus among interviewees that wage defaults have occurred far lessfrequently in recent years. Most interviewees believe the major reason for this change isimproved policies. Since the beginning of 2000s, the central and local governments ofChina have tried to improve administration over the construction industry, and to betterprotect migrant workers’ interests. It is doubtless that many causes, including boomingeconomy, increased income in rural areas, preferred policies in agricultural section,growing labour shortage, new labour policies and regulations, as well as new mediaopenness, all work together to make these changes in the construction industry.In theory, the new Labour Dispute Mediation and Arbitration Law in China establish amore efficient and effective dispute resolution system, compared with older regulations;however, in reality, the formal legal procedure remains ineffective and unfriendly tomigrant workers. Hence, arbitration and legal trials are not an option for migrantconstruction workers, no matter whether in host cities or hometowns. They do notconsider the formal legal procedure as an option. The traditional culture of valuingharmony, and despising litigation, prevent the migrant workers from pursuing lawsuits.Hence, migrant construction workers’ dispute resolution primarily remains conservative185and informal, and sometimes quite violent.The nature of labour disputes in the construction industry combines reactive andproactive, defensive and offensive strategies. Although migrant construction workersendure terrible working conditions, and seldom demand rights beyond wages, they are infact more aggressive and offensive than they were in previous decades. Workers normallytake proactive actions by carefully selecting bosses. They adopt different strategies andmeans when dealing with labour disputes in their hometown than in host cites. In theirhometown, wage defaults simply become personal debt disputes between two ruralresidents, rather than labour disputes between employees and employers. Hence thedispute is disorganized and individual. Migrant workers often try to resolve the problemusing ethical pleas and appeals to their familial relationship. However when bosses refuseto pay after several attempts at negotiation, migrant workers would become increasinglyviolent.In host cities, and when the boss is an “outsider,” migrant workers can be quite offensivefrom the beginning. They are relatively more organized and unified, and may choosemore “modern” means in order to attract attention from the local government, includingcomplaining to the Labour Bureau, calling 110, and parading or demonstrating in front ofconstruction companies and local government. It is interesting to find that migrantworkers do not always adhere to the unwritten rule of their autonomous system when in186host cities. They may choose to go directly to the general constructor asking for wages, ifnecessary. They are aware of the social, political and legal changes in China. In fact, theyare quite sophisticated and practical, and always choose the best strategy to resolve theirdisputes according to the situation. It is notable that the rural youth in Shuangfeng Townare more aggressive and violent than the older generation migrant workers. They learnfrom their experiences, and believe that violence and confrontation is the best way toresolve problems. They use violent action as strategy to attract attention from authorities.The primary data illustrates that the ethic among family and clan members, as well as thepressure of establishing a good reputation in the construction industry, is surprisinglypowerful, and much more effective than law or contracts. In most cases, bosses try everymeans possible to pay workers’ wages on time, even taking the risk of borrowing fromusurers. This is likely the most important reason why migrant construction workers inXiaogan choose to stay in their autonomous system, and only work for Xiaogan bosses.However, sometimes even subcontractors’ best efforts leave them unable to fulfill theirduties, and they may choose to disappear, and never return to their homes. As for ruralresidents, who care much about their clan and family relationship, the cost is too high.Most interviewees believe that the best way, if it is not the only way, to get their wagesback, is to get help from the government. Due to various economic contexts and culturaldifferences in different areas of China, migrant construction workers have varied187experiences in different cities. Problems are relatively easier to settle in the big andcoastal cities; for inland and less developed areas, it is more difficult, and sometimes, thelocal authorities are even the debtors. Most interviewees remain unsatisfied with the legalenvironment in their hometown, Hubei Province. Compared with the governmentagencies in Beijing and Guangdong, authorities in Hubei seem less effective and morebureaucratic with regard to labour disputes. It is safe to assume that the lack ofsatisfaction with the legal environment in Hubei, and unpleasant experiences in theirhometown, also is one of the main reasons that migrant construction workers do not havefaith in law and the formal legal system in China. Although they are unsatisfied with thelocal governments in Hubei, complaining to the governmental agencies still remains thethird option when dealing with their labour disputes, right after ethical pleas and violence.188Chapter 5 Trade Unions5.1 IntroductionThere is a consensus among scholars that labour disputes result from a lack of clearregulations on power granted to management over employment relations, while tradeunions cannot offer genuine representation and collective bargaining power. 1 Chinesetrade unions are often criticized for their weakness in representing workers’ rights, andtheir dependency on the regime and management. Due to the different historicalnarratives, Chinese trade unions are fundamentally different from Westerns unions. Theyhave double institutional identities, as both a regime-management apparatus and a labourorganization, and the former identity is the priority.2 They seldom represent workers’rights, but rather act mainly as a state instrument and management branch. Hence, fromthe point of view of the international trade union community, the continued subordinationof Chinese trade unions to Communist Party of China (CPC) disqualifies them frombeing considered as bona fide trade unions.31 Aaron Halegua, “Getting Paid: Processing the Labour Disputes of China’s Migrant Workers,” BerkeleyJournal of International Law 26.1 (2008): 254; Jie Shen, Labour Disputes and Their Resolution in China(Oxford: Chandos, 2007); Daniel Z. Ding and Malcolm Warner, “Re-inventing China’s Industrial Relationsat Enterprise Level: An Empirical Field-Study in Four Major Cities,” Industrial Relations Journal30.3(1990): 243.2 Feng Chen, “Between the State and Labour: the Conflict of Chinese Trade Unions’ Double Identity inMarket Reform,” The China Quarterly 176 (2003): 1006.3 Ibid; Simon Clarke and Tim Pringle, “Can Party-Led Trade Unions Represent Their Members?”Post-Communist Economies 21.1 (March 2009): 85.189A trade union is always a product of its history, and the Chinese trade unions are nodifferent.4 Their current functions and importance can only be understood in the contextand development of the broader Chinese labour movement. All China Federation of TradeUnions (ACFTU), as the only legal trade union in China, was established in 1925, andwas directly supervised by the CPC from the beginning.5 The ACFTU’s present status,self-image, and power reflect their role in these revolutions, regressions, and reversals.6In the past three decades, industrial relations in China have changed significantly.Accordingly, Chinese trade unions find their double identities becoming increasinglycontradictory.7 They are in a dilemma between the dependency on the Party-state andmanagement, on one hand, and representing members’ rights, on the other. As such,Chinese trade unions have to re-position themselves in the dramatic transition process,while their historical development will continue to influence their future roles in thechanges still sweeping China.8 This chapter explores Chinese trade unions’ structures and4 Malcolm Warner, “Labour-Management Relations in the People’s Republic of China: the Role of theTrade Unions,” International Journal of Human Resource Management 91.2 (1991): 205; Yunchao Zhu,“Workers, Unions and the State: Migrant Workers in China’s Labour-intensive Foreign Enterprises,”Development and Change 35.5 (2004): 1011.5 CPC’s United Front Work Department, accessed December 29, 2016,https://www.thechinastory.org/yearbooks/yearbook-2014/forum-begging-to-differ/the-united-front-in-an-age-of-shared-destiny/; Tony Saich, The Origins of the First United front in China: The Role of Sneevliet(alias maring) (New York; Leiden, 1990).6 Wingyue Leung, “Smashing the Iron Rice-Pot: Workers and Unions in China’s Market Socialism,” AsiaMonitor Resource Center, Hong Kong (1988).7 Chen, supra n. 2.8 Wingyue Leung, supra n. 6.190functions in a planned economy, their dilemma in market economic reform, and theirchanges and reforms in the transition era based on literature review. It also demonstratesmigrant construction workers’ ideas, opinions, and attitudes with regard to trade unions,based on primary data collected from the interviews with all the participants of this study.5.2 BackgroundAccording to Sidney Webb and Beatrice Webb, a trade union “is a continuous associationof wage earners for the purpose of maintaining or improving the conditions of theiremployment.”9 The Australian Bureau of Statistics states that a trade union is “anorganization consisting predominantly of employees, the principal activities of whichinclude the negotiation of rates of pay and conditions of employment for its members.”10Compared with these well accepted definitions of a trade union, Chinese trade unionsclearly do not fall within this category. Their current functions and framework can onlybe understood in the context of labour movements in China.11 The ACFTU was set up in1925, and directly supervised by the CPC from the very beginning. It has evolved in theimmense social upheavals that shaped modern China. ACFTU greatly contributed to theformation of the People’s Republic of China (PRC).12 Its historical development related9 Sidney Webb and Beatrice Webb, History of Trade Unionism (New York: A.M. Kelley, 1965), 1.10 Australian Bureau of Statistics, “Trade Union Census,” accessed January 21 2016,http://www.abs.gov.au/AUSSTATS/abs@.nsf/0/9FCBBF538897395ACA2570EC001A6CED?OpenDocument.11 Warner, supra n. 4.12 Ibid; Saich, supra n. 5.191closely to the development of CPC. This still influences Chinese Unionism in moderntimes.135.2.1 Chinese Trade Unions’ Structure and RolesIn its relations with workers, the command economy was supported by a set of bodies ledby CPC, and the ACFTU was one of them. According to Trade Union Law of PRC,14 theACFTU’s main purpose is to assist the government to reach its objectives in terms ofeconomic development;15 subsequently, working on behalf of employees in disputes is aless significant purpose. Traditionally, in socialist regimes, unions’ mandates are to be a“conveyor belt,” linking employees to the regime.16 Similarly, the ACFTU has amonopoly in working on behalf of Chinese employees; all other organizations have beenprohibited. The role of Chinese trade unions remains “a quasi-governmental socialorganization with multiple functions.” 17However, the ACFTU has its own institutional agenda, aiming to increase its impactswhile fulfilling its formal duty of representing workers in order to minimize conflict13 Wingyue Leung, supra n. 6.14 Trade Union Law of PRC (2001),http://www.npc.gov.cn/wxzl/gongbao/2001-10/29/content_5277078.htm.15 Ibid, Clause 7.16 Thomas F. Remington and Xiaowen Cui, “The Impact of the 2008 Labour Contract Law on LabourDisputes in China,” Journal of East Asian Studies 15 (2015): 271.17 Ronald C. Brown, Understanding Labour and Employment Law in China (Cambridge: CambridgeUniversity Press, 2010), 44.192between workers and the regime.18 A former president of the ACFTU, Ni Zhifu,articulated the significance of the ACFTU being autonomous from the state.19 Twice inthe latter half of the 20th century, the Chinese trade unions attempted to expend theirautonomy.20 However, the primary effort led to its own destruction at the time of theCultural Revolution; and the second attempt ended by the end of 1980s.21 Then thegovernment became harsher, which negated any potential for trade unions to becomeautonomous, and it forced the ACFTU to return to the government’s control.22According to Trade Unions Law of PRC, trade unions in China are defined as “workingclass mass organizations led by CPC and formed voluntarily by workers and staffmembers.”23 This definition clearly indicates the Chinese trade unions’ doubleinstitutional identity as both Party-state apparatus and labour organization. The slogan ofACFTU which can be found on the front page of its website also evidently shows thisdual institutional identity: “Absolute Allegiance to the Party’s Cause; Serve Workers and18 Remington and Cui, supra n. 16.19 Xinhua News, July 25, 1989, cited in Sek Hong Ng and Malcolm Warner, China’s Trade Unions andManagement (London: St. Martin’s Press and New York: Macmillan Press, 1998), 55.20 Tim Pringle and Simon Clarke, The Challenge of Transition: Trade Unions in Russia, China andVietnam (New York: Palgrave Macmillan, 2011), 86-87.21 Thomas F. Remington and Xiaowen Cui, “The Impact of the 2008 Labour Contract Law on LabourDisputes in China,” Journal of East Asian Studies 15 (2015): 271.22 Bill Taylor, Kai Chang, and Qi Li, Industrial Relations in China (Cheltenham: Edward Elgar. 