PDF《FRONTIERS OF LAW IN CHINA》

FRONTIERS OF LAW IN CHINA VOL.

10 MARCH

2015 NO.

1 DOI 10.3868/s050-004-0015-0009-0 ARTICLE THE RIGHT TO EMPLOYMENT SECURITY IN CHINESE LABOR LAW:LATEST DEVELOPMENTS IN LIGHT OF INTERNATIONAL LAW LU Haina ? Employment security is very often examined from a labor law rather than a human rights perspective. This article looks at the employment security in Chinese labor law from a human rights perspective. The right to employment security includes both negative and positive aspects: a negative right to protection against unfair dismissal, including dismissal for cause and economic redundancy, and a positive right to employment stability. Comparing Chinese labor law with international standards, this article focuses on analyzing important changes in the legislative developments in China in the past years, such as severance pay, labor contract with indefinite duration, and labor dispatching. This article also points out the main deficiencies, such as dismissal on the ground of criminal liabilities, weakness of trade unions and law enforcement, and no exemption of small employers. The article concludes with observing a tendency of Chinese law getting closer to international standards and pointing out the approach China should follow: to enhance employability through vocational training and providing better social security when strengthening the legislative protection of employment security. INTRODUCTION

137 I. WHAT DOES INTERNATIONAL LAW SAY ABOUT THE RIGHT TO EMPLOYMENT SECURITY?138 A. Freedom from Arbitrary Dismissal

139 1. Justification for Dismissal.140 2. Procedural Protection against Arbitrary Dismissal

141 3. Compensation and Relief.142 B. Right to Employment Stability.143 II. PROTECTION AGAINST ARBITRARY DISMISSAL IN CHINA

144 A. Dismissal for Cause: Relevant Issues with Substantive, Procedural Protection and Remedies.144 1. Misconducts of the Worker.145 ? (陆海娜) Associate Professor in human rights law and labor law, at School of Law, Renmin University of China, Beijing 100872, China and researcher of the Center for Human Rights Studies. She obtained a Ph.D. in law from the Catholic University of Leuven (Belgium). Contact: [email protected] 2015] THE RIGHT TO EMPLOYMENT SECURITY IN THE CHINESE LABOR LAW

137 2. Incapacity of the Worker.146 3. Procedural Protection

147 4. Remedies and Compensation.151 B. Economic Redundancy.153 1. Substantive Protection

153 2. Procedural Protection

154 C. Principle of Equality and Groups under Special Protection

155 III. ENHANCING EMPLOYMENT STABILITY IN CHINA.156 CONCLUSION.159 INTRODUCTION Employment security is not only a labor issue, but also a human rights issue. The right to employment security is an essential aspect of the right to work, which is provided by most international and regional human rights institutions.1 Moreover, the right to employment security is related to the enjoyment of other human rights, such as freedom of expression, trade unions rights, right to adequate standards of living, right to health, and right to social security. As a United Nations and International Labor Organization (ILO) member country, China has ratified most of major international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, and

22 ILO conventions. It is therefore an international obligation for China to protect the right to employment security and to follow related international standards. Although employment security is rarely a research subject in human rights literature, it is not questioned as a human right, being part of the right to work. It is, however, not so obvious in the realm of labor law whether workers should enjoy a right to employment security or what kind of job security workers should have. In the U.S., the prevailing rule is employment at will. A common practice is that employees can be dismissed without any reason or prior notice. In many European countries, the rule of dismissal for just cause is constantly under attack.

2 In the context of a globalized economy, one can see a worldwide tendency of labor de-regularization and a so-called race to the bottom phenomenon in terms of national labor standards, including reduced thresholds for dismissals. Nowadays, even the ILO encourages a flexicurity approach, which aims at striking a balance between the economic reality and the employment security.3

1 See ILO, Protection against Unfair Dismissals, General Survey on the Termination of Employment Convention (No. 158) and Recommendation (No. 166), 1995, para.4.

