The Law in China on Occupational Safety and Health

Overview

According to Trini Leung, China is now the largest manufacturing centre in the world.

China at the end of 2001 had an economically active population of 730 million. These workers were 33% in urban areas and 67% in rural zones, with 50% (354 million) in agriculture, forestry, and fishing; 23% (162 million) in mining and manufacturing; and 27% (190 million) in services and government.  Workers in state-owned and collective enterprises comprised  37.3% of the working population in 2001. The number of workers migrating from the countryside to urban areas in search of work is estimated to be between 80 and 150 million people.

Industrial accidents rose by 27% between 2000 and 2001, while occupational diseases

increased by 13% in the same period, according to government statistics.

The impacts of occupational health and safety conditions in China, however, are not simply local but have a worldwide impact.   

So the status of occupational health and safety conditions worldwide as well as in China is an issue of growing importance to health professionals, labour rights organizations, local factory operators, multinational corporations, consumers, and, most importantly, Chinese workers and their families.

Over the last decade, China has emerged as the “world’s factory floor.” Occupational health and safety laws, regulations, and implementing agencies are struggling simply to keep up with the current explosive economic growth.

Occupational health and safety is, of course, not new to China. However, the dramatic economic and social changes occurring over the last 20 years in China are unprecedented in human history. No country has ever industrialized as fast as China. No country has ever faced as many new types of industries and hazards in such a short time. No country has ever experienced such a rapid transition from rural agricultural to urban industrial living. And no country has ever had such an opportunity to gain from the collective experience of other nations. (adapted from G. Brown and D. O’Rourke, International Journal of Occupational Health, with acknowledgement).

Official statistics in 2001 record 9650 fatal accidents which killed over 11,000 workers;  5670 of these were miners. Occupational disease killed over 2300 workers, with 13,200 cases recorded in 2001.  The ILO estimate is that the workplace fatality rate in China is 11.1 per hundred thousand workers (US 4.4). The government view is that these figures are conservative. (with acknowledgement to Trini Leung). This seems to be the case, because Sun Huashan from the State Administration of Workplace Safety (SAWS) noted that in the first nine months of 2004 that there had been 607,429 workplace accidents (17% less than for the same period in 2003) with 98,809 fatalities. A program has been commenced to implement the decision of the State Council on  Further Enhancing Work Safety made at a meeting in January 2004. SAWS has also announced that 100,000 senior coal miners are to be appointed as safety supervisors.

Pneumoconiosis, leukaemia and chemical poisoning are the main types of disease, centred on the metallurgy, building materials, machinery, chemicals, nonferrous metals and coal industries. Businesses are either state-owned (SOEs), private individually owned, foreign investor owned (FIEs) or town and village enterprises (TVEs). Two thirds of non-agricultural workers are in the private sector. Workers tend to be very young rural migrants on short-term contracts.  Some miners sign sheng shi zhuang contracts which waive legal claims and minimise compensation for injury.  Most fireworks factories are small size or family operations in young children employed, and there are frequent incidents or explosions.  Many farmers are exposed pesticide poisoning and regulation of banned and toxic pesticides and requires improvement. Serious industrial injuries tend to be in the developed southern and eastern coastal regions, while mining disasters are usually in the northern and western regions. (adapted with acknowledgment from Trini Leung).

In the construction industry, accidents, dust and asbestos are serious problems. Ministry of Health estimates of pneumoconiosis run to 500,000 cases and exposure to asbestos is common.

The number of reported construction accidents for the first half of 2004 was 1034, with 1122 deaths. The 27 reported Class III accidents (3-9 deaths or RMB 300,000-1 m direct economic damage –AUD 60,000 – 200,000) cost 103 lives, and Class II accidents ( (10-29 deaths or RMB 1-3 million in direct economic damage- AUD 200,000 to 600,000) cost 33 lives., an 18 % increase on the previous year. The structure of the industry means that constructors are often short of cash when they commence a project. An estimated 90% of the construction labour pool consists of min gong, or ex farm workers, whose employment conditions are poorly regulated. A reform called Administration of Certificate Classification of the Construction Industry did not however enforce the general subcontractor qualification. A survey has shown that a third of min gong have no time to learn and a third lack the background to understand training.