2003),Chapter II; Gordon White, “Chinese Trade Unions in the Transition from Socialism: towards Corporatismor Civil Society?” British Journal of Industrial Relations 34:3 (1996): 433; Jeanne L. Wilson, “The PolishLesson: China and Poland 1989-1990,” Studies in Comparative Communism 23. 3-4 (1990): 259.23 Trade Unions Law of the PRC (2001), available at:http://www.people.com.cn/GB/shizheng/8198/29614/29642/2071559.html, Clause 2.193People Wholeheartedly.”24 Before the market economic reform, there is no obviousconflict between the Chinese unions’ double identities. Their role of speaking for workerswas “absorbed” by the paternalist state.25 It is often claimed that, in socialist countries,workers and the state have “common interests,” and the Communist Party isrepresentative of the working class. Workers are not considered to have “independent”interests.26 In socialist countries, trade unions nominally represent the interests of theentire working class, under the leadership of the Communist Party, and as such were anintegral part of the Party-state apparatus.27The Socialist planned-economy system supports this claim. From 1949 to the late 1980s,SOEs dominated industrial production in China. The SOEs guarantee lifetimeemployment, and provide welfare from “cradle to grave” for urban industrial employees.This is the so-called “iron rice-bowl” (tie fan wan28) system.29 Under this system,Chinese trade unions need not “fight for” their members’ rights and welfare. Instead, theyserve as a bureaucratic part of the government-controlled industrial system.30 According24 ACFTU, accessed March 24 2016, http://www.acftu.org/template/10041/index.jsp.25 Chen, supra n. 2.26 Warner, supra n. 4; Daniel Z Ding, Keith Goodall and Malcolm Warner, “The Impact of EconomicReform on the Role of Trade Unions in Chinese Enterprises,” The International Journal of HumanResource Management 13.3 (2002): 431.27 Clarke and Pringle, supra n. 3.28 铁饭碗..29 Hong Yung Lee, “Xiagang, the Chinese Style of Laying-Off Workers,” Asian Survey 40:6 (2000): 914.30 Malcolm Warner, “Chinese Trade Unions: Structure and Function in a Decade of Economic Reform:1979–1989,” in Organized Labour in the Asia-Pacific Region: a Comparative Study of Trade Unionism inNine Countries, ed. Stephen Frenkel (Ithaca, NY: ILR Press. 1993), 49.194to Clarke and Pringle, communist unions had no legitimate role in the relationshipbetween workers and employers because the stipulations of employment were set by theregime. Rather, their role was to support labour obedience, stimulate ambition, andprovide benefits.31Overall, the function of the Chinese unions is to harmonize the relationship betweenmembers and their employers rather than fighting for the rights of the members.32According to the Trade Unions Law of 2001, the ACFTU has a series of 19 tasks forwhich it is responsible. These include: 1) to organize and educate workers to exercisetheir democratic rights to play the role as masters of the country, in accordance withConstitution and the law;33 2) to assist the people’s government, and safeguard thepeople's democratic dictatorship, led by the working class and based on the alliance ofworkers and peasants;34 3) to protect the legitimate rights and interests of workers, whilemaintaining the overall interests of the nation and all the people;35 4) to coordinatelabour relations through equal consultation and a collective contract system;36 5) toorganize workers to participate in democratic decision-making and management, insupervision the staff and workers' Congress, in accordance with the law;37 6) to closely31 Clarke and Pringle, supra n. 332 Clarke and Pringle, supra n. 3.33 Trade Unions Law of the PRC (2001), Clause 5.34 Ibid, Clause 5.35 Ibid, Clause 6.36 Ibid, Clause 6.37 Ibid, Clause 6.195contact with staff and workers, listen to and reflect their views and demands, care aboutthem, and help them to solve difficulties;38 7) to mobilize and organize workers toactively participate in economic development, and to strive to complete production tasks,and to educate workers to constantly improve their ideological, moral, technics anddiscipline;39 8) to seek redress and to protect the rights of workers, if the enterprise orinstitution violates the system of Workers’ Congress and other democratic managementsystems;40 9) to help and guide the staff and workers to sign labour contracts with theenterprises and the institutions, and to negotiate with the enterprise and institutions onbehalf of the staff and workers;41 10) to help workers with labour dispute resolutionprocedures;42 11) to require a re-decision when the trade union believes that theenterprise or institution has illegally terminated a labour contract with staff or a worker;4312) to require the enterprise or institution to stop and correct violations on workers’ rights,and to appeal to local government if the enterprise or institution refuse to change;44 13)to provide opinions on working conditions, safety, and health facilities;45 14) to providesuggestions on risky operations, potential hazards, and accidents;46 15) to investigateviolations of workers’ rights, and occupational injuries and hazards, with the relevant38 Ibid, Clause 6.39 Ibid, Clause 7.40 Ibid, Clause 19.41 Ibid, Clause 20.42 Ibid, Clause 20.43 Ibid, Clause 21.44 Ibid, Clause 22.45 Ibid, Clause 23.46 Ibid, Clause 24.196organizations offering assistance;47 16) to participate in labour dispute mediation andarbitration;48 17) to provide legal assistance for staff and workers;49 18) to assistenterprises and institutions to take care of the collective welfare of workers and staffmembers;50 19) to be involved in the policy-making process regarding policies related toimportant rights and workers’ and staff interest, including employment, wages, industrysecurity, social insurance, etc.51 It is clear that most of these functions, when workers andthe state have common interests, have been carried out, or at least are attempted to becarried out.The structure of Chinese trade unions has remained approximately the same since 1949,although there has been a significant growth of membership as urbanization has drivenlarge amount of migrant workers into cities.52 The ACFTU has been organized alongvertical lines, and retains a parallel structure of “center-province-municipal- -district”level, reflecting the center-province-municipal-district level of government administration(See Figure 5.1).53 Each union branch is double-led by its upper union and the PartySecretary at the same level.5447 Ibid, Clause 25, and Clause 26.48 Ibid, Clause 28.49 Ibid, Clause 29.50 Ibid, Clause 30.51 Ibid, Clause 33.52 Warner, supra n. 4; Zhu, supra n. 4.53 Ibid.54 ACFTU, http://www.acftu.org/; Warner, supra n. 29.197Figure 5.1: Reconstruction of the ACFTU after 194955Within SOEs, trade unions play a dependent role. The Party Secretary plays a central rolein SOEs, and it is responsible to “guarantee and supervise” policy implementation.56 TheCPC is concerned about the ACFTU’s organizational capabilities, and worries that tradeunions might become focus of workers’ mobilization. Thus, the Party regime establishesanother institution for representing workers at each enterprise, the Workers’ Congress,and the trade union acts as the Workers’ Congress executive committee.57 The Workers’Congress is considered as the nominal basic form of democratic management. According55 Warner, supra n. 4.56 Andrew G. Walder, “Factory and Manager in an Era of Reform,” The China Quarterly 118 (June 1989):242.57 Clarke and Pringle, supra n. 20, 86-87.198to the Regulation of Workers’ Congress of the State-Owned Enterprises, the Workers’Congress is meant to be the organization through which labourers can manage enterprisesdemocratically. 58 Clause 4 of the Regulation states that the Workers’ Congress is directlyled by the Party Committee at enterprise level, and is in charge of executing the Party’spolicy, handling the interests among the state, enterprises, and labourers.59 Clause 4 alsoclaims that the Workers’ Congress shall actively support the management and fulfillingthe production command.60 According to Corporate Law in China, the corporate boardshall listen to the Workers’ Congress’ advice on major reform and management issues.61However, the Worker’ Congress’s legal power is always made a mere figurehead by themanagement.62 In this context, the trade unions’ main duty at a micro level is to help theParty Secretary and management to encourage workers to boost productivity.63 (SeeFigure 5.2)Figure 5.2: A Simplified Diagram of the Decision-Making Structure of SOE in China 6458 Regulation of Workers’Congress of the State-Owned Enterprises (1986),http://fgk.chinalaw.gov.cn/article/xzfg/198107/19810700267984.shtml.59 Ibid, Clause 4.60 Ibid, Clause 6.61 Corporate Law of PRC,http://www.scio.gov.cn/xwfbh/xwbfbh/wqfbh/2014/20140826/xgzc31415/Document/1378620/1378620.htm, Clause 18.62 Cherrie Jiuhua Zhu, Human Resource Management in China, Past, Current and Future HR Practices inthe Industrial Sector (Oxon, RoutledgeCurzon, 2005).63 Chen, supra n. 2.64 John S. Henley and Mee Kau Nya, “Introducing Market Forces into Managerial Decision-Making in199Notes: ------> indicates hierarchical command relationship<----->indicates reciprocal or consultative relationship- - - -> indicates links of a weak or unclear nature5.2.2 Chinese Trade Unions’ DilemmaFrom the late 1980s, the market economic reform has fundamentally changed industrialrelations in China. The evolution from a planned economy into a market economy hasaltered the milieu wherein trade unions function.65 The “iron rice-bowl” system has beenbroken; as a result, tens of millions of workers have been terminated from SOEs. Theunitary state-dominated ownership system was broken by diversified ownership forms,including foreign, joint venture and private.66 Furthermore, the workforce is increasinglyChinese Industrial Enterprises,” Journal of Management Studies 23.6 (November 1986): 635.65 Clarke and Pringle, supra n. 3.66 Yongshun Cai, State and Laid-off Workers in Reform China. The Silence and Collective Action of the200diverse. Millions of migrant workers have moved from less developed provinces into themore developed coastal areas. “Contract” workers and “temporary” workers have becomethe majority of workforce, instead of “permanent” workers who represented the majoritybefore the reform.67 In theory, this transition removed the enterprise from direct controlfrom the government, and hence trade unions ceased to be regime agent at least in theworkplace.68 Hence, Chinese trade unions find their double identities becomingincreasingly contradictory, especially in the labour retrenchment in SOEs.69The economic reform has ended harmonious employment relations, and workers havebecome more vulnerable and marginalized than at any time since 1949.70 Labourdisputes have been on sharp rise, and industrial conflicts have become more violent andcollective.71 Some scholars even call China “an emerging epicenter of world labourunrest,”72 or “undeniably the epicenter of global labour unrest.”73 The surge in labourdisputes is considered by the regime in China as the “biggest threat to social stability”Retrenched (Oxon: Routledge, 2006); Zhu, supra n. 61.67 Zhu, supra n. 61.68 Clarke and Pringle, supra n. 3.69 Chen, supra n. 2.70 Ching Kwan Lee, Against the Law: Labour Protests in China’s Rustbelt and Sunbelt (University ofCalifornia Press, 2007); Ching Kwan Lee and Yonghong Zhang, “The Power of Instability: TheMicrofoundations of Bargained Authoritarianism in China,” American Journal of Sociology 118.6 (2013):1475.71 Shen, supra n. 1; Lee, ibid.72 Beverly J. Silver and Lu Zhang, “China as an Emerging Epicenter of World Labour Unrest,” China andTransformation of Global Capitalism, ed. in Ho-Fung Huang (New York: RoutledgeCurzon, 2004), 50-66.73 Eli Friedman, “China in Revolt,” Jacobin, 7/8, January 29th, 2014, accessed October 12, 2015,http://jacobinmag.com/2012/08/china-in-revolt/.201and its own rule.74 Lack of genuine representation from trade unions is often regarded asone of the main courses of dramatically growing labour protests.75In the labour protests, the conflicts between workers and the state have put the ACFTU inthe middle of its two identities. Should the Chinese trade unions continue their dependentrole as a regime and management apparatus, or should they seek more autonomy torepresent their members’ rights and interests, following the Western labour unions? Itseems they can do neither. If Chinese trade unions continually act only as an integral partof the bureaucracy, and seldom protect members’ rights and interests, workers will loseinterest. Membership was unimportant for the ACFTU before economic reform, becausein SOEs permanent workers automatically became union members, and membership feeswere deducted from salaries;76 however, in the market economy, membership hasbecome the foundation