Rapport intérimaire - Rapport No. 391, Octobre 2019

1. 133. The Committee last examined this case (submitted in February 2016) at its June 2019 meeting, when it presented an interim report to the Governing Body [see 389th Report, paras 216–261, approved by the Governing Body at its 336th Session (June 2019)].
2. 134. On that occasion, the Committee decided to once again examine this case at its meeting in October–November 2019 [see 389th Report, para. 261].
3. 135. The Government sent its partial observations in a communication dated 24 September 2019.
4. 136. China has not ratified either the Freedom of Association or Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 137. At its June 2019 meeting, the Committee made the following recommendations on the matters still pending [see 389th Report, para. 261]:

B. The Government’s reply

1. 138. In its communication dated 24 September 2019, the Government indicates that it has launched a special investigation into the situation in this case and in this respect transmits the following information.
2. 139. Regarding the results of investigations into the cases of Messrs Meng and Chen, Ms Zhue and others, the Government reiterates that the investigation revealed that the local police in Guangdong Province did not receive any reports from workers at the Lide Shoe Factory (shoe factory) nor from the abovementioned worker advisors. In the case of the destruction of the door in Mr Meng’s rented residence, upon receipt of his report, the local police worked promptly on his case in accordance with the law. A large number of interviews and investigations were conducted, but no solid clue was found to identify the suspect. As provided for in Chinese law, this case is still under investigation by police.
3. 140. The Government further indicates that on 3 January 2017, the bail imposed on Messrs Deng and Peng pending trial was legally lifted. Currently, Mr Deng is engaged in legal business activities and Mr Peng is employed away from his home town; their personal freedom is not restricted.
4. 141. Regarding the alleged violations at the JASIC Technology Co. (the technology company), the Government indicates that since its establishment on 20 August 2018, the company trade union has fully played its role in promoting the harmonious development of enterprises, protecting the legitimate rights and interests of workers and serving the masses of workers wholeheartedly, including by directing its efforts at the following areas:
   • (i) Trade union build-up is more institutionalized (the trade union has established six special committees; developed 32 rules and regulations, including its Standing Orders; and put in place such welfare facilities as the Workers’ Library, the Home of Music, the Multi-functional Hall, the Fitness Gym, the Psychological Counselling Room, the Dispute Mediation Room and the Loving Mother’s Room). By the end of last May, the trade union had registered a membership of 781, or 84 per cent of the total workforce.
   • (ii) Channels of communication and consultation between workers and the management have been enhanced (the trade union has identified “employee relationship, labour standards and collective bargaining” as its main areas of priority, actively conducted wage negotiation with the management, and communicated to the latter a wide range of opinions and suggestions which it had solicited from the workers through many channels, including through its letterbox, the Application Form for Personal Demands and regular visits/interviews).
   • (iii) Progress has been made in workers’ education and training (under the impetus of the trade union, the company designed a three-year action plan for workers’ education and training. Since the beginning of 2019, more than 1,000 workers have been trained).
   • (iv) The role of the trade union has been further strengthened (the trade union has conducted the “Trade Union Day” promotional campaign and a variety of cultural and sports activities; organized skills competitions among workers; and coordinated with the management in order to improve its catering service delivery and workers’ dormitory management, thus gaining universal recognition from the workers and staff).
5. 142. The Government once again reiterates that the Constitution of the People’s Republic of China and relevant laws fully guarantee to its citizens’ freedom of association rights and contain no prohibitive provisions regarding the right to strike. At the same time, in exercising these rights, Chinese workers and their organizations shall abide by the relevant provisions of national laws. The persons involved in this case were subject to investigation and penalty not on the ground of organizing workers or participating in trade union activities, but for the reason of violating relevant provisions of the Criminal Law by resorting to unlawful means in the process of labour dispute settlement. The Trade Union Law provides that “if an enterprise or a public institution is subject to work stoppage or slow down measures, the trade union shall represent the employees to negotiate with the enterprise, public institution or other relevant authorities, make known the employees’ views and requirements and propose resolutions. The enterprise or public institution shall meet the reasonable requirements raised by the employees.”
6. 143. The Government concludes by once again reiterating that in handling the cases in question, the courts and the police complied with the procedures prescribed by the law, and that the legitimate rights of persons concerned were properly guaranteed.