(adapted with acknowledgement from Ying Fang, Analysis of Problems of Safety Issues in the Chinese Construction Industry, Curtin University Assignment.)

The Chinese coal mining industry suffers from far too many accidents, mainly due to methane explosions as a result of poor ventilation. At least 60 people died and 88 were missing after an explosion at the state-owned Daping mine in Henan province in October 2004. Over 440 people were at work at the mine which employs a total of 4100. Most of the miners died of toxic gas poisoning. The gas level (methane or combustion products) reportedly rose from two to 40% within minutes.

(adapted with acknowledgment from Daily Vidette, Illlinois State University).

213 miners died in a huge gas explosion at Fuxin, Liaoning Province in early 2005.  29 were rescued. In 2004 alone, more than 6,000 people were killed in mine accidents in China. Officials aimed to reduce the death toll of mining accidents by 3 percent in 2005.

SAWS cites five factors affecting coal mine safety: mining in complicated land strata, outdated technologies, rare investment in improving mine safety, poorly educated miners who violate production rules, and over-production fuelled by an expectation of high profits.

On top of the list of factors cited after another serious coal mine accident in Haizhou are disorganized administration and a lack of regulations about mine use, safety and dealing with disasters and local protectionism.

(with acknowledgement to Sina English)

Occupational safety and health law

The following laws on occupational health and safety in China have been passed by the National People’s Congress:

• Labour Law 1995 , Chapter VIII, Occupational Health and Safety
• Construction Law 1998, Chapter V, Management of Work Safety
• Law of Prevention of Occupational Diseases, 2002
• Work Safety Law 2002

In addition to the Work Safety Law, there are number of other relevant laws that also cover some aspects of workplace safety. There is a list below, but it should be noted that this is by no means exhaustive. It includes only those regulations that are of a general nature or, if more specific, laws the cover sectors in which the rate of industrial accidents or disease are amongst the worst; for example, coal mining, construction, or the use of hazardous and/toxic materials.

• Regulations on the Protection of Women Workers (guiding principles)
• Regulations on Industrial Accidents and Dealing with Accidents (guiding principles)
• Coal Safety Law
• Regulations on Labour Protection for Using Toxic Materials in the Workplace (12 May 2002)
• Regulations on the Safe Management of Dangerous Chemicals (15 March 2002)
• Regulations on Radioisotopes and the Installation of Protective Equipment against  Radiation (24 October 1989)
• Regulations on the Prevention and Cure of Pneumoconiosis (3 December 1987).
• Regulation on Work Safety in the Construction Industry 2004, issued by  ?? State Department No 393 ??, covering design, surveying, construction and supervision
• Certificate for Work Safety 2004, issued by ?? State Department No 397 ??, covering mining, construction and explosive chemical manufacture
• Reporting and Investigation Process for Significant Construction Accidents 1989, issued by the Ministry of Construction; this ranks construction accidents into four classes of severity, Class I being the highest
• The regulations for trade union inspections on occupational health and safety 1997  
    

In 2002 the Chinese government acted to ban the production, importation or usage of amphibole asbestos.

The Law on the Prevention and Cure of Occupational Diseases (1 May 2002) stipulates the responsibilities of enterprises with regard to safe working conditions, industrial accident insurance, the measures adopted to prevent occupational diseases, and the level of information they should provide to workers.

Article 4: … the employing unit shall establish working conditions that conform to national standards and requirements concerning occupational health and shall adopt measures that guarantee the occupational health of workers.

Article 6: The employing unit shall take out industrial accident insurance in accordance with the law on industrial insurance.

Article 20: The employing unit shall adopt effective measures to prevent and guard against occupational diseases and provide equipment to individual workers that guard against such diseases.

Article 30: On drawing up a labour contract with a worker, the employing unit shall actively inform the worker of all potential occupational illnesses that may result from processes used and their harmful results. The employing unit shall also include in the labour contract all measures and treatment against occupational diseases and shall not conceal dangers or cheat the workers. … [W]here the employer has violated the previous two clauses, the worker has the right to refuse to work in an area where there are occupational hazards. The employing unit shall not terminate or cancel the labour contract in these circumstances. … Workers shall study and fully grasp the appropriate information on occupational safety and respect the relevant laws, regulations, rules and operating procedures. They shall use correctly and maintain occupational health installations and individual protective equipment. Workers … shall also promptly report accidents or hidden dangers relating to occupational hazards.