of the unions’ existence. On the other hand, the CPC also expectsthe ACFTU to assume more responsibilities around establishing a harmonious society,and in releasing the tension between workers and the regime.77 If the ACFTU cannothelp to achieve this goal, it might also fall from grace with the Party-state.Likewise, the union officials often found themselves in a vague situation. Since the local74 Shen, supra n. 1; Remington and Cui, supra n. 16.75 Halegua, supra n. 1; Shen, supra n. 1; Remington and Cui, supra n. 21.76 Warner, supra n. 29, 49.77 Warner, supra n. 4.202party committee appoints primary trade union cadres, unions are indebted to the localadministration.78 At the enterprise level, those who are running the union always relyupon administration for their wages, other forms of remuneration, and even theiremployment. Especially in independent companies, the higher-level union jobs areamalgamated with administrative positions.79 It is also common in private companies forthe spouse of a firm’s owner to be the chairperson of the trade union.80 Hence, workersoften regard the union as an organization that benefits the employer more so than itbenefits the employees.81Unions also aim to maintain or increase their institutional power. For instance, theyattempt to expand the number of union branches in private companies and participating intripartite collective bargaining commissions. As Lu et al explain, enterprises with tradeunion branches have greater efficiency, and more workers are protected by labourcontracts and social insurance benefits.82 Unions are tightly associated with thegovernment, and employers also use trade unions as channels of communication withlocal authorities. This intermediate position helps to understand that unions are hesitant toassert their autonomy and become confrontational with employers to benefit the78 Pringle and Clarke, supra n. 20, 35-3979 Tim Pringle, Trade Unions in China: The Challenge of Labour Unrest (London: Routledge, 2011), 110.80 Mingwei Liu and Chunyun Li, “The Puzzle of Strong Union Effects on Workers in China,” RutgersUniversity School of Management and Labour Relations (2014).81 Remington and Cui, supra n. 21.82 Yi Lu, Zhigang Tao, and Yijiang Wang, “Union Effects on Performance and Employment Relations:Evidence from China,” China Economic Review 21 (2010): 202-210203employees.83If the Chinese trade unions choose to actually represent and protect their members’collective rights, even against the Party-state when necessary, they might find themselvesin big trouble. Currently, most labour protests in China possess three common features:spontaneous, unorganized, and economic-demand oriented.84 The last thing the CPCwants to see is organized labour movements, given the working-class-revolutionaryhistory of CPC itself. The regime believes that this will prevent economic growth andweaken China’s competitiveness in the global market. What is worse, this poses a seriousthreat both to social and political stability, and even the ruling role of CPC.85 Therefore,labour issues are quite sensitive in China. The CPC carefully avoids using terms like“fire,” “unemployment,” or “labour unrest,” instead calling them “Xia Gang” (step downfrom positions), “Dai Ye” (waiting for jobs), and “Ji Ti Shang Fang” (collectiveappeals).86 Given this scenario, how could the ACFTU represent the collective workers’interests against the Party-state?83 Remington and Cui, supra n. 21.84 Raymond W.K. Lau, “China: Labour Reform and the Challenge Facing the Working Class,” Capital andClass 61 (1997): 45.85 Grace O. M. Lee and Malcolm Warner, “The Management of Human Resources in Shanghai, a CaseStudy of Policy Responses to Employment and Unemployment in the People’s Republic of China,” inChina’s Business Reforms: Institutional Challenges in a Globalized Economy, eds. Russell Smyth, On KitTam, Malcolm Warner and Cherrie Jiuhua Zhu (New York: Routledge Curzon, 2005), 125.86 Lau, supra n. 83; Lee, supra n. 28.204Moreover, the ACFTU was established and assimilated into the organizational structureand traditional institutions. It is barely possible that Chinese trade unions would representworkers’ grievances, and organize or support workers’ protests.87 The ongoing relegationof unions by management inhibits them from reorganizing.88 The 85 years of dependenthistory, the close relationship with the Party-state, the integral institutions, the overlap inpersonnel, the tight control from the regime, and the economic pressure from the localauthorities, together, mean that Chinese trade unions would not and could not merelyrepresent collective workers’ interests and rights, following their western contemporaries.Therefore, in disputes between the government and workers, for instance during thelabour protests in SOE’s restructuring, trade unions always appear more like a stateinstrument, and attempt to prevent or stop labour unrests. Sometimes they simplydisappear when disputes happen. In the most positive cases, they serve as mediatorsamong employers, workers, and government agencies, as opposed to being a voice of theworker.89 At times, representatives of unions have shown up at mediation sessions torepresent the companies.90 The trade unions’ refusal of representation has raised hostileresponses among workers. According to Chen’s case study in Shanghai, for instance,angry workers beat up a union cadre who came to the protest site, and tried to stop them87 Clarke and Pringle, supra n. 3.88 Ibid.89 Feng Chen, “Trade Unions and the Quadripartite Interactions in Strike Settlement in China,” ChinaQuarterly 201 (2010): 104.90 See Chen, supra n. 2.205and ask them to leave.91 Meanwhile, in many labour protests which are organized bymigrant workers, the trade unions always are evidently on the side of local government.For instance, according to Chan, in a large-scale strike at a huge shoe factory inGuangdong Province, the local government, the trade union, and the police joined forcesto suppress the strikers.92 Workers are extremely disappointed at unions, and manyworkers have abandoned unions. They claimed that “it is useless to turn to unions.” Someworkers even illegally started underground trade unions to organize labour actions.935.2.3 Chinese Trade Unions’ Reforms and TransitionsAs China’s union monopoly, the ACFTU has some advantages that the Western tradeunions do not. It is strongly supported by all levels of government, and it already hastremendous membership and subsidiaries. According to the latest official statistics, therehave been more than 2.8 million members in more than 2.75 million primary trade unions,and the number of migrant worker members was 109 million by June 2013. There are2.75 million grassroots trade unions, covering 6.38 million enterprises.94 The ACFTU isdoubtless the largest trade union in the world in terms of membership. The scale can helpthe ACFTU better achieve its goals.91 Ibid.92 Anita Chan, “China’s Migrant Workers’ Legal Rights Awareness on the Rise,” International UnionRights 22 (2015).93 Chen, supra n. 2.94 ACFTU, “The Members of ACFTU is over 280 million,” October 14, 2013, accessed June 8, 2015,http://acftu.people.com.cn/n/2013/1011/c67502-23166574.html.206According to Clarke and Pringle, the relegation of the ACFTU to the Party did notindicate that unions would become a tool of the government.95 In the mid-1950s, theACFTU attempted to show its autonomy. Subsequent effort was made forty years later, asa result of the effects of economic reform, inflation and increasing wildcat strikes andprotests.96 The unions were aware that in this new market economy, they must betterrepresent the independent interests of employees.97 In October 1988, the ACFTUCongress demanded “drastic changes,” such as expanded autonomy for unions to preventillegal worker organizations. The former president of ACFTU, Ni Zhifu, noted in 1989that rather than being a branch of the government, unions ought to perform autonomouslyto entice employees to quash the rise of “independent trade unions.”98For over three decades, the ACFTU has gradually been integrated into the policydecision-making field. In 1988, Ni Zhifu proclaimed that the ACFTU would participantthe decision-making field at all levels, and suggest in reform policies in certain areas,including prices, wages, housing, working conditions, and social welfare.99 The ACFTUalso petitioned for processes to safeguard employees’ interests, and fostered its position in95 Clarke and Pringle, supra n. 3.96 Jude Howell, “Trade Unionism in China: Sinking or Swimming,” Journal of Communist Studies andTransition Politics 19. 1 (2003): 102.97 Clarke and Pringle, supra n. 3.98 Xinhua News, July 25 1989, cited in Sek Hong Ng and Malcolm Warner, supra n. 19.99 White, supra n. 86.207discussions about legislative and policy reform.100 It vehemently supported the regulationof labour relations, lobbied against regulations based on individual contracts that theMinistry of Labour favoured as well as the stipulation for communal agreements that wasbuilt in the 2001 Trade Union Law.101 Wei Jianxing was Chairman of the ACFTU from1993 to 2003, and through half this time, he was also a prominent associate of the CPCPolitburo; this provided him with the ability to promote the ACFTU’s views to theMinistry of Labour. As a result, the ACFTU maintains an effective role in its efforts tolobby for different labour legislations.102 As Wharton highlights, the ACFTU had dozensof conferences with the Ministry of Labour and Social Security, the Legislative Office ofthe State Council, and the Legislative and Law Commissions of the NPC; in addition, itproposed more than a hundred suggestions to the Standing Committee that wereimplemented in the forthcoming law.103 Jichen Liu, legal work minister of the union,declared that enduring and unchanging working associations would inspire effectiveeffort and enhance commerce.104100 Anita Chan, “Revolution or Corporatism? Workers and Trade Unions in Post-Mao China,” TheAustralian Journal of Chinese Affairs 29 (1993): 31.101 Suzanna Ogden, “China’s Developing Civil Society: Interest Groups, Trade Unions and AssociationalPluralism,” in Changing Workplace Relations in the Chinese Economy, ed. Malcolm Warner (New York:Palgrave Macmillan, 2000), 263; Simon Clarke, “Post-Socialist Trade Unions: China and Russia,”Industrial Relations Journal 36. 1 (2005): 2.102 Clarke and Pringle, supra n. 3.103 Wharton, “Despite Good Intentions, China’s New Labour Law Leaves as Many Issues Unresolved as itAddresses,” (2007) accessed on April 4 2016http://www.knowledgeatwharton.com.cn/index.cfm?fa=viewfeatureandarticleid=1685andlanguageid=1.104 Richard B. Freeman, and Xiaoying Li, “How Does China’s New Labour Contract Law Affect FloatingWorkers?” National Bureau of Economic Research Working Paper Series 19253 (2013).208In the legislative process of developing the three new labour laws starting in 2005, theACFTU joined the discussion surrounding the Labour Contract Law following theproposal of the original draft; subsequently, it vigorously contributed to the modificationprocess.105 Moreover, the ACFTU used public debate about the regulation in order toenhance collective contracts and multilateral bargaining conventions.106 According toClause 20 of Trade Union Law of PRC, the trade unions shall, on behalf of employees,negotiate with the enterprise and organizations equally and sign collective labourcontracts. The script of the contract will then be presented to and proved by the workers'Congress or by employees.107 The unions won wider acknowledgement of collectivecontracts, and their position in implementing collective contracts. However, the lawevaded the trade unions’ exclusive rights to represent employees by providing theWorkers’ Congress the right to approve collective contracts.108However, some literature explores that a significant intention of the new Labour ContractLaw was to settle labour grievances individually and in a non- confrontational manner.109The regime’s noticeable penchant to avoid collective agreements is apparent in the105 Mary Gallagher and Baohua Dong, “Legislating Harmony: Labour Law Reform in ContemporaryChina,” in From Iron-Rice Bowl to Informalization: Markets, Workers and the State in a Changing China,eds. Kuruvilla, Lee and Gallagher (New York: Cornell University Press, 2011).106 Pringle, supra n 78.107 Trade Union Law of PRC (2001), Clause 20.108 Remington and Cui, supra n. 21.109 Remington and Cui, supra n. 9; Lee and Zhang, supra n. 69.209Labour Contract Law.110 In practice, collective contracts may be signed on a territorial orindustrial basis, or both.111 They normally are broad framework, listing minimumstandards for payment and employment circumstances.112 The regime avoided providingpolitical independence to collective mechanisms, such as trade unions and employers’associations.113 In short, the new law fervently favours disputes being settled individually;it also slightly enhances the current privileges of the unions in group negotiations thatbecome collective contracts.114According to White, the Chinese trade unions achieved limited influence over policymaking and legislation, at the cost of sacrificing autonomy. They sought superioroperational independence alone with an intimate relationship with the regime.115 Clarkecontends that the Chinese trade unions are strongly controlled by the