C. The Committee’s conclusions

1. 144. The Committee recalls that this case concerns allegations of arrest and detention on charges of “gathering a crowd to disturb public order” of advisers and paralegals who have provided support services to workers and their organizations in handling individual and/or collective labour disputes.
2. 145. The Committee recalls, in particular, that Mr Meng, one of the advisers, had been sentenced to 21 months of imprisonment on the above charges. It further recalls that the International Trade Union Confederation (ITUC) alleged that following his release from prison, Mr Meng’s identification documents were withheld by the authorities; and that without these documents, he cannot access medical services to treat hepatitis , contracted in prison, nor apply for jobs; that his freedom of movement is restricted and that he was once again detained (for a few days) following publication of articles describing his activism, trial and imprisonment. The Committee once again deeply regrets the absence of a reply from the Government on this matter. It points out that the withholding of identification documents by reason of a person’s involvement in legitimate trade union activities or assistance therewith violates the basic civil liberties of Mr Meng, given that these documents are necessary for his freedom of movement, as well as for obtaining employment and accessing healthcare services. The Committee therefore once again urges the Government to take the necessary steps for the delivery to Mr Meng of the identification papers without delay. Furthermore, once again recalling that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 123], the Committee urges the Government to reply without delay to the allegation of detention of Mr Meng following publication of articles in relation to his activities and imprisonment. The Committee notes the Government’s indication that the case of the destruction of the door in Mr Meng’s rented house is still under investigation, but that so far, no evidence has been found to identify the suspect. The Committee once again requests the Government to keep it informed of the outcome of the ongoing investigation.
3. 146. The Committee further recalls that in its previous examination of this case it regretted that no information had been provided by the Government regarding the alleged beating and injuries suffered by workers and their representatives at the shoe factory, as well as by Mr Chen and Zhu Xinhua (labour dispute at the bag factory) and requested the Government to provide detailed information on the outcome of the relevant investigations. In this respect, the Committee noted the Government’s indication that the investigation had revealed that the local public security authorities in Guangdong Province did not receive any complaints reporting cases of beatings of workers at the shoe factory (nor of Mr Chen, Zhu Xinhua and others at the bag factory). The Committee also noted that the ITUC contested the Government’s claim that the local public security authorities had not received any complaints of cases of beatings at the shoe factory. The Committee notes that in its communication dated 24 September 2019, the Government reiterates its previous statement. The Committee therefore once again recalls that all allegations of violence against workers who are organizing or otherwise defending workers’ interests should be thoroughly investigated and full consideration should be given to any possible direct or indirect relation that the violent act may have with trade union activity. In the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Compilation, op. cit., paras 101 and 105]. The Committee recalls that even in the absence of a formal filing of charges, each case should be thoroughly investigated and, where witnesses have come forward, appropriate and adequate protection should be provided. The Committee therefore once again urges the Government to conduct a full investigation into these allegations without further delay and to keep it informed of the outcome.
4. 147. The Committee further recalls that it requested the Government to provide detailed information on the alleged harsh treatment of the labour activists while in custody, and, in particular, on the alleged numerous interrogations of the accused. The Committee noted the Government’s indication that a special investigation into the situation was carried out and revealed that Mr Zeng and others were not subject to cruel treatment while in detention. The Government reiterated that the public security authority deals with cases in strict conformity with relevant legal provisions and that the rights of those concerned were sufficiently safeguarded during the hearing. In the absence of any new information, the Committee urges the Government to transmit a copy of the investigation report.
5. 148. Regarding its previous requests to confirm that Mr Deng and Mr Peng are no longer under investigation and will not be prosecuted, the Committee notes the Government's indication that the bail had been lifted, that Mr Deng pursues legal business activities and Mr Peng is employed away from his hometown, and that their freedom is not restricted. The Committee understands the Government's indication to mean that Messrs Deng and Peng are no longer under investigation and that they will not be prosecuted and requests the Government to confirm its understanding.
