OUT OF TIME

加班是职场人的宿命?

The World of Chinese - - FRONT PAGE - BY DAVID DAW­SON

In China's mod­ern con­sumer driven econ­omy, you're ei­ther quick or you're dead. Or, if you get too much over­time, you could be both. The phe­nom­e­non of “death by over­work” is ex­ac­er­bated by a long list of prob­lems of en­force­ment in China's la­bor laws, and ev­ery­one from white-col­lar work­ers to Wal­mart em­ploy­ees are slip­ping through the cracks.

Has de­vel­op­ment helped China’s work­ers es­cape ex­ces­sively long work hours?

为谁辛苦为谁忙:经济迅猛发展,行业日益繁荣, “加班狗”们却感觉身体被掏空

Walk­ing into a Wal­mart in China at al­most any given time, you wouldn’t guess that work­ers have been spo­rad­i­cally strik­ing and spar­ring with man­age­ment over work hours. Es­sen­tially, Wal­mart wants to be able to as­sign hours based on a set av­er­age each month, rather than have em­ploy­ees work from nine-to-five. The plan would wipe out over­time pay for work­ing ir­reg­u­lar shifts, so the com­pany’s more than 100,000 work­ers are less than im­pressed.

Em­ploy­ees have re­port­edly been persecuted for at­tempts to form unions and have com­plained of ha­rass­ment from em­ploy­ers when at­tempt­ing to con­tact la­bor bu­reaus.

It’s a fa­mil­iar story to West­ern au­di­ences; Wal­mart has long had quar­rels with its staff in coun­tries across the globe and has stamped out union ac­tiv­ity wher­ever it can. But in China, where la­bor laws are still the­o­ret­i­cally in­flu­enced by com­mu­nism, a com­plex pic­ture emerges of over­time work. In many cases China’s la­bor sys­tem has taken on elements of West­ern work cul­ture, while still bedev­iled with prob­lems re­gard­ing worker rights.

In the case of Wal­mart, two for­mer em­ploy­ees have formed an or­ga­ni­za­tion that takes on some as­pects of union work with­out being a union. This be­came known as the Wal­mart Chi­nese Em­ployee Fel­low­ship. There is no set mem­ber­ship and it has just one full-time staff mem­ber. It has, how­ever, pro­vided an av­enue for work­ers to com­mu­ni­cate na­tion­wide in a coun­try where the only ap­proved la­bor unions are run by em­ploy­ers or the au­thor­i­ties un­der the aus­pices of the All China Fed­er­a­tion of Trade Unions (ACFTU).

The clash be­tween Wal­mart and its em­ploy­ees con­tin­ues, ex­ac­er­bated by the fact that Wal­mart salaries have stag­nated while costs of liv­ing in China have in­creased, mak­ing a on­ceat­trac­tive job now seem lack­lus­ter. The sit­u­a­tion is a sober­ing re­minder that work­ers face an in­cred­i­bly dif­fi­cult

time re­duc­ing or even pre­serv­ing cur­rent work­ing hours and in­creas­ing over­time pay. Aside from the loss of over­time, work­ers have also ex­pressed con­cerns that the new shifts would wipe out their abil­ity to work sec­ond jobs, while mak­ing it eas­ier for su­per­vi­sors to sched­ule un­rea­son­able shifts and force em­ploy­ees to re­sign with­out sev­er­ance pay.

On the books, China has pretty solid pro­tec­tions for over­time pay. Un­like in the US, the con­cept of a “salar­ied em­ployee”, who re­ceives a set per­week or per-month salary re­gard­less of hours worked, doesn’t ac­tu­ally ex­ist in China un­less a la­bor bu­reau has specif­i­cally given per­mis­sion— even though it’s still com­mon for con­tracts to stip­u­late a wage by month re­gard­less of the type of work ar­range­ment.

With the per­mis­sion of a la­bor bu­reau, the com­pany can also opt for “flex­i­ble work­ing hours” or a “com­pre­hen­sive” sys­tem, but this per­mis­sion has to be con­stantly re­newed.

In the case of Wal­mart, the com­pany re­ceived this per­mis­sion, but when it asked em­ploy­ees to sign new con­tracts that would make it of­fi­cial, work­ers went on strike. Some work­ers have also claimed that they were co­erced into sign­ing doc­u­ments that were used by the com­pany to ob­tain per­mis­sion for these new work­ing hours.

If a com­pany lacks per­mis­sion for a flex­i­ble or com­pre­hen­sive work­ing hour sys­tem, em­ploy­ees are to be paid by the hour, and paid over­time once the work ex­ceed 40 hours a week or eight hours each day.