regime and theemployers who use a “carrot-and-stick” approach to maintaining unions in theirtraditional roles.116 Chen also highlights that the unions’ political role depends on howmuch autonomy the regime is willing to grant them. At present, the Party-state vigorously110 Labour Contract Law, Clause 51.111 Labour Contract Law, Clause 53.112 Tim Pringle, supra n. 78, 117-122.113 Remington and Cui, supra n. 9.114 Mary E. Gallagher, “China’s Workers Movements and the End of the Rapid-Growth Era,” Daedalus143: 2 (2014), 81-95; Mingwei Liu, “Conflict Resolution in China,” in The Oxford Handbook of ConflictManagement in Organizations, eds. William K. Roche, Paul Teague, and Alexander J. S. Colvin (Oxford,UK: Oxford University Press, 2014), 488-513; Remington and Cui, supra n. 21.115 White, supra n. 86.116 Simon Clarke, supra n. 101.210holds onto its unyielding domination of unions, due to both political and economicimperatives.117 Clarke and Pringle note that the ACFTU would be able to easily representemployees’ privileges through customary channels and techniques, lobbying for preferredpolicies and laws, and depending upon government organizations.118 Biddulph also et al.highlight that the ACFTU is indeed controlled by the state, but there are sometimesindications that some parts of the union bureaucracy are more active in worker protectionthan others.119 Estlund explores the recent reform efforts focusing on reshaping somefeatures of the ACFTU. The main reform proposals call for democratic elections of unionofficers at the enterprise level and a more robust framework for collective negotiations.Estlund argues that these democratizing reforms would represent major steps forward forChina’s workers; yet they face serious challenges, because these efforts challenge thetraditional functions of the ACFTU.120Compared with trade unions at national and provincial levels, the function of thegrass-roots trade unions seems more changed, especially in the non-state-ownedenterprises. The trade unions at bottom level are more willing to fight for workers’ rightsagainst employers in non-state-owned enterprises, especially in joint-venture andforeign-invested companies. In reviewing a case study of Xin in 2005, trade unions in117 Chen, supra n. 2.118 Clarke and Pringle, supra n. 3.119 Sarah Biddulph, Sean Cooney, and Ying Zhu. Law and Fair Work in China. London: Routledge, 2012.120 Estlund, Cynthia. A New Deal for China’s Workers. Harvard Up: Cambridge Ma, 2017.211joint-venture and foreign-investment enterprises actually have actually had some positiveimpact on protecting workers’ rights. They have workers’ welfare as their primary goal,and democracy as a secondary goal. However, even in joint-venture companies, tradeunions are still not independent organizations. The most significant feature of theseunions is the high degree of overlap between the cadres in the Party Secretary, WorkerCongress, and the trade unions. Through this overlap, the CPC can extend its leadershipand influence into joint-venture companies.121 However, even at grass-roots level, theextent to which trade unions can represent workers’ rights also depends on the localgovernments’ policies. Like some other countries in South East Asia, China is seekingrapid economic development under authoritarian control. Reducing the power of workersis the most essential strategy to attract investors’ interests.122 Some local governments donot support the trade unions in their advocacy of workers’ rights and interests. Some localauthorities have even proposed “no union” agreements to entice foreign investment.123The economic reform and dramatic social changes in China have created both challengesand opportunities for the ACFTU. In the context of an increasingly diverse workforce andcomplex industrial relations, both the regime and workers need trade unions to assumemore legal duties. On one hand, the regime needs trade unions to unify labour movements,121 Tong Xin, “Labour Unions in Enterprises. Proactive Actors, Taking the Operation of the Labour Unionat B Corporation, a Sino-Foreign Joint Venture in Beijing, as an Example,” Chinese Sociology andAnthropology 37:4 (2005): 52.122 Chen, supra n. 2; White, supra n. 86.123 Chen, ibid; White, ibid.212to release the intense tension between the Party-state and workers, and to help establishharmonious industrial relations in the emerging market economy.124 On the other hand,the vulnerable working class also needs trade unions to advocate and protect their rights.Some literature suggests that Chinese trade unions have played a more active function inlabour disputes recently. For instance, Chen notes that they serve a mediating function inlabour disputes and strikes, based on a case study in Dalian. Chen illustrates thenon-judicial process of labour dispute resolution in China is mostly a progression ofquadripartite interaction. Along with the regime and proprietors, both unions andemployees are part of this process. Workers’ collective actions are typically initiated bygroups of unorganized employees who are angry about their plight; while unions’ work isto resolve such events peacefully. The regime, naturally, plays the main role in thisquadripartite process; trade unions mediate among employees and the regime and alsoamong employees and proprietors. They are the key players of the non-judicial process oflabour dispute resolution.125 Chen highlights that Chinese trade unions’ capability tomediate is because of their governmental status which gives them necessary authority andresources. The dual institutional identity of unions places them in a unique position,enables them to communicate with and influence all other parties involved in labour124 Ding, Goodall and Warner, supra n. 25; Clarke and Pringle, supra n. 3125 Chen, supra n. 89.213disputes.126Clarke and Pringle also argue the higher-level trade union bodies have endeavoured tooffer supports for unions at lower level to enhance their capability and skills asrepresentatives. For instance, higher-level unions have become a party in labour disputesto diminish the workplace unions from depending too much on management. The higherlevel trade unions also help the workplace trade unions by offering legal guidance as theyare negotiating collective contracts.127 In some provinces, trade unions sustain frequenttraining programs for union officials. In 2006, over a quarter million union officialsundertook compulsory education, while over half a million took part in optionalcourses.128In recent years, increasing labour unrests occurred, seeking to hold democratic electionsto replace the management-controlled union.129 The direct election of union leaders isconsidered as a method to enhance responsiveness of unions at enterprise level. The issuehas been controversial in China, and there have been some experiments with the electionof trade union leaders in enterprises.130126 Ibid; Chen, supra n. 2.127 Clarke and Pringle, supra n. 3.128 ACFTU, “Work Statistics of the Chinese Trade Unions in 2006,” (Beijing: ACFTU, 2007), accessedMarch 3, 2016, http://www.acftu.org.cn/template/10002/file.jsp?cid¼68andaid¼239.129 Chan, supra n. 92.130 Jude A. Howell, “ACFTU: Beyond Reform? The Slow March of Direct Elections,” China Quarterly(December 2008): 845.214Considering the difficulty in establishing workplace trade unions in new privateenterprises, especially in minor enterprises, the ACFTU make additional efforts todevelop sector and/or local union organizations, hopeful that these can concludecollective arrangements covering all enterprises within this area.131 The ACFTU has alsobuilt up its own network of workforce committees at diverse levels to supervise andinspect. The organization’s report indicates that almost 25 percent of companies had“labour protection supervision and examination committees;” there were 1.621 millioninspectors to safeguard employment in 2006, which was able to take care of two fifths ofall Chinese workers. Trade unions as a whole partook in 2.301 million safety assessmentsin the same calendar years.132 However, according to Clarke and Pringle, such bodieswere impotent to force positive change in workplace without support of relatedgovernment departments.1335.2.4 Concentrated Recruiting Migrant Workers CampaignIn recent years, the ACFTU has paid increased attention to the new workplace power:migrant workers. The ACFTU congress in 2003 declared that migrant workers would beconsidered part of the working class, and would be eligible for trade union131 Simon Clarke, Chang-Hee Lee and Qi Li, “Collective Consultation and Industrial Relations in China,”British Journal of Industrial Relations 42.3 (2004): 235.132 ACFTU, supra n. 127.133 Clarke and Pringle, supra n. 3.215membership.134 Starting in April 2015, the ACFTU launched an ambitious recruitmentcampaign for migrant workers, and issued a document named “The Implementation Planof Concentrated Recruiting Migrant Workers Campaign,” to trade union bodies at alllevels. The document stipulates that from April to December 2015, trade unions at alllevels would focus on the key sectors and areas, including the provincial developmentzones, industrial parks, construction projects, logistics industry, domestic service, andagricultural cooperative organizations, in order to attract migrant workers into the tradeunion. As such, membership of migrant workers in the trade union increased significantlyby the end of 2015.135The major aspects and goals of the “Concentrated Recruiting Migrant WorkersCampaign” include the following: establishing trade union organizations in all of theprovincial development zones and industrial parks across the country, with these localtrade unions representing a major channel of recruiting migrant workers. It specificallyrequires setting up formal project trade unions in every construction project of over20,000 square meters, and building alliances of the project trade unions in order toachieve effective coverage for the small construction projects. It further requires thattrade unions at a provincial level should build their own database of the key sectors, areas,134 Ibid.135 Workers Daily, “ACFTU Launches ‘Concentrative Recruiting Migrant Workers Campaign’ (QuanzongKaizhan Nongmingong Jizhong Ruhui Xingdong),” April 16, 2015, accessed March 15, 2016,http://acftu.people.com.cn/n/2015/0416/c67560-26854243.html.216projects, and companies, in order to get a clear picture of the main targets of members intheir provinces. It calls on the trade unions at provincial level to explore the effectivemeasures to attract migrant workers, strengthen the dynamic management of migrantworkers’ membership, and make it possible that migrant workers’ membership could betransferred to other local trade union branches if they move.136In this campaign, many local trade unions take creative and effective measures to attractmigrant workers to become union members. For instance, according to newspaper article,a migrant worker Youqun Li, who was working in the Yushan Town, Pengshui County ofChongqing Municipality, received Webchat texts from the trade union of PengshuiCounty. These texts introduced the Labour Law, the Trade Union Law, the Constitutionof the ACFTU, and called migrant workers to join the trade unions. Li said, as a migrantworker, he was not familiar with the trade union. He stated, “I just knew that there wereso many benefits of being a union member from those texts.” Now he also shares someuseful information from the trade union in his own Webchat Friends Circle, which is likeFacebook in China. “I wish my co-villagers all know more about the benefits of joiningthe trade unions.” Migrant workers can also fill in and submit membership applicationsthrough mobile phones. This news suggests that the Party Committee of Pengshui Countypaid great attention on the “Concentrated Recruiting for Migrant Workers Campaign,”and required the County General Union to adopt more creative and effective measures to136 Ibid.217attract migrant workers.137So far, although there are no official statistics of how many migrant workers have beenrecruited by this campaign national wide, some reports illustrate impressive results indifferent regions. For instance, in Pengshui County, Chongqing Municipality, there were49 new trade union branches established, with 10,294 migrant workers becoming newunion members as of January 2016.138 According to a report in Fushun Daily, there were70,039 migrant workers working in Fushan City, Liaoning Province, and 69,787 migrantworkers joined the trade unions by November 2015. The rate of union members in all themigrant workers reached 99.6 percent, and “over-fulfilled the task of the ProvincialGeneral Trade Union.”139 A report in the Worker Daily claims that migrant workers whoare working in Handan City, Hebei Province, are glad to have joined the trade unions. Itstates that membership of migrant workers in Handan City reached 1.3 million by August2015, 58 percent of the total membership of Handan General Trade Unions. This reportfurther indicates that trade unions at all levels of Handan City genuinely serve in theirmembers, and provide a “ten benefits package” for new migrant worker members,including membership general benefits, professional training, serious-illness medical137 Chongqing Daily, “Implementing the Concentrative Recruiting Migrant Workers Campaign’ (Shishi‘Nongmingong Jizhong Ruhui Xingdong’),” January 13, 2016, accessed March 15, 2016,http://news.163.com/16/0113/05/BD6FN3E700014AED.html.138 Ibid.139 Fushun Daily, “City General Trade Union Implements Actively, the Concentrative Recruiting MigrantWorkers Campaign (Shi Zong Gonghui Jiji Tuijin, Nongmingong Jizhong Ruhui Xingdong),” December 25,2015, accessed March 15, 2016, http://edu.gmw.cn/newspaper/2015-12/25/content_110400857.htm.218care benefit, support for children’s education, and discount on gym memberships, amongother benefits.140 According to these newspaper articles, it seems that the ACFTU hasmade great progress in recruiting migrant worker, and providing services for its members,since April 2015. However, the official data in China is not always reliable, and can onlydescribe part of the story. How would the ACFTU genuinely service its members, and towhat extent would the Chinese trade unions represent and protect the collective migrantworkers’ interests in future remain questionable, and requires further examination.5.3 Migrant Construction Workers’ Legal CultureRegarding Trade UnionsAlthough a great deal literature has paid attention to the Chinese trade unions, little hasexplored migrant workers’ legal culture, with regard to trade unions. Even fewer studiesexplore migrant construction workers’ ideas, opinions, and attitudes with regard to tradeunions. Although some literature has investigated trade unions’ role in labour disputesamidst the economic reform, few studies have demonstrated Chinese trade unions’ roleand function in the construction industry labour disputes. Based on primary data collectedfrom fieldwork and formal interviews with 34 migrant construction workers, who wereall original residents of Shuangfeng Mountain Resort, in Central China, this chapter140 Fuxing Chen, “The Concentrative Recruiting Migrant Workers Campaign. Handan, Migrant WorkersResponse Actively (Nongmingong Jizhong Ruhui Xingdong, Handan, Nongmingong Ruhui Ting Jiji),”Worker Daily, August 5, 2015, accessed March 15th, 2016,http://news.sina.com.cn/o/2015-08-05/061032174625.shtml.219explores migrant construction workers’ legal culture regarding Chinese trade unions.5.3.1 What is That? - The Major Attitude to Trade UnionsAccording to primary data, migrant construction workers are not the target of trade unionmembership at all levels, although the ACFTU has called on local trade unions to paymore attention to migrant workers in workplace for some time.141 Among the 34interviewees, none had any contact with any trade union or its personnel, let alone hadbeen recruited by one. Moreover, 11 interviewees told me that they never heard about atrade union, and asked me, “What is that?”It is noticeable that among the 9 interviewees who were born after 1985, only 2 of hadever heard about a “trade union,” and neither of those have had any contact with anyunion organizations. Among the rural youth born after 1985, the rate of “never heardabout ‘trade unions’” is 77.8 percent, which is surprisingly high. Meanwhile, this rate islower among the remaining 25 interviewees who were born before 1985. In fact, of thisgroup, only 6 respondents claimed they had never heard of “trade unions,” 25 percent ofthe samples born before 1985. This difference may indicate that the Chinese trade unionsplayed a more important role previously, during the traditional planned economy. Even asa Party-state apparatus and management branch, they are at least visible; however, they141 ACFTU, “The Members of ACFTU is over 280 million,” October 14, 2013,http://acftu.people.com.cn/n/2013/1011/c67502-23166574.html. Accessed September 3, 2016,220became nearly invisible during the market economic reform, especially from migrantworkers’ perspective. For instance, Chutian, born in 1953, told me, “Trade union? Yes, Iheard about it. There were trade unions a long time ago, from the beginning of the CPCleadership. But those are for the workers, not for our farmers, neither for our migrantworkers.” 142Unfortunately, even those who had heard about “trade unions” barely knew anythingabout them. Often, the only thing they knew was the title. For instance, Zhiliang, whowas born in 1981, and working as a small subcontractor, claimed that he heard abouttrade unions. Then he thought for a while, and asked me, “I had dinners with somemembers of Hubei Chamber of Commerce in Xinjiang. Are those the same?” As inChinese, trade union is “Gonghui,” which can be directly translated as “workers’association,” while the chamber of commerce is “Shanghui,” which can be translated as“business association.”143 Clearly, Zhiliang confused these two terms, and one canassume he knows little about trade unions beyond the title.When responding to whether they knew anything about trade unions, respondentsanswers were unified that they had no contacts with trade unions. Most of theinterviewees could offer nothing more on the topic. When answering questions of “labour142 Juan Li, (January 6, 2015), Personal Interview.143 In Chinese, trade union is “工会”; while the chamber of commerce is “商会”。221disputes,” all of the migrant workers have a lot of stories and feelings to share, andshowed strong emotions. However, when answering questions of “trade unions,” theywere mostly indifferent. Many were uninterested with this topic, and the expressions ontheir faces clearly demonstrated they did not consider trade unions relevant. AsHongliang, who was born in 1965, and primarily worked in Beijing, said, “Those formaland big companies have trade unions. But it is none of our business. They don’t careabout us, and we don’t know what they are doing.”144Only three interviewees really knew something more about “trade unions” then theirname. For instance, Aiguo explained that he used to work for the Fifth ConstructionGroup of Hubei, and he heard there was a trade union in their company. But when I askedwhether he had been contacted by the trade union, Aiguo responded without hesitation,“No, never. The trade unions were in the company’s base, and we were working in thesite. It was far away from the base. We never went to the base, and the trade unions nevercame to us.” Then I asked whether Aiguo knew the functions of the trade unions, Aiguothought for a while, and said uncertainly, “They seem to do some security training,right?” I kept asking, “Do you think that the trade unions can help and represent workersto negotiate with the bosses, and protect workers’ interests?” Aiguo responded inastonishment, “That is impossible! That is the company’s trade union! They aretogether.” “Do you mean that the trade unions are like a management branch?” “Yes, you144 Juan Li, (December 28, 2014), Personal Interview.222are right. They are the official organizations.”145 In fact, Aiguo used the term “GuanfangJigou” which literally means bureaucratic organizations.146The other two interviewees who knew something about trade unions were Guohui andJinyun. Both had primarily worked as site managers in recent years. Guohui, born in 1964,worked for a construction company in Dongguan City, Guangdong Province, for twoyears. He worked as a site manager, signed labour contracts with this company, andreceived his salary in full on a monthly base. Different from the other migrantconstruction workers who were regarded as temporary labour, and paid on yearly base,Guohui was a formal employee of this company. However, he was still not the target ofthe trade unions. He said, “The company in Dongguan has a trade union. But they nevercontacted with me. We worked on project sites, and they were in the company base. Thetrade union had nothing to do with us.”Jinyun, born in 1961, one of the three high school graduates, also primarily worked as asite manager in Huizhou City, Guangdong Province. He said this construction companyin Huizhou was very formal. It signed labour contracts with Jinyun, and even providedsocial and medical insurance. Perhaps due to his higher level of education, or perhapsbecause of his work experiences as a manager, Jinyun had more understandings of trade145 Juan Li, (February 1, 2015), Personal Interview.146 Guanfang Jigou, “官方机构.”223unions than the other interviewees. He said, “I heard about trade union. The company inHuizhou had one. But they never came to contact with me. It is only an artificial division,and can do nothing.” I asked him, “Then do you know the trade unions’ functions?” Hementioned, “They are supposed to help workers! They should help workers when theyhave difficulties and problems! But in fact, they didn’t fulfill any of these. They are onlyornaments. The only function of them is their existence. When there is a trade union, andthere is a chairman of the trade union, that’s enough!” I asked, “Did this trade unionattempt to recruit you or any of the employees around you to be their members, by anymeans?” Jinyun seemed a little bit impatient because of my slow understanding; “Youdon’t understand yet. Trade union is only an official division of the company. As far as itexists, that’s enough. There is no so-called ‘member’ at all! ”5.3.2 Invisible – The Trade Unions’ Role in Labour DisputesSome literature highlights that Chinese trade unions play a more active role in labourdisputes. However, based on the primary data collected during fieldwork, trade unions arelargely invisible in labour disputes in the construction industry, at least from theperspective of migrant construction workers. Neither as the workers’ representative, noras a mediator between workers and government, have trade unions simply disappearedfrom the picture in labour disputes in the construction industry. All of the 34 intervieweesshared plenty of experiences and stories of labour disputes with me, but the term of “trade224unions” was not mentioned even once.According to the fieldwork of this study, there are two kinds of labour disputes in theconstruction industry, one is the “on-site dispute,” and the other is the“back-to-hometown dispute” which is the more common kind. As long as the migrantconstruction workers come back to their hometown, their ambiguous identity completelyturns back to “peasants,” and the wage default disputes simply become personal debtdisputes between two rural residents, rather than labour disputes between employees andemployers. As such, there is no role for “trade unions” of this kind in “back-to-hometowndisputes.” Migrant construction workers’ resolution for this kind of dispute primarilyremains conservative and informal, by using ethical pleas and family relationship to putpressure on the immediate subcontractors.Compared to back-to-hometown debt disputes, the on-site disputes in the constructionindustry are more organized. The migrant workers may choose more “modern” means tosettle labour disputes in host cities, for instance, blocking the entrance of the site, cuttingoff electricity and water, appealing to Labour Bureau, calling 110, attracting attentionfrom mass media, and parading or demonstrating in front of the local government. Somescholars observe that the labour disputes in China are always organized by “informal”225worker leaders,147 but in most of on-site labour disputes in the construction industry, theorganizers normally are the immediate subcontractors. As in many cases we discussed inChapter 4, these subcontractors organize the migrant workers to take aggressive actionsto attract attention from mass media, public, and local governments, hence to put pressureon general contractors and to force them to pay. In fact, the majority of “on-site disputes”fall in this category, while the trade unions are also invisible in this category.Among the experiences and stories of disputes that I heard during my fieldwork, only onelabour dispute happened in Yingkou City, Liaoning Province. Xiaohua explained asituation of a dispute, which was organized by informal work leaders, with Xiaohuahimself being one of those leaders. Theoretically, trade unions could play a role in thiskind of “on-site” labour dispute as one player in the “quadripartite process.” They couldplay a mediating role between workers, government, and employers. However, in the caseof Yingkou, trade unions are still missing – not only the trade unions at enterprises level,but also the “bureaucratic unions” at higher levels. It is safe to assume that trade unionsare total invisible from the migrant workers’ perspective. They would never go to tradeunions for representation, nor would they go to trade unions for help or support. While,workers normally go to other government apparatus for help and support in labourdisputes, including the Public Security Bureau and Labour Bureau.147 Chen, supra n. 89.226It is noticeable that the Labour Bureau was often mentioned in migrant workers’narratives. Workers clearly have more faith in Labour Bureaus, comparing with tradeunions. In many cases, the Labour Bureaus help migrant workers to resolve disputes withemployers. Their identity as governmental apparatus gives them enough authority andresources for dispute settlement. The functions and features of the trade unions as animportant player in the “quadripartite process” of labour disputes, is replaced by LabourBureaus.In short, in the construction industry, trade unions are totally invisible and unnecessaryfrom workers’ perspective, and their dual institutional identity becomes merelygovernment apparatus. In this way, it lost