According to Norwitt, Shen, Sonnenberg and Li, the Chinese work safety law of 2002 applies to all work units including state-owned private and foreign invested enterprises and partnerships engaged in production or operation, small or large. The law does not apply in the Hong Kong SAR. Local and provincial regulations and practices may also apply. SAWS has the power to inspect work units without notice. Under the law ill-health or occupational disease do not fall within the definition of accident. Top management must invest sufficient funds in safety management. Persons responsible for safety must be appointed. There are administrative financial and criminal penalties including gaol.

If a work unit handles hazardous materials or has more than 300 employees it needs to have a production safety management department or have a full-time production safety management team.  A part-time safety team is still needed in smaller work units.  These people must be provided with safety education, and pass exams set by an approved body. Safety training must be provided to all employees. SAWS issued opinions on work safety training providing more detail in late 2002. Work units such as subcontractors operating at the one site are required to develop a work safety agreement.

Employees must be provided with appropriate safety equipment and trained and supervised in its use. Certain types of operators of equipment. eg. boilers, cranes, welders, must be trained and certified by an approved body.

All work units must run checks on hazardous materials facilities, on their exits, and the separation of buildings such as dormitories from them. The unit must inform the local authorities of emergency procedures.  Approval is needed before design and construction or renovation of certain facilities involving hazardous materials.

All accidents must be reported to upper management, but may not be required to be reported to government. There are however requirements for doing this for certain types of accidents.  The authorities then investigate workplace deaths, while enterprises should investigate nonfatal injury. Special requirements apply to accidents with damage of more than RMB 5 million or to mining accidents where more than 50 people die.

Employees are protected from retaliation for criticising work safety, filing a claim, or refusing to breach safety regulations. They can request assistance from the local Labour and Social Security Department.

The new law does not alter the payments available to employees under work-related injury insurance, the so-called Trial Measures. Pre-injury contracts reducing entitlements are outlawed. The trial measures also cover occupational diseases. The work unit must contribute to the Labour and Social Security Department to fund work-related injury insurance, as well as pay other Social Security premiums. The insurance covers medical payments, injury and disability payments, and rehabilitation as well as lost wages, or death payments. In certain circumstances the employee can claim damages under civil law such as the Labour Law 1994, or make a tort-like claim.

The work safety law gives unions rights in relation to safety in the design, construction operation of construction projects.  They can also participate in workplace injury investigation.  They may advise evacuation if needed but this is not binding.

A work unit may be ordered to make alterations. Under the law, penalties for work units range up to RMB 100,000 (AUD 20,000), seizing of illegal gains, orders to cease operation, cancelling a work unit’s business license, and/or being prosecuted under criminal law.

For an individual, penalties include fines ranging up to $200,000, removal from the job, not being allowed to work in a similar role for five years, and/or criminal prosecution with the possibility of gaol.

Standards for safety management were set by the State Economic and Trade Commission in 2001 include Guiding Opinions on the Occupational Safety and Health Management System and the Standards for Examining and Verifying the Occupational Safety and Health Management System.  These are based on the ILO occupational health and safety management system standard ILO-OSH 2001.  These apply to all companies, not just the work units defined in the work safety law.  The standards include the requirement to prepare and implement a written occupational health and safety policy and to allocate responsibility for safety.

There also over 200 industry and trade standards, including 21 principal ones.

(adapted with acknowledgment from  G. Norwitt, S. Shen, S. Sonnenberg and Z. Li of Paul, Hastings, Janofsky and Walker).

The views of SAWS

According to Shan Chunchang, a Deputy Director of SAWS, “the advancement of workplace safety in China is limited in two main ways; the absence of rigor and the failure of implementation.”