2 Guy Davidov, In Defence of (Efficiently Administered) Just Cause Dismissal Laws,

23 The International Journal of Comparative Labor Law and Industrial Relations 117C138, (2007).

3 See employment security on the ILO website, available at http://www.ilo.org/global/topics/ employment-security/lang--en/index.htm (last visited May 29, 2014).

138 FRONTIERS OF LAW IN CHINA [Vol. 10:

136 In contrast, China has been promulgating new labor rules one after another in the past years, which intend to strengthen the protection of employment security by measures such as more severe sanctions against unlawful dismissal, higher economic compensation for dismissed workers, and stricter control over labor dispatching practices. The

2007 Labor Contract Law and its Implementing Rules, Interpretation IV of the Supreme People'

s Court (SPC), the

2013 Amendment to the Labor Contract Law and its follow-up rules appear to adopt an opposite approach than the world trend or the Western trend. What is the current status of the Chinese labor law on employment security? Is it meeting the international standards on the right to employment security? Does it mean that the Chinese labor law is becoming more socialist? What are the contributing factors behind the phenomenon? From a human rights perspective, is China doing the right thing and doing it in a right way? What does Chine still need to do? This article tries to answer the questions above. More specifically, it intends, first, to clarify international standards on the right to employment security;

second, to examine the Chinese labor law rules on employment security in comparison with international standards from three main perspectives: protection against arbitrary dismissal, economic redundancy, and the reduction of short-term and informal employment. In the meantime, this article analyzes the reasons behind adopted rules and the effectiveness of their enforcement. Due to the lack of access to the entire data of Chinese case law, it is not possible for this paper to conduct a systematic analysis of cases, but this paper focuses on legislation and a rather qualitative analysis on representative cases based on available resources.4 I. WHAT DOES INTERNATIONAL LAW SAY ABOUT THE RIGHT TO EMPLOYMENT SECURITY? Losing a job, especially when it is for an unfair reason, can be among the hardest hits a human being may suffer in life. Losing income and being forced to change the life-style is one thing;

the sense of humiliation, self-doubt, and other negative psychological effects may be more unbearable. It is thus against human dignity to loose a job without

4 Since 2000, the SPC of China and some local courts have started to selectively publish their judicial documents online. Until Jan. 2014, most of provinces have established their own website for publishing judicial documents. On Jan. 1, 2014, the SPC established the website Judicial Opinions of China (www.court.gov.cn), integrating all types of judicial documents around China. Nevertheless, according to some recent research, this website is still selective on published cases and not fully integrated. For example, the author searched cases on dismissal, there are only case documents in

2013 and 2014. For a critical study on the publication of judicial documents, see HE Jie, ZHANG Fang &

HUANG Bohao, 裁判文书网络公布平 台需要改进(The Platform for Publishing Judicial Documents Need to Be Improved), available at http://opinion.caixin.com/2014-06-30/100697536.html (last visited Jul. 28, 2014). 2015] THE RIGHT TO EMPLOYMENT SECURITY IN THE CHINESE LABOR LAW

139 justification and necessary compensation or to live in a constant fear of it. As such, the right to employment security contains more than a negative right not to be dismissed unfairly but also a positive right to employment stability. The right to employment security is contained in a numerous international human rights instruments: ILO Convention NO. 158,

5 several other ILO conventions,

6 International Covenant on Economic, Social and Cultural Rights (hereafter CESCR), European Social Charter (hereafter ESC), the Protocol of San Salvador to the American Convention on Human Rights, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and Convention on Migrant Workers. The ILO Convention NO.

158 of

1982 and Article

24 of the ESC similarly provides that workers shall not be dismissed without valid reasons connected with their capacity or conduct, or based on the operational requirements of the employer. Both instruments also provide workers with a right to appeal and adequate compensation or other relief. The Protocol of San Salvador goes further to provide not only the negative freedom from unfair dismissal, but also an active right to employment s........