the necessity of its existence, at least in theconstruction industry. It would be simply ornamental, being substituted by informalunions or other workers’ associations on one hand, and being replaced by Labour Bureausor other pure governmental bodies on the other hand.5.3.3 Association of Co-villagersIf the trade union should be defined as “a continuous association of wage earners for thepurpose of maintaining or improving the conditions of their employment,”148 or as “anorganization consisting predominantly of employees, the principal activities of which148 Sidney Webb and Beatrice Webb, History of Trade Unionism (New York: A.M. Kelley, 1965), 1.227include the negotiation of rates of pay and conditions of employment for its members,”149the associations of Xiaogan migrant construction workers, especially the associations ofco-villagers are more appropriately called labour unions than the ACFTU.The natural association of co-villagers makes it possible that all migrant constructionworkers know the wages of the industry. It allows them to make the best decision whenchoosing jobs, and it also provides more job opportunities. This association ofco-villagers also provides collective bargaining power for Xiaogan migrant constructionworkers across China. Thanks to the famous reputation of Xiaogan people in this industry,especially of Xiaogan plasterers, the co-villagers’ association could provide strongsupport and bargaining power for members. In some cases, when a project has a shortdeadline or high-quality requirements, a group of Xiaogan plasterers could serve asbosses, because Xiaogan plasterers are well known for their good techniques and skills,and this co-villagers association could call on many skilled plasterers to join the projectquickly, and guarantee to complete the task on time and with good quality. Thisadvantage is irreplaceable in the construction industry. Many interviewees mentioned thatwhen they were unsatisfied with their wages, or when bosses defaulted on their wages inNortheast, they simply stopped working all together, and threatened that they would leave.The unified action would put a lot of pressure on subcontractors, and in many cases the149 Australian Bureau of Statistics, “Trade Union Census,” accessed January 21, 2015,http://www.abs.gov.au/AUSSTATS/abs@.nsf/0/9FCBBF538897395ACA2570EC001A6CED?OpenDocument.228Xiaogan workers achieve their goal by this.This association of co-villagers also can provide genuine representation for individualmigrant workers in labour disputes. As explored before, the leader of the “on-site” labourprotests is always the immediate subcontractors who also play as the representative of themigrant workers association of co-villagers when negotiating with the general contractorsor subcontractors at higher tier. It is doubtless that the representation from subcontractorsis more genuine than trade unions, because subcontractors have common interests withthe migrant workers.Unfortunately, this effective and powerful association of migrant construction workers istotally exclusive. Only original residents from the same country are eligible members forthese associations. Typically, on a construction site, there are several associations ofmigrant workers that come from different regions. Migrant workers seldom have sociallives outside of their own associations, and barely communicate with migrant workersfrom other regions. Different groups of migrant workers often fight with each otherbecause of small conflicts. The other major limitation of this exclusive co-villagersassociation is limited in size. Normally there are, at most, several dozen migrant workersfrom same area working on a big construction site. The sense of membership exclusionalso restricts their sizes, and these two limitations restrict their effect and influence.2295.4 SummaryThere is a great deal of literature depicting how Chinese trade unions have made progressduring China’s economic reform, with many efforts and measures being undertaken toimprove capability of representing collective workers’ interests. However, the primarydata of this study provides very negative findings. Basically, migrant constructionworkers are not the target of membership for the Chinese trade unions at all levels.Among the 34 interviewees, no trade unions had ever contacted them, by any means. It isastonishing that 77.8 percent of the young migrant workers born after 1985, and 25percent of the migrant workers born before 1985, have never heard about trade union.Even those who had heard of the trade union barely know anything more than its title. Allof the interviewees did not have many things to say on this topic. Due to the lack ofgenuine representation from labour unions, the association of co-villagers adopts the roleof “unions” for migrant construction workers, and provides sincere representation andstrong collective bargaining power through the national network established by Xiaoganpeople. Unfortunately, these effective and powerful labour associations have two majorlimitations that they are naturally exclusive and limited in size. These limitations restricttheir effect and influence.During labour disputes in the construction industry, Chinese trade unions are totallyinvisible, at least from the migrant construction workers’ perspective. The trade unions230did not represent workers’ collective interests, nor serve as a mediator betweengovernment, employers and workers. This calls into question their necessity: they havebeen substituted by the informal unions or other workers’ associations on one hand, andbeen replaced by the Labour Bureaus or other governmental bodies in the other hand, asleast in the construction industry.231Chapter 6 Conclusion6.1 IntroductionBased on the pre-fieldwork and fieldwork taking place around two years in HubeiProvince, a less-developed province in central China, as well as oral histories of 34migrant construction workers from the same hometown, this study explored Xiaoganmigrant construction workers’ ideas, values, opinions, and attitudes, with regard to thelegal system and legal reform in contemporary China. In particular, the study engagesthree essential aspects of employment relationship as three “Markers”, namely labourcontracts, labour dispute resolution, and trade unions. It elaborates the related legal andpolitical changes related to migrant workers, the construction industry, labour contracts,labour dispute resolution, and trade unions, focusing mainly on three importantregulations: Labour Contract Law, Labour Dispute Mediation and Arbitration Law, andTrade Union Law.The study also elucidates Xiaogan migrant construction workers’ experiences, thoughts,and feelings on the three “Markers,” and uses the three Markers as an analytical lens toexplore Xiaogan migrant construction workers’ legal culture regarding their legal andpolitical system, as well as their society. This study also shed light on the tensionsbetween liberal legal norms imported from the West, and deeply embedded local values.2321 It demonstrates that the imported Western legal norms, such as rule of law, rights,contract, litigation, and trade unions have, so far, only had limited influence on thepopular legal culture of Chinese migrant construction workers; at the same time,traditional local values in China, such as the family ethic, morality, and harmony, stillplay a dominant role in their daily lives.6.2 Perceptions on Rule of Law and RightsAt the end of each interview, I asked two groups of “theoretical” questions, one about“rule of law” and the other about “rights.” Although it is too ambitious to explore migrantconstruction workers’ legal culture on these two complicated topics in a short section,there were some interesting findings, worthy of note.6.2.1 Law Has Nothing To Do With UsMy questions about “rule of law” normally included the following: “Do you think oursociety is ‘rule of law’ now?” “Do you think law is important?” And, “Is law important toyou?” As discussed in Chapter 2, as an imported value, “rule of law” has not beensupported from either traditional culture or the Party regime in China; hence, it is notsurprising that migrant construction workers’ legal culture regarding “rule of law” are1 Pitman B. Potter, China’s Legal System, (Cambridge, UK: Polity, 2013); Pitman B. Potter, “Legal Reformin China: Institutions, Culture, and Selective Adaptation,” Law & Social Inquiry 29. 2 (2004): 465.233quite negative. Most interviewees knew little about these “theoretical” questions, and didnot have much to say. Some simply told me they had no idea, and most gave negativeresponses based on common sense and gut feelings. Among the 34 interviewees, only onethought that Chinese society was “sort of” based on rule of law; four believed that Chinawas moving towards “rule of law” because of improved policies; the remaininginterviewees thought that China was not based on the “rule of law.”Guohui, born in 1964, primarily works as a site manager in Guangdong Province. He wasthe only person who thought that Chinese society was “sort of” based on rule of law. Thatsaid, he answered with uncertainty, “It is sort of (rule of law), I guess. Nowadays, ifsomething happens in a construction site, the authorities will know about it. For example,if there is a security incident, the Administration Bureau of Work Safety will know aboutit immediately. They will demand you to stop operating, and correct the problem. Nowthe administration is quite strict. No-one can mess up.”2 Clearly, Guohui’s workingexperiences in Guangdong Province where labour regulations are enforced more strictlycontributes to Guohui’s opinion.Four participants felt that China has been moving in the right direction, towards “rule oflaw,” due to recent government policies and regulations. Xiaohua, born in 1962, one ofthree high school graduates, stated, “It is not ‘rule of law’ now, but it is moving towards2 Juan Li, (December 23, 2014), Personal Interview.234the right direction in general. It’s getting better.”3 Comparing with the experiences in thepast, Xiaohua was satisfied with the positive policies nowadays. He concluded in ourinterview: “Our country is going forward, not backward!”4The rest of the interviewees claimed they barely knew anything about “rule of law,” orstated that China was not based on “rule of law.” For instance, Jinshan, born in 1967, feltthat, “‘Rule of law’ has nothing to do with me, because I never had contact with anyjudicial department.”5 Xinghua, born in1970, believed that China was not “rule of law”and said, “Guanxi is the most important. If you have guanxi, you don’t need law; if youhaven’t guanxi, law is useless.”6 It is notable that all the rural youth believed that Chinais not based on “rule of law.” For instance, Kai, born in 1990, answered excitedly, “No! Itis not ‘rule of law’! Only those rich people have power, and only those powerful peoplehave money. If you are rich, you can do anything and settle any trouble.”7 Youyuan, bornin 1993, also argued that there was no rule of law, and that, “There are too many corruptofficials!”8There were only three interviewees who believed that law was important: Guohui,3 Juan Li, (February 8, 2015) Personal Interview.4 Ibid.5 Juan Li, (November 29, 2014), Personal Interview..6 Juan Li, (January 4, 2015), Personal Interview..7 Juan Li, (January 18, 2015), Personal Interview..8 Juan Li, (January 17, 2015), Personal Interview.235Xiaohua, and Hongxing. All three respondents believed that China was currently basedon “rule of law,” or moving towards “rule of law.” Xiaohua felt that, “Law is important ofcourse. If the ‘three organizations’ of the Security, Procuratorate and Court don’t exist,where can we sue?” But when asked whether he had been involved in a lawsuit, he said,“I haven’t so far. But I must know there is somewhere that I could go to complain!”9Hongxing and Guohui also claimed that law works everywhere nowadays.The remaining interviewees all felt that law had nothing to do with them. For instance,Chutian, born in 1953, said, “Law has nothing to do with me, since I don’t break anylaw.”10 Dayong, born in1978, also stated, “Law is not important to me at all. I had somedisputes before, but I handled them my own way. We are all co-villagers, and anydisputes can be settled peacefully. It is unnecessary to ‘tear’ anyone’s face. Resorting tolegal procedures is totally unnecessary. We are co-villagers. We must consider ourrelationship.” 