Limitations on the effectiveness of new laws include, Shan Chunchang says:

“1. Regulatory bodies responsible for protecting worker safety have failed to move beyond limitations imposed by earlier statutory guidelines

2. Although the relevant laws are issued by the central government, the main responsibility rests with local government.

3. The government’s authority to implement rules and regulations has declined in recent years

4. Investment in safety systems has not been adequate

5. The safety inspection system is unable to legally enforce closure notices and other penalties

6. Fundamental legal impediments prevent the ACFTU from organizing workers in ways that would allow them greater control over workplace safety issues

7. The regulatory environment has become increasingly complex

8. Administrative changes due to government restructuring have further complicated the chain of responsibility for OHS matters.”

Sun Huashan of SAWS notes: “The Labour Law of 1995 contains Articles 52-57 on occupational health and safety. Employing units must setup proper OHS systems and workers must obey rules of safe operation. Article 56 allows workers to refuse work which breaches rules and regulations.Chapter VII contains rules for women and juvenile workers, and Chapters VIII, XI and XII are also relevant to OHS.

The Trade Union Law of 1992 amended in 2001, under Article 39, could also in theory be used to democratically elect worker committees which could act as OHS committees. In addition, this book’s authors suggest,  China could in time adopt the health and safety representative model used elsewhere where the representative can exist separately of the union.

The Work Safety Law of 2002 contains 14 basic measures the most important being:

1. A production unit must meet (jubei) all the relevant laws, regulations and industry specific laws (such as the Coal Safety Law), otherwise it may not undertake production activities.
2. An enterprise must appoint an individual who is responsible for all aspects of safety.
3. An enterprise must also implement a safety management organization or individual. In particular, enterprises must implement a safety management system specifically addressing workplaces where explosives, working at height and other dangers are involved.
4. An enterprise must implement a system of education, training and assessment on safety knowledge of OHS directors (that is, personnel with overall responsibility), OHS managers, and workers.
5. Enterprises must implement a system of three simultaneous [OHS] measures (san tongshi zhidu) at all stages of all projects (jianshe gongcheng); that is, OHS measures should be evident at the planning stage, during construction (of plant and so on), and when production is underway.
6. Production units must register exceptionally dangerous hazards with the local safety inspectorate (anquan jiancha guanli bumen).”

The san tongshi process however is hard to implement when there are changes of responsibility at various phases of a project. Technically backward projects should be eliminated by taotai (selection) in a market tendering process. It is not in either the project manager’s interests or the local government’s interests to want to complicate procedures for investors. There appears to be no clear demarcation of responsibility. For instance (Sun Huashan asks) is SAWS responsible for ensuring the smooth functioning of the san tongshi system? Does it lie with the local inspection department, or the local government officials who have been put in charge of OHS?

A guiding principle is ‘Safety First with Prevention the Key’ (anquan diyi, yufang wei zhu).

In companies that fall within the definition provided under China’s Company Law (which lists limited liability and shareholding companies), the chairman or the president of the board of directors is ultimately responsible for OHS. If the enterprise appoints a managing director of OHS, then ultimate responsibility lies with them. In enterprises that do not fall under Company Law the factory director or manager is accountable for OHS. Interestingly, Article 5 of the Work Safety Law states that with regard to accountability, a person with responsibility for OHS is liable should accidents take place in violation of laws; that is, chairmen, directors or managing directors are not ultimately liable. So, the responsibilities of chairmen, directors or managing directors are to ensure that the person in charge of OHS is taken seriously, and that their recommendations and systems are adequately funded and implemented. The authors suggest that as in other parts of the world, China might consider “piercing the corporate veil”, so that directors are liable if an accident results specifically from their decisions.

The role of the trade union is also spelled out in the new laws. There are two relevant points. The first relates to the theory of OHS laws. Several articles in the law enable the trade union to take a proactive role in ensuring worker safety. For instance, Article 7 stipulates that unions shall organize workers to participate in democratic management and supervision of OHS managers. Likewise, Article 52 states that the trade union has the right to make suggestions and present their opinions on OHS arrangements, their design, operation and monitoring. The union has the legal right to demand the rectification of OHS violations, to make suggestions to management on any matter concerning OHS, and to which work units must respond promptly.