6. 149. The Committee recalls the allegations of violation of workers’ rights to establish a trade union in full freedom without previous authorization at the technology company in Shenzhen, as well as arrests, detention, ill-treatment and disappearance of labour activists and supporters of the company’s workers and the detailed account of the events that gave rise thereto. The Committee noted in particular, that the establishment of a trade union at the technology company was only possible with the involvement and approval of the Federation of Trade Unions (FTU). In this respect, the Committee further noted that according to the ITUC, the overall legislative framework did not allow workers to join or form trade unions unless the local unions affiliate with the All-China Federation of Trade Unions (ACFTU) and that in this particular case, the nine-member trade union committee finally elected was effectively dominated by management with the company investment director as the trade union chairperson. While taking note of the Government’s reiteration that the national legislation and practice ensure that workers enjoy freedom of association and of the information on the achievements of the company trade union and its representativity outlined by the Government, the Committee regrets that the Government has not responded to the numerous allegations of enterprise interference in the creation of the union, including management representation in its leadership. The Committee recalls that all appropriate measures should be taken to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind. The Committee further recalls once again that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party [see Compilation, op. cit., para. 475] and once again calls upon the Government to ensure this right for all workers.
7. 150. Furthermore, the Committee had previously noted with serious concern the list of 32 individuals, engaged in or supporting the workers’ action (see appendix) who were allegedly in detention (5) or have disappeared (27) in this connection, as well as criminal charges brought against some. Regretting that no information has been provided by the Government in respect of this serious allegation, the Committee once again recalls that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Compilation, op. cit., para. 123]. The Committee urges the Government to take all necessary steps to ensure the release of any workers detained in relation to their activities to form a union and to submit a detailed reply on each of the allegations of arrests, detention, ill-treatment and disappearance of labour activists and their supporters, as well as criminal charges laid against some and sanctions imposed. The Committee also requests the complainant organization to provide any further information it might have in this regard.
8. 151. The Committee further noted that among these 32 individuals, four (Messrs Mi, Yu, Liu and Li) were workers of the technology company who were also allegedly dismissed due to their involvement in the establishment of the union and later charged with the criminal offence of “assembling a crowd to disturb public order”. The ITUC also referred to the dismissal of other workers in this connection and names, in particular, Messrs Song, Kuang, Zhang and Chang. The Committee noted that according to the Government, following investigations it was ascertained that Messrs Liu and Yu were dismissed for fighting with their colleagues and absenteeism, respectively, and that the civil case of Mr Yu’s dismissal was suspended due to him being involved in a pending criminal case. The Committee observed the contradictory nature of the information provided by the Government and that of the complainant in relation to the circumstances around these dismissals. It recalled that adequate protection against all acts of anti-union discrimination in respect of employment, such as dismissal, demotion, transfer or other prejudicial measures is fundamental to the principle of freedom of association. The Committee once again urges the Government to take the necessary measures to ensure adequate protection against anti-union discrimination in law and in practice and to provide a copy of the report on the outcome of the investigation previously referred to by the Government and detailed information with regard to the alleged dismissals of Messrs Mi, Li, Song, Kuang, Zhang and Chang.
9. 152. Regarding the pending criminal cases against the four workers (Messrs Mi, Yu, Liu and Li) in relation to the exercise of their right to assembly, the Committee noted that the ITUC reiterated that it was not possible for workers and labour activists to participate in a legitimate strike or demonstration without violating the law that prohibits the disturbance of public order; and that it was common for the prosecutor and the court to view industrial action taken by workers as public security violations rather than as the exercise of fundamental rights. The Committee notes the Government’s reiteration that the national legislation does not contain provisions prohibiting strikes and that the persons involved in this case were subject to investigation and penalty not on the ground of organizing workers or participating in trade union activities, but for the reason of violating relevant provisions of the Criminal Law by resorting to unlawful means in the process of labour dispute settlement. In the face of conflicting information, the Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests. It further recalls that the right to organize public meetings constitutes an important aspect of trade union rights. In this connection, the Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives, which it has considered as falling within the exercise of trade union rights, and those designed to achieve other ends [see Compilation, op. cit., paras 208 and 209]. In light of the circumstances of this case, the Committee wishes to highlight that the Criminal Law should not be applied in such a manner as to penalize workers in violation of their right to peaceful demonstration. The Committee therefore once again requests the Government to reply without further delay to the specific allegations in relation to the exercise of the right to strike and demonstrate in practice and in particular to provide information on the status of the pending criminal cases against the four workers, including detailed information on the precise acts for which they have been charged, as well as any court judgment rendered in their case.