That is how it is sup­posed to work for ev­ery­one, re­gard­less of whether they are a fac­tory worker or se­nior man­ager, and in the vast ma­jor­ity of cases, even peo­ple who ap­pear to be con­trac­tors are ac­tu­ally treated as em­ploy­ees ac­cord­ing to the law—in the­ory.

“The only ones who truly fol­low work­ing-hour reg­u­la­tions in Chi­nese la­bor law are state or­gans and pub­lic in­sti­tu­tions, and a few more ‘stan­dard­ized’ large cor­po­ra­tions and state-owned en­ter­prises,” Wang Jiang­song, a la­bor scholar af­fil­i­ated with the China In­sti­tute of In­dus­trial Re­la­tions, points out. “In real­ity, six­day work weeks, or 11-hour work days are very com­mon,” he says of private en­ter­prises.

Wang says that, un­for­tu­nately, quit­ting is rarely a good op­tion for work­ers fac­ing un­rea­son­able over­time. “‘Vot­ing with your feet’ is only ef­fec­tive in sit­u­a­tions where the la­bor force is lack­ing, where there are not enough work­ers,” he says. “Usu­ally you’ve climbed out of the tiger’s cave and into the wolf ’s den.”

For work­ers try­ing to claw back pay for extra hours worked, the sit­u­a­tion is par­tic­u­larly tough.

“Our gov­ern­ment, the [na­tional] la­bor union has pro­moted re­ly­ing on ex­ist­ing le­gal pro­ce­dures to ap­ply for la­bor ar­bi­tra­tion or start law­suits... The net ben­e­fit from do­ing this, for the la­borer, is not very large, be­cause even if you win, the process takes too long, so the costs are too great,” Wang says. “In 2013, I dis­cov­ered some data. If a la­borer wants to pur­sue 3,000 to 4,000 RMB of salary [owed], the cost that he...has to pay can po­ten­tially be 8,000 to 9,000 RMB to go through all the steps in the ju­di­cial process.”

OF OVER­TIME AND SEVER­ITY FRE­QUENCY , THOUGH THE PRO­FES­SION VARY BY THE DO, OF COURSE, AMONG TO NOTE THAT IN­TER­EST­ING WORK­ERS IT'S ARE WHITE COL­LAR HARD­EST HIT

The fre­quency and sever­ity of over­time do, of course, vary by pro­fes­sion, though it’s in­ter­est­ing to note that among the hard­est hit are white col­lar work­ers.

“I’ve found that high-tech in­dus­tries are pretty hard hit in terms of over­time, so cases in white-col­lar sec­tors of over-ex­er­tion or death from over­work are nu­mer­ous,” Wang says, also list­ing tex­tiles and ser­vices among the af­flicted in­dus­tries.

In­deed, the term “guo­laosi” (过劳死) , or “death by over­work”, is a com­mon one in China. One of the most fa­mous cases of death by over­work was high-pro­file bank­ing reg­u­la­tor Ji Jian­hua, who suf­fered a heart at­tack which media widely at­trib­uted to being caused by over­work. Nu­mer­ous in­stances of peo­ple dy­ing from over­work have cropped up in media re­ports, and China Youth Daily has put the fig­ure at 600,000 deaths from over­work ev­ery year.

China’s tech sec­tor mir­rors many of the elements en­coun­tered by its Sil­i­con Val­ley coun­ter­part, of­ten ex­ag­ger­at­ing them, and the ubiq­uity of over­time work among star­tups is most cer­tainly among them. Shared workspaces are be­com­ing com­mon. The sight of em­ploy­ees sleep­ing at the of­fice is not an un­usual one, par­tic­u­larly given the fact that China’s dan­wei (work unit) sys­tem of or­ga­niz­ing em­ploy­ees’ lives has long fea­tured dor­mi­to­ries so work­ers don’t need to go home to sleep.

For­tu­nately for Chi­nese work­ers, at least nap­ping dur­ing work hours is gen­er­ally much less of a sin than in West­ern of­fices, and many em­ploy­ees openly sleep at their desks on lunch breaks.

But this is far from enough to com­bat the dreaded guo­laosi, which is largely re­ported as a white-col­lar prob­lem. Mean­while, deaths in fac­to­ries or China’s no­to­ri­ously dan­ger­ous coal mines are seen as a re­sult of poor safety con­di­tions, de­spite the fact blue-col­lar work­ers in poorer ar­eas are likely to face bru­tal work­ing hours.