The second point relates to the practical role of the trade union. In theory, the ACFTU can take a leading role in pressuring enterprises to comply with the new standards and laws. It is unlikely to have the capacity to do so any time in the near future. This inability prevents it from playing an active role with regard to OHS and inspections. Furthermore, the ACFTU has no presence in many foreign-invested or private companies, which negates any effectiveness it might have in those enterprises. There is, in short, a significant gap between theory and practice.

First, as one of the currently available commentaries on the Work Safety Law exposes very clearly, there is the contradiction of on the one hand promoting a safe workplace environment but on the other of inducing more foreign investment, much of which enters China to minimize costs. However, in matters relating to OHS in a company, an area that directly affects the life of workers and also public safety, the role of government is to direct the work of supervision and inspection.

Second, the State Council has established SAWS, a government department with the responsibility to oversee inspection work (under which are specific organizations such as the State Administration of Coal Mine Safety).

Third, there is clear evidence that local governments will be challenged in achieving a balance between development and OHS that enables both investment and a safe working environment. The Work Safety Law is nevertheless clear that ultimate responsibility lies with local governments. (Articles 9, 53 and 54)

Despite these contradicting priorities, it is also clear that the function of closing down enterprises that fail to meet standards is the direct responsibility of county level governments and above. (adapted with acknowledgment to SAWS and Sun Huashan).

Other views

According to Thomas Lum of the US Congressional research service, the 107th Congress introduced a requirement that US companies in foreign countries were to implement corporate codes of conduct.  The Congressional executive commission on China made number of recommendations including expanding the rule of law, legal aid programs for workers, and promotion of work health and safety councils.  Legal aid and health programs for migrant women workers are funded by the Levi Strauss Foundation. The US Department of Labour let a  four-year contract to strengthen the Chinese government's capacity to implement laws and regulations that protect internationally recognised labour rights, promote among Chinese workers and employers greater awareness of law and improve the legal aid services to women and migrant workers. Some foreign-owned or overseas factories along the Chinese coast use low skilled labour-intensive production for export and the output is contracted to US companies. Many of the young women working in these foreign investors enterprises (FIEs) have newly arrived from a rural background.  Conditions and work hours are harmful to workers physical health, there is a lack of workers compensation and movement may be restricted.  There are very long work days, continuous work weeks, underreporting of hours worked, she and lack of complaints for fear of loss of privileges.  Overwork may even lead to death. Some FIEs do not pay taxes into insurance funds for accidents and unemployment.  Verbal humiliation and physical punishment are not uncommon. Although the All China Federation of Trade Nnions represents both labour and the State it may help in preventing undesirable management practices.  However there is resistance from local officials and foreign investors to greater unionisation.  China has ratified the International Covenant on Economic Social and Cultural rights but reserves the right to interprete it consistent with the Chinese Constitution, the local labour law and the trade union Law. Safe and healthy working conditions are part of the covenant.  There is a blue book of Chinese trade unions issued by the ACFTU explaining Chinese workers rights.  Local officials may seek to minimise labour regulations to attract investment, however there are individual lawyers in China who have represented workers in cases against FIEs and succeeded.  Autonomous labour organisation outside the ACFTU is not allowed. Of the International Labour Organisation's eight core conventions, China has ratified three.  It has not ratified Convention 155 on occupational health and safety nor        Convention 161 on occupational health services.

Directly owned FIEs from countries with high labour standards generally also observe high labour standards, but toy, apparel and footwear factories producing on contract for labels may not be the same.

In terms of international benchmarks there is no real problem with China's health and safety laws.  The problem, which is not confined to China and has even occurred in the US, is with the level of enforcement.

In larger factories there has been greater observance of codes of conduct out of fear that contracts may be lost with some overseas corporations.  Subcontractors however may have no code of conduct. Labour conditions in privately owned Chinese enterprises may be worse than those in FIEs. The demand for jobs from an abundant supply of workers from rural areas can operate against achieving high standards. Huge cuts in delivery time for products and the prices of some products have not helped.

The problem of workers under 16 in FIEs on the coast is considerably less than in township and village enterprises (TVEs) or workshops in rural China. Chinese labour law prohibits workers under 16 and those 16-18 have overtime and night work prohibitions, and regular health checks. The law also prohibits prison labour, bonded labour and indentured labour. Multi stakeholder codes also do not allow corporal punishment, verbal and sexual harassment or psychological abuse. They provide for freedom of movement during breaks, access to toilets and water, and medical services.