11 It is notable that none of the rural youth have faith in law, and theirattitudes were even more desperate than their parents. For instance, Zhen, born in1990,stated, “Law is useless! Money is more useful than law. If you don’t have money, youmust dare to risk your life!”12 Zhen also believed that violence is more useful than law,and he claimed that all his friends at his age believed so. Peng agreed with Zhen, and9 Juan Li, (February 8, 2015), Personal Interview.10 Juan Li, (January 6, 2015), Personal Interview.11 Juan Li, (September 29, 2014), Personal Interview.12 Juan Li, (September 29, 2014), Personal Interview.236believed that law is troublesome and useless. Wei, Bo, and Xiong all believed that lawonly mattered when they broke the law because of fighting, and the only function of lawwas to prevent them from making bigger mistakes, such as beating others too hard.6.2.2 Only Officials and Rich People Have Quanli, We Don’tHave AnyIn Chinese, the pronunciation of “rights,” Quanli, can mean two things: “right,”13 and“power”14. They are different in writing, but same in pronunciation. In the interviews, Ipurposefully did not explain to which term I referred, in order to avoid possiblemisleading and misunderstanding. Hence, in this section, I use the term – “Quanli” toreplace the terms of “rights” or “power.” My routine questions about “Quanli” normallyincluded: “What is Quanli?” and “What Quanli do you have?” Obviously, mostinterviewees confused two terms. In most circumstances, they assumed “Quanli” meant“power,” though in a few cases they referred to “rights.”Most interviewees provided straightforward and similar answers, “Only rich people haveQuanli; only officials have Quanli; we migrant workers don’t have any.” Quite a fewparticipants added, “I only have Quanli in my family, over my children.” For instance,Xinghua, born in1970, felt, “If you are rich, you have Quanli; no money, no Quanli. If13 权利.14 权力.237you are rich, a lot of people would come to kiss your ass. If you are poor, who cares aboutyou?” 15 Hongliang, born in 1965, also stated, “No money, no Quanli! Our migrantworkers are at the bottom of the society, how can we have any Quanli?”16 The ruralyouth held the same negative opinions as the older generations. Kai, born in 1990, stated,“When you have money, you have Quanli; if you don’t have money, you have nothing. Ionly have Quanli over my son.” Bo, born in 1993, stated, “Quanli is to control others. Idon’t have any Quanli.” It is safe to argue that in most cases, the interviewees assumedthat “Quanli” referred to “power,” and it is possible they had no idea about “rights,” andwhat “rights” they have. Another case was Chutian, born in 1953, who stated, “Quanli isgiven by the people, and should be used to service the people. We migrant workers don’thave any Quanli.”17 Chutian’s idea about “Quanli” demonstrates the influences fromSocialist ideology, and it still referred to “power.”Only five interviewees had different opinions. Some of these can be regarded as evidenceof rights awareness. For instance, Peng claimed, “I have some Quanli. I am strong, and Ican work. This is my Quanli. If I think you are nice, I work for you; if I don’t like you, Iwon’t work for you. If I think you are really nice, I work really hard for you. This is myQuanli.”18 Both Hongxing and Guohui stated that everyone had Quanli, and anyone’s15 Juan Li, (January 4, 2015), Personal Interview.16 Juan Li, (December 28, 2014), Personal Interview.17 Juan Li, (2015, January 6th), Personal Interview.18 Juan Li, (2015, January 21st), Personal Interview.238Quanli must be within the scope of the law, and must be subject to law. Guohui furtherexplained, “The boss has his Quanli, and I have mine. Workers also have their Quanli. Ifthey want to take the job, they take; if they don’t want to, they can quit in any minute.Nobody can force others to do anything.”19 In these conversations, it is safe to assumethat “Quanli” meant “rights.”6.3 Migrant Construction Workers’ Legal Culture6.3.1 Labour Contracts are Unimportant and UnnecessaryMost of the interviewees had never signed a labour contract. Considering the largenumber of construction projects in which each interviewee had participated, the rate ofmigrant workers covered by labour contracts in the construction industry is astonishinglylow. Migrant construction workers’ attitudes towards labour contracts are also negative.Most interviewees believed that labour contracts are unimportant and unnecessary; someeven considered them a restriction on workers, rather than providing protection. Eventhose who had signed labour contracts regarded them only as a compulsory procedure in“formal” companies. They never read the content, and did not keep a copy for themselves.As Zhao explained, “Those formal companies required the contract, and we don’t needit.”2019 Juan Li, (2014, December 23rd), Personal Interview.20 Juan Li, (January 7, 2015), Personal Interview.239Although labour contracts are rare in the construction industry, the primary data clearlyindicates that migrant construction workers have used traditional methods to protect theirinterest, and to make their weak voices heard, through unification. They rely on theirautonomous system built by thousands of hundreds of Xiaogan people who are activelyworking at all levels of the construction industry, across China. This autonomous systemis surprisingly powerful. Most migrant construction workers only choose to work forXiaogan bosses, because it is more reliable and easier to get payment. Xiaogan bossesalso prefer to hire workers from their hometowns, because of mutual trust, and lessfinancial pressures. The foundation and core of this autonomous system coheres aroundone of the strongest adhesives in traditional China: the family ethic and morality, ratherthan law, or rule of law.Rather than “contract,” interviewees often used “deal” when talking about therelationship between migrant workers and their bosses. This oral “deal” within theirautonomous system is surprisingly powerful. The workers work hard, and do not requiretheir wages until the end of the lunar year; bosses take care of all of the workers’ costsand expenses, and always try their best to pay wages. To do so, they sometimes resort toborrowing at usurious interest rates. Both sides take their oral commitments seriously,and the mutual trust makes the autonomous system work.2406.3.2 Labour Disputes Solutions are Conservative, Informal,and ViolentAs for migrant construction workers in China, in most cases, labour disputes simply referto wage default. In fact, migrant construction workers never expect and demand any otherform of labour rights. Unfortunately, thanks to the “efficient” multi-level subcontractingsystem, the construction industry is the hardest hit area of wage arrears in China. Thereare many instances where migrant workers, who are at the bottom of this industry ladder,lose their salaries. Ever since the beginning of 2000s, the central and local governmentsof China have tried to improve administration over the construction industry, to betterprotect migrant workers’ interest. All of the interviewees agreed that there have beenfewer wage defaults in the past two decades. It is doubtless that many social andeconomic changes, including a booming economy, increased income in rural areas,preferred policies in agricultural section, growing labour shortage, new labour policiesand regulations, as well as new media openness, have worked together to producechanges in the construction industry, and construction workers have more power tobargain with employers, and protect their rights.In protecting their rights, migrant construction workers adopt different strategies whendealing with labour disputes in their hometowns and in the host cites. In their hometown,wage defaults simply become personal debt disputes between two rural residents, rather241than labour disputes between employees and employers. Hence, the dispute isdisorganized and individual. Migrant workers often try to resolve the problem usingethical pleas and appeals to their familial relationship, and turn to violence if ethical pleasare ineffective. In the host cities, and when the boss is an “outsider,” migrant workers canbe quite offensive and aggressive from the beginning. They are relatively more organizedand unified than in their hometown, and may choose more “modern” means in order toattract attention from local government, including complaining to the Labour Bureau,calling 110, as well as parading or demonstrating in front of local government andconstruction companies. It is notable that the rural youth in Shuangfeng Town are moreaggressive and violent than the older generation migrant workers. They believe thatviolence is the best way to resolve problems. Arbitration and legal trials are not even anoption for these interviewees, because the formal legal procedure remains ineffective andunfriendly to migrant workers. In fact, they do not even bother to try to take their disputesto court.Due to the variety of economic contexts and cultural differences in various areas of China,migrant construction workers have diverse experiences in different cities. Labour disputesare relatively easier to settle in big and coastal cities; for inland and less developed areas,it is much more difficult, and sometimes, local authorities are the debtors. Mostinterviewees are unsatisfied with the legal environment in their hometown, HubeiProvince. Compared with government agencies in Beijing and Guangdong, authorities in242Hubei seem less effective and more bureaucratic in labour disputes. It is safe to assumethat this lack of satisfaction with the legal environment of Hubei, and unpleasantexperiences in their hometown, are one of the main reasons that migrant constructionworkers do not have faith in law or the formal legal system.6.3.3 Trade Unions Are InvisibleMuch literature has suggested that Chinese trade unions have made progress in recentdecades, and efforts have been undertaken to improve their capability in representingcollective workers’ interests. Nevertheless, this study’s results did not bode well for tradeunions, at least in the construction industry, and from migrant workers’ perspective.Obviously, migrant construction workers are not the primary membership targets for theChinese trade unions. Among the 34 interviewees, none had ever been contacted by anytrade union organization or personnel. In fact, most interviewees had never heard abouttrade unions. Those who had knew barely anything about trade union beyond its title. Inlabour disputes in the construction industry, the ACFTU is totally invisible. The unionsdo not represent the collective workers’ interests, and do not play a role as mediatorbetween employers, workers, and local governments. They are simply out of the picture.As a result, the official trade unions have been substituted by other informal workers’associations, on one hand, and by other government apparatuses, such as Labour Bureaus,on the other hand. Associations of co-villagers play the role of unifying migrant workers243in the construction industry, and provide representation and strong collective bargainingpower for its members. Unfortunately, this powerful association has two major limitations:they are exclusive and limited in size. These limitations restrict their influence.6.3.4 The Main Influential FactorsBased on the primary data, one can conclude that all of the interviewees from ShuangfengTown tend to have similar perceptions of legal culture with respect to labour contract,labour disputes, and trade unions. The primary data suggests that age, education, position,and host cities, all have limited influence on migrant construction workers’ legal culture.There is no evidence to suggest that the new generation of migrant workers’ has asignificantly different legal culture from their parents, despite the dramatic social andeconomic changes in China since the economic reform starting in 1978. The youngmigrant workers do not have more awareness or faith in law than older migrant workers.They, in fact, are more violent and confrontational than their fathers. There are only someminor changes between the two generations: first, the young boys all hate beingconstruction workers, because of the heavy workload and terrible working and livingconditions, and wish to obtain better jobs in future. In contrast, their parents tend to bemore satisfied with construction work, and seldom complain. Second, younger generationmigrant workers have relatively more open attitudes toward working for “outsider”bosses, as long as payment terms are good. The older generation seldom feel this way,244and most stick to their autonomous system built by Xiaogan people in the constructionindustry, only working for Xiaogan bosses.There is no concrete quantitative evidence to prove that education background andpositions have significant influence on migrant workers’ legal culture; however, someinterviewees’ experiences do indicate that better educational achievement helps migrantworkers have better choices and opportunities. Better positions, such as site manager,could provide more security to migrant workers than ordinary labour jobs. The factor ofone’s host city has important effects on migrant workers’ experiences, but hasinsignificant influence on their legal culture. The primary data suggest that migrantconstruction workers working in Beijing and Guangdong Province have more chances ofsigning labour contracts, especially in Beijing. Potentially, the regime concerns aboutmaintaining stability, especially in its capital, is the main reason for this difference.6.4 SummaryAmidst the chaos of the construction industry in contemporary China, Xiaogan migrantworkers choose to rely on the traditional local values and means to protect their interests,against both capital and bureaucracy, and try to make their weak voices heard by unifying,rather than relying on the formal legal system and trade unions. They made these choicesbased on practical knowledge and sophisticated decisions. Compared to the formal legal245system, this autonomous system can reduce costs, provide convenience, and promotebenefits to the greatest possible extent, in certain circumstances in the constructionindustry in China.Most Xiaogan migrant