Appendix

1. 1. Mr Mi Jiuping: the technology company worker, detained since July 2018, charged with “gathering a crowd to disrupt social order.” He is being held at the Shenzhen Municipal No. 2 Detention Centre. Mi’s first two lawyers were forced to withdraw from his case. On 1 October 2018, a request by a new lawyer to meet with Mi was denied on the grounds that Mi’s case involved state secrets.
2. 2. Mr Yu Juncong: the technology company worker, detained since July 2018, charged with “gathering a crowd to disrupt social order”. He is being held at the Shenzhen Municipal No. 2 Detention Centre. After meeting with Yu on 30 August 2018, Yu’s lawyer was pressured to withdraw from the case. Yu’s requests for a meeting with his new lawyer have not been accepted after 30 August 2018.
3. 3. Mr Liu Penghua: the technology company worker, detained since July 2018, charged with “gathering a crowd to disrupt social order”. He is being held at the Shenzhen Municipal No. 2 Detention Centre. Liu told a lawyer who met with him in September that he had been beaten. Further requests to meet with his lawyer have been denied.
4. 4. Mr Li Zhan: former the technology company worker and worker supporter, detained since July 2018, charged with “gathering a crowd to disrupt social order”. He is being held at the Shenzhen Municipal No. 2 Detention Centre. After meeting with Li on 18 September 2018, Li’s lawyer was pressured to withdraw from his case.
5. 5. Ms Shen Mengyu: graduate of Sun Yat-sen University, forcibly disappeared in August 2018. Still missing.
6. 6. Ms Yue Xin: graduate of Peking University, forcibly disappeared on 24 August 2018. Still missing.
7. 7. Ms Gu Jiayue: graduate of Peking University, taken from her home on 24 August 2018, charged with “picking quarrels and provoking trouble” and is being held under “residential surveillance at a designated place”. Whereabouts unknown.
8. 8. Mr Xu Zhongliang: graduate of University of Science and Technology Beijing, detained since 24 August 2018, charged with “picking quarrels and provoking trouble” and is being held under “residential surveillance at a designated place”. Whereabouts unknown.
9. 9. Mr Zheng Yongming: graduate of Nanjing Agricultural University, detained since 24 August 2018, charged with “picking quarrels and provoking trouble” and is being held under “residential surveillance at a designated place”. Whereabouts unknown.
10. 10. Mr Shang Kai: editor of a leftist media website Hongse Cankao, taken away by Guangdong police on 24 August 2018 from the office of Hongse Cankao. Still missing.
11. 11. Mr Fu Changguo: staff member of a workers’ centre, Dagongzhe, detained since August 2018, charged with “gathering a crowd to disrupt social order” and is being held at the Shenzhen Municipal No. 2 Detention Centre.
12. 12. Mr Yang Shaoqiang: graduate of University of Science and Technology Beijing, taken from home in August 2018, charged with “picking quarrels and provoking trouble” and is being held under “residential surveillance at a designated place”. Whereabouts unknown.
13. 13. Mr Tang Jialiang: postgraduate student at Beijing Institute of Technology, forcibly disappeared since early September 2018. Still missing.
14. 14. Mr Wu Lijie: editor of a leftist media website Hongqi, taken from home and forcibly disappeared 24 October 2018. Still missing.
15. 15. Mr Zhang Shengye: graduate of Peking University, taken from campus and forcibly disappeared on 9 November 2018. Still missing.
16. 16. Ms Sun Min: graduate of Peking University, taken away in Guangzhou and forcibly disappeared on 9 November 2018. Still missing.
17. 17. Mr Zong Yang: graduate of Peking University, taken away in Beijing and forcibly disappeared on 9 November 2018. Still missing.
18. 18. Mr Liang Xiaogang: worker supporter, taken away in Shanghai and forcibly disappeared on 9 November 2018. Still missing.
19. 19. Mr Tang Xiangwei: worker supporter, taken away in Wuhan and forcibly disappeared on 11 November 2018. Still missing.
20. 20. Mr Zheng Shiyou: worker supporter, taken away in Wuhan and forcibly disappeared on 11 November 2018. Still missing.
21. 21. Ms Zheng Yiran: graduate of Beijing Language and Culture University, taken away in Beijing and forcibly disappeared on 9 November 2018. Still missing.
22. 22. Mr Lu Daxing: graduate of Nanjing University of Science and Technology, taken away in Beijing and forcibly disappeared on 9 November 2018. Still missing.
23. 23. Ms Li Xiaoxian: graduate of Nanjing University of Chinese Medicine, taken away in Beijing and forcibly disappeared on 9 November 2018. Still missing.
24. 24. Mr He Pengchao: graduate of Peking University, founder of Qingying Dreamworks Social Worker Centre, taken away in Beijing and forcibly disappeared on 9 November 2018. Still missing.
25. 25. Ms Wang Xiangyi: graduate of Peking University, founder of Qingying Dreamworks Social Worker Centre, taken away in Shenzhen and forcibly disappeared on 9 November 2018. Still missing.
26. 26. Ms Jian Xiaowei: graduate of Renmin University, staff member of Qingying Dreamworks Social Worker Centre, taken away in Shenzhen and forcibly disappeared on 9 November 2018. Still missing.
27. 27. Ms Kang Yanyan: graduate of University of Science and Technology Beijing, staff member of Qingying Dreamworks Social Worker Centre, taken away in Shenzhen and forcibly disappeared on 9 November 2018. Still missing.
28. 28. Ms Hou Changshan: graduate of Beijing Foreign Studies University, staff member of Qingying Dreamworks Social Worker Centre, taken away in Shenzhen and forcibly disappeared on 9 November 2018. Still missing.
29. 29. Ms Wang Xiaomei: graduate of Nanjing University of Information Science and Technology, staff member of Qingying Dreamworks Social Worker Centre, taken away in Shenzhen and forcibly disappeared on 9 November 2018. Still missing.
30. 30. Ms He Xiumei: supporter of Qingying Dreamworks Social Worker Centre, taken away in Shenzhen and forcibly disappeared on 9 November 2018. Still missing.
31. 31. Ms Zou Liping: local trade union staff member, detained in Shenzhen on 9 November 2018, charged with “picking quarrels and provoking trouble”. Whereabouts unknown.
32. 32. Mr Li Ao: local trade union staff member, detained in Shenzhen on 9 November 2018, charged with “picking quarrels and provoking trouble”. Whereabouts unknown.