Two Taiwanese companies subcontracting to Reebok recently held free elections for representatives of the ACFTU.

(adapted with acknowledgment from Thomas Lum of the US Congressional  Research Service )

In the eighteen months to 2002, 700 enterprises had accepted training on workplace safety, and 200 had set up safety management systems, according to Zhao Tiechui of SAWS.

The estimated number of fatal accidents in China rose from 73,500 in 1998 to 90,500 and 2001.  Accidents leading to three or more days’ absence from work increased from 56 million to 69 million. Many workers from rural backgrounds lack experience with heavy machinery and hazards such as electricity.

(with acknowledgement to Yang Fu, SAWS press conference 30. 1.02).

Some local law enforcement officers have not been successful in improving small mines which have had an explosion.  As in other parts of the world, here may be intertwined vested interests between local officials and business operators which locks out central authority intervention.  Throughout the world it may be cheaper and easier to ignore regulations than to meet health and safety standards.

China is gradually developing the type of civil society in which insurance companies, industrial associations, employer groups, community organisations and independent unions can attack health and safety problems.  In addition the support of health and safety professional associations, NGOs, academics and the press is needed. These will all contribute to a better health and safety culture.  Workers will need to take up the eight rights they have under the work safety law: information, making recommendations and criticisms, taking action against violations, refusing work where justified, leaving dangerous workplaces, claiming compensation, accessing safety equipment and health and safety training.

The press has played a substantial role in bringing to light and investigating workplace disasters.  And some journalists still continue to receive m mixed messages from different areas and levels of government.

Insurance companies will play an increasingly important part by basing premiums on injury and damage performance.  Penalties for unsafe workplaces and injuries resulting from preventable causes need to be increased. Facilitating the growth of the actors’ interests and forces in civil society will be just as important as legislative change. Partnering by government and others in local initiatives, and targeting critical control points, will assist in the best use of resources. (adapted with acknowledgement to Trini Leung).

Coal mine safety

Zhao Tiechui of SAWS has expressed a number of concerns about coal mine safety.

Old and outdated machinery in state-owned mines, inadequate safety operation procedures, and a decline in the fire prevention facilities and fire-fighting equipment in such mines exacerbate the problems. Nevertheless with a 200 million tonne increase in production, there was an 8% drop in accidents (242 less) in the first nine months of 2004, and 13% (630) fewer fatalities.

In 2000 -2001 the State Council Central Office released 184 rules, regulations and related documents. Departments and ministries of the State Council published another 135. Relevant departments in provinces, municipalities and autonomous regions issued a further 107. The sheer weight of administrative excess is exacerbated by the fact that rules, regulations and documents of this type have various levels of authority and must not contradict the law. Officials therefore need to refer to all sets of rules when attempting to determine the various levels of responsibility for breaches of OHS regulations.

Administrative changes in 1998 have further complicated the task of determining which department assumes responsibility for which sector. Major government restructuring has seen the management and monitoring of OHS shift from the old Ministry of Labour to the State Economic and Trade Commission (SETC). For example, the management and inspection of pressure boilers has shifted to the Department of Technical Inspections while the prevention of industrial diseases has been passed over to the Ministry of Health. The new Ministry of Labour and Social Security (MOLSS) now manages industrial accident insurance. The SETC now oversees OHS departments in each ministry responsible for specific sectors, for example, railways.

In conclusion, despite the promulgation of new laws, it is clear that Chinese workers and their management still face major barriers in achieving workplace safety.

Reliance on the enforcement of laws may be too optimistic an approach, but equally problematic is the belief that workers can easily take control of monitoring and ensuring their own workplace safety through self-regulation. Training programs rooted in local cultures, and based on small steps that make sense to workers in their own terms may be a more viable approach than simply imposing a top-down structure of rules and regulations. Sustainable systems of workplace safety will require patient work that builds committees and trains leaders from the bottom-up. There is potential for this approach, but it will require alternative approaches to those now dominant in China.