It isn’t all doom and gloom though; over­all, the eco­nomic boom has of course dra­mat­i­cally im­proved work­ing con­di­tions for most of China’s work­ers, par­tic­u­larly those in the coun­try­side. Hav­ing hailed from the coun­try­side him­self, Wang points out that mech­a­niza­tion has re­moved a lot

of the back­break­ing la­bor in­volved in farm work, and this in turn has made work­ing hours better.

But it’s not a sys­tem that is re­spon­sive to worker de­mands.

While laws may seem good in the­ory, the ac­tual en­force­ment can ebb or strengthen ac­cord­ing to eco­nomic trends. La­bor rights groups point out that when em­ploy­ment is tight and au­thor­i­ties are pressed, they are of­ten quick to side with em­ploy­ers and limit em­ployee ac­tion, on the ba­sis that com­pa­nies need to stay run­ning to keep em­ploy­ment high.

This has di­rect bear­ing on any ef­forts at re­form.

“Af­ter leg­is­la­tion is made, what’s im­por­tant is en­force­ment and ju­di­cial safe­guards. In re­gards to en­force­ment and ju­di­cial safe­guards in China, there is a com­mon phe­nom­e­non of ‘law with­out guar­an­tee, en­force­ment with­out sever­ity, law-break­ing with­out cor­rec­tion,’” Wang says. “From the bot­tom up, [the laws] give la­bor­ers the le­gal will to pro­tect them­selves; that’s ef­fec­tive. But on the other hand, if la­bor­ers can­not ef­fec­tively use these le­gal re­sources to pro­tect their le­gal rights, then these laws don’t have much use.”

“Whether or not we can truly re­al­ize the ad­vance­ment of rule of law in la­bor is, based on the ex­pe­ri­ences of West­ern na­tions and of West­ern mar­ket economies, de­pen­dent on the three ba­sic rights of work­ers: the worker’s right to union­ize, the right to col­lec­tive bar­gain­ing, and the right to strike,” Wang adds.

It’s a salient point given the cur­rent tra­vails fac­ing Wal­mart staff. The clash is at its most heated in Shen­zhen, where work­ers are at­tempt­ing to sue the com­pany over the new sys­tem and its lack of over­time pay.

TWOC saw images of a doc­u­ment that Shen­zhen em­ploy­ees were shar­ing among them­selves, one of the dis­ci­plinary forms they had been asked to sign, which stip­u­lated the sever­ity of penal­ties that em­ploy­ees faced for mis­deeds. These range from a ver­bal, to a writ­ten, and then a fi­nal warn­ing be­fore dis­missal.

These trans­gres­sions in­cluded, some­what iron­i­cally, spread­ing crit­i­cal in­for­ma­tion on­line in the group dis­cus­sion among em­ploy­ees, or for pro­vok­ing com­plaints against Wal­mart.

So ba­si­cally, it’s the kinds of ac­tiv­ity that would be con­sid­ered “form­ing a union”. Some staff claim they have al­ready re­ceived po­lice warn­ings not to com­plain to their su­pe­ri­ors.

In 2006, Chi­nese au­thor­i­ties used Wal­mart as the ex­am­ple to ar­gue the ne­ces­sity of al­low­ing the ACFTU op­er­ate within for­eign com­pa­nies as a union. In June this year, Wal­mart staff in China dis­cussed their la­bor dis­putes with Amer­i­can Wal­mart union staff via Skype and a trans­la­tor, in a very rare case of Chi­nese em­ploy­ees li­ais­ing with Amer­i­can unions over em­ployee rights in China. Tak­ing a step back, this was an ex­ceed­ingly strange case of work­ers from an os­ten­si­bly com­mu­nist state li­ais­ing with a union based in the world’s lead­ing cheer­leader for cap­i­tal­ism, about the ac­tions of one of the world’s largest com­pa­nies.

As China’s econ­omy slows down, so the au­thor­i­ties can fo­cus on “qual­ity” growth rather than growth at a break­neck pace, the Wal­mart dis­pute will be a fas­ci­nat­ing case study into how au­thor­i­ties in­tend to grap­ple with dis­sat­is­fied work­ers while jug­gling is­sues like em­ploy­ment rate and em­ployer de­mands. Be­cause they can be cer­tain that Wal­mart is not go­ing to be the only large com­pany to run into these is­sues, and what hap­pens here will have le­gal ram­i­fi­ca­tions for those that fol­low.

THE CLASH IS AT ITS MOST HEATED IN SHEN­ZHEN, WHERE WORK­ERS ARE AT­TEMPT­ING TO SUE THE COM­PANY OVER THE NEW SYS­TEM AND ITS LACK OF OVER­TIME PAY

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