construction workers believe that the law is useless, or the law isnone of their business; in contrast, they regard family ethic and reputation within theirautonomous system quite seriously. They do not believe that Chinese society is governedby “rule of law,” and claim that law has nothing to do with them. Most believe thatsomething else, such as money, or power, or Guanxi, or violence, is more important andeffective than law in China. It is notable that the rural youth have an even more negativeattitude than older generations. In sum, imported Western legal norms, such as rule of law,rights, contract, litigation, arbitration, and trade unions have, so far, had limited influenceon the popular legal culture of Chinese migrant workers, at least in the constructionindustry; while traditional local values– such as family ethic, morality, and harmony –still play a dominant role in daily life.However, Xiaogan migrant construction workers do have significantly more power andconfidence when bargaining with employers and protecting their own rights. It isdoubtless that many factors, including the booming economy, increased income in ruralareas, preferred policies in agricultural section, growing labour shortage, new labourpolicies and regulations, as well as new media openness, all work together to make these246changes possible in the construction industry. Migrant construction workers are notdirectly influenced by imported legal norms or a formal legal system; however, they dohave more power because of the social, economic and legal changes in their society. Theychoose different strategies in different contexts. They choose to rely on family ethic toresolve their dispute in their hometown, and choose more formal and “modern” resolutionmeans in host cities. This can also be considered as a kind of “selective adaption.”6.5 Suggestions for Future ResearchThere are several limitations to this study because of limited funds and capacity. The twoprimary obstacles are the small sample size, and lack of female participants. As the studyinvolved only 34 participants, the conclusions should be regarded as suggestive ratherthan definitive. More studies in this area, involving more respondents, and more regions,and in other industries, could make valuable contributions, by providing more concretefindings. Moreover, female migrant construction workers have played an increasinglyimportant role in the construction industry. It was a pity that I could not get any femaleconstruction workers to participate in this study. Whether female migrant constructionworkers’ legal culture is different from male construction workers’ is worth furtherexploration.Since the legal culture of the construction worker may differ from that of the migrant247workers in other industries, and there is also good chance that the Xiaogan migrantworkers’ legal culture varies from regions to regions, the legal culture of the migrantworkers who are working in other industries and come from other areas is worthy ofexploring in future. Some insightful comparisons can be made based on empirical studies.For instance, how is the legal culture of the construction workers different from thehousekeepers’? How the legal culture of the Hubei’s construction workers different fromthat of Guangxi’s construction workers? 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The China Quarterly 222, 2015: 380.279Selected Laws, Regulations, and Policies citedAdministration on Wage Payment in the construction industry in Guangzhou,http://sfzb.gzlo.gov.cn/sfzb/file.do?fileId=E91163A788CF4113B5B8459D20D478B7.Administration on Wage Payment in the construction industry in Guangzhou, amended in2014,http://www.gzns.gov.cn/longxue/bmfw_1/ldjy/201504/t20150422_161094.html.Constitution Law of PRC, http://www.gov.cn/gongbao/content/2004/content_62714.htm.Corporate Law of PRC,http://www.scio.gov.cn/xwfbh/xwbfbh/wqfbh/2014/20140826/xgzc31415/Document/1378620/1378620.htm,Notice of Human Body Injury Disability Grade,http://www.ft22.com/jiandingbiaozhun/6767.html.Notice of Construction Department of Guangdong Provincial on Issuing the Guidelinesfor Construction Accident Insurance in Guangdong,http://www.csai.cn/study/203541.html.Labour Law of People’s Republic of China (1994),http://www.gov.cn/banshi/2005-05/25/content_905.htm.Labour Contract Lawof PRC,http://www.npc.gov.cn/wxzl/gongbao/2013-04/15/content_1811058.htm.Labour Dispute Mediation and Arbitration Law of PRC,http://www.gov.cn/flfg/2007-12/29/content_847310.htm.Promoting Labour Employment Law of PRC,http://www.gov.cn/flfg/2007-08/31/content_732597.htm.Regulations on Industrial Injury Insurance, amended in 2010,http://www.gov.cn/zwgk/2010-12/24/content_1772115.htm.Regulation of Workers’ Congress of the State-Owned Enterprises (1986),280http://fgk.chinalaw.gov.cn/article/xzfg/198107/19810700267984.shtml.Rules on Organization of Labour Dispute Arbitration Committees,http://www.mohrss.gov.cn/gkml/xxgk/201407/t20140717_136057.htm.Some Opinions of the State Council on Solving Problems of Migrant Workers, 2006,http://www.gov.cn/jrzg/2006- 03/27/content_237644.htm.Some Opinions of the State Council on Solving the Issues of Migrant Workers, 2015http://www.gov.cn/zhuanti/2015-06/13/content_2878968.htm.Some Opinions of the State Council on Further Promoting the Reform of the HouseholdRegistration System, 2014,http://www.gov.cn/zhengce/content/2014-07/30/content_8944.htm.Some Opinions of the State Council on Further Improving the Service for MigrantWorkers, 2014, http://www.gov.cn/zhengce/content/2014-09/30/content_9105.htm.Tentative Provisions for Construction Industry and Basic Administration System Reform,http://www.people.com.cn/item/flfgk/gwyfg/1984/112501198402.html.Trade Union Law of PRC,http://www.npc.gov.cn/wxzl/gongbao/2001-10/29/content_5277078.htm.281Appendix 1, Undeveloped National ParkShuangfeng Town is located on the southern side of the Dabie Mountain, north ofJianghan Plain, in a central part of China. It is 40 kilometers away from the downtown ofXiaogan, and 70 kilometers from Wuhan, the capital of Hubei Province. ShuangfengTown’s predecessor, Shuangfeng State-Owned Forest, was founded in 1958. In April2001, the Shuangfeng Tourist Resort (town level) was established. It includes onestate-owned forest and 9 villages, and the total population is 12,000.In general, the Dabie Mountain area is famous for its poverty and “tradition” ofrevolution. The soil is thin, the mountains are rocky, and there is far from enoughfarmland. Among the vast mountain ranges, it was difficult to access the outside world.Therefore, many local residents have lived in abject poverty for generations. During thetime of war, the Dabie Mountain area was a base for the Red Army, and famous for thenumber of generals born in this area. For instance, in Dawu County on the north toXiaochang County, 36 senior generals of Chinese People’s Liberation Army were born.Dawu is known as one of the “Top Ten General Counties.” The Top 1 “General County,”Hong’an, is also located in the Dabie Mountain region. Sixty-one senior generals wereborn and grew up in Hong’an County.2121 CPC News, “Top Ten General Provinces and Top Ten General Counties (Shida Jiangjun Sheng, he ShidaJiangjun Xian),” accessed May 30, 2016,http://dangshi.people.com.cn/n/2012/0824/c85037-18823285-1.html.282Due to its natural conditions, Xiaochang County is one of the 100 poorest counties inChina. Although Shuangfeng Town has become a national park, it unfortunately has thusfar not been well developed, nor is it well known nationally, or even provincially. Localgovernment lacks the funds to develop infrastructure, and private investors hesitate tofinance the area because of the project’s breadth and likely duration. In fact, there wereno highways that passed Xiaochang County until 2002, while Shuangfeng Town was notdirectly connected to any highway until 2012. It was not easy for outsiders to accessShuangfeng Town before that. Inside the resort, there are three main lines of naturalscenic spots; however, by March 2015, only the “Middle Line” has started to develop.The East and West lines are stuck because of funding shortages. There is only one road inthe “Middle Line,” while there are no walking paths in many parts of the resort.Accommodation is also insufficient, and of low standard. Hence, Shuangfeng MountainResort has not attracted many visitors.Accordingly, the ticket price of Shuangfeng Mountain Resort is quite low, compared toother national parks in the central part of China. For instance, a ticket for HuangshanMountain Resort was 230 yuan in 2014, and Lushan Mountain Resort was 180 yuan.Even the ticket for Mulan Mountain Resort was 80 yuan, which is at the other side of thesame mountain range of Shuangfeng Mountain, while a ticket to Shuangfeng MountainResort was only 25 yuan. In short, the national park of Shuangfeng Mountain Resort hasnot helped the tourism industry to develop, and has not provided many job opportunities283or income for the rural dwellers. Before 1979, the major income for local families wasagriculture; since the 1980s, the main source of family income has come fromconstruction. Due to the geographic conditions of Shuangfeng Mountain, the farmland isexiguous and in small spots. After the adoption of the household contract responsibilitysystem in 1979, each local adult over 18 years old was assigned only 0.4 mu of land, orless.22 Interviewees born in the 1950s and 1960s consistently lamented that they couldnot feed their families on such small spots of land. Therefore, they must go outside of themountains to earn extra income. For instance, interviewee Guohui, born in 1964, told me:“I have two brothers. We only got 1.2 mu of land in 1979. It certainly could not feed thewhole family. We were always hungry. Once it was allowed, two of us went out to work.Only our elder brother stayed to take care of our parents and farm.”2322 0.4 mu = 266.67 square meters.23 Juan Li, (December 23, 2014), Personal Interview.284Appendix 2, Basic Information of ParticipantsIn total, I interviewed 34 local residents of Shuangfeng Town, where all of theinterviewees were born and grew up. All of the participants were male, and had migrantexperiences. Their major working experiences were in the construction industry (SeeTable A.1, Basic Information of Participants). Among the 34 interviewees, eleven wereborn in the 1950s, eight in the 1960s, five in 1970s, three in 1980s, and seven in 1990s.(See Figure A.2, Age Column of Participants)Table A.1: Basic Information of ParticipantsNo Name BornYear Siblings EducationFarmingExperienceMarriageStatus Children1 Bo 1994 1 MiddleSchool No Unmarried 02 Youyuan 1993 2MiddleSchool(quit)No Unmarried 03 Xiong 1992 1MiddleSchool(quit)No Unmarried 04 Zhao 1990 1 MiddleSchool No Unmarried 05 Kai 1990 1MiddleSchool(quit)No Married 16 Wei 1990 1 MiddleSchool No Unmarried 07 Zhen 1990 1 MiddleSchool No Unmarried 08 Peng 1989 1 MiddleSchool No Unmarried 09 Jie 1988 2 MiddleSchool No Married 1285No Name BornYear Siblings EducationFarmingExperienceMarriageStatus Children10 Zhiliang 1981 1 MiddleSchoolYes, but notmuch Married 211 Yilong 1978 4 ElimentarySchool No Married 212 Dayong 1978 2 MiddleSchool Yes Married 213 Xiaozhan 1975 6 MiddleSchool No Married 214 Hongxing 1971 2 High School(quit)Yes, but notmuch Married 215 Xinghua 1970 3 MiddleSchool Yes Married 216 Aiguo 1968 3MiddleSchool(quit)Yes Married 217 Yafang 1968 2 MiddleSchool Yes Married 218 Hongbing 1968 2 MiddleSchool Yes Married 219 Jinshan 1967 4 MiddleSchoolYes, but notmuch Married 220 Hongliang 1965 2 MiddleSchool Yes Married 321 Guohui 1964 2 MiddleSchool Yes Married 222 Xiaohua 1962 3 High School Yes Married 223 Jinyun 1961 5 High School Yes, but notmuch Married 224 Renhai 1958 4 ElementarySchool Yes Married 225 Ruihua 1954 3 ElementarySchool Yes Married 226 Chutian 1953 4 ElementarySchool Yes Married 327 Jingming 1953 4 ElementarySchool Yes Married 228 Pengtang 1952 4 ElementarySchool Yes Divorced 1286No Name BornYear Siblings EducationFarmingExperienceMarriageStatus Children29 Jianguo 1955 3 ElementarySchool Yes Married 230 Shuiqing 1954 2 ElementarySchool Yes Married 231 Jinqing 1954 4 ElementarySchool Yes Married 232 Jinzhou 1956 4 ElementarySchool Yes Married 333 Chengyun 1956 3 ElementarySchool Yes Married 234 Decheng 1955 5 ElementarySchool Yes Married 2Figure A.2: Age Column of ParticipantsAmong the thirty –four interviewees, three went to high school (two graduated and onequit), twelve only went to elementary school, and the remaining twenty went to middleschool (sixteen graduated and four quit) (See Figure A. 3 and Figure A. 4). All of287interviewees born in the 1950s only went to elementary school, and all of those born after1950s went to middle school or high school, with only one exception. Since theintroduction of Nine-Year Compulsory Education in China, elementary and middleschool are basically free. However, parents need to pay a tuition fee for high school. Mostparents in Shuangfeng Town regarded this as an unnecessary burden.Figure A.3: Educational Background Column of ParticipantsAlthough, according to some literature in this area, new generation migrant workers havea higher educational background than the old
UBC Theses and Dissertations
Legal culture of migrant construction workers in China Li, Juan 2017
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