Labour dispute arbitration in China: perspectives of the arbitrators
| Pages | 582-603 |
| DOI | https://doi.org/10.1108/ER-12-2014-0148 |
| Published date | 03 August 2015 |
| Date | 03 August 2015 |
| Author | Kyung-Jin Hwang,Kan Wang |
| Subject Matter | HR & organizational behaviour,Industrial/labour relations |
Labour dispute arbitration in
China: perspectives of the
arbitrators
Kyung-Jin Hwang
China Research Center, Hankuk University of Foreign Studies,
Seoul, Korea, and
Kan Wang
Department of Labour Relations, China Institute of Industrial Relations,
Beijing, China
Abstract
Purpose –The purpose of this paper is to explore China’s labour dispute arbitration system reform
through analysing the degree to which it has attained its stated objectives –notably, independence,
justice, efficiency and professionalism –from the perspectives of the arbitrators, previously ignored
in research on China.
Design/methodology/approach –This paper used a mixed research method using questionnaires
and interviews. Questionnaires were sent to all full-time labour dispute arbitrators in Beijing, China
with a useable response rate of 71 per cent. Additionally, qualitative semi-structured interviews were
conducted with 24 key stakeholders involved in the arbitration process.
Findings –Instead of establishing an impartial platform, the arbitration system endeavours to
promote the state’s capacity to rule over labour relations. Its recent reform excluded arbitrational
independence owing to concerns about reducing the Chinese Communist Party’s arbitrary power.
Arbitrational justice was perceived to improve through case resolution efficiency, which made
arbitrators minimise arbitration time, partly because of high caseloads but largely because of their key
performance indicators. Quality of arbitration was compromised. The arbitrators understood the
spaces and boundaries of the reform, and focused on increasing professionalism to enable them to more
fluidly manoeuvre between the different political economic interests, above safeguarding labour rights.
Research limitations/implications –The questionnaire size was too small for regression analysis.
Future research should expand the sample sizes and conduct cross-regional studies.
Practical implications –In 2008, China undertook an arbitrational system reform –probing its
practical influence contributes to the authors understanding about the changing institutional
environment of Chinese labour relations.
Originality/value –As a pilot study on labour dispute arbitrators, this research presents the
dynamics of the Chinese labour dispute resolution mechanism.
Keywords China, Industrial relations, Chinese labour law, Employment legislation,
Labour dispute arbitration system
Paper type Research paper
Introduction
This study of the dynamics of China’s labour dispute resolution mechanism –an essential
component of the country’s labour and employment law system –reviewsthe interactions
among labour relations actors, and probes how the Chinese state intertwines with the
global and domestic markets. In the two decades since China’s enactment of the Labour
Law 1995[1], labour-capital conflicts have intensified. The number of labour dispute cases
skyrocketed from 48,121 in 1996 to 1.497 million in 2013 (China Labour Statistical
Yearbook, 2014). According to the official statistics, 30.65 per cent of incidents of collective
civil unrest in China[2] were caused by labour-capital disputes between 2000 and 2013
Employee Relations
Vol. 37 No. 5, 2015
pp. 582-603
©Emerald Group Publishing Limited
0142-5455
DOI 10.1108/ER-12-2014-0148
Received 19 December 2014
Revised 23 February 2015
21 March 2015
28 March 2015
Accepted 30 March 2015
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/0142-5455.htm
582
ER
37,5
(Li and Tian, 2014), while, in some highly industrialised regions, one wildcat strike
mobilising more than 100 worker participants erupted every three days[3]. China’s labour
dispute resolution mechanism is under enormous pressure. This paper is a pilot study
about the Chinese labour dispute arbitrators and explore the dynamics of the Chinese
labour dispute arbitration system through the arbitrators’perspectives. The paper studies
the outcomes of arbitrational reform following the enactment of the Labour Dispute
Mediation and Arbitration Law (LDMAL) of China in 2008. It draws on the perspectives of
the full-time a rbitrators, w ho are on the fron tline of China’s labour and employment law
system and have been neglected in the existing literature.
Understanding the development of China’s labour dispute resolution mechanism
The Chinese labour dispute resolution mechanism operates in a different political
and economic environment than its counterparts in the USA and the UK. China does
not have an independent judicial system, and the law acts as a part of the governing
toolkit of the ruling Chinese Communist Party (CCP), instead of as an impartial
institution. The introduction of the country’s labour and employment law system[4],
along with its labour dispute resolution mechanism, was to serve three objectives
(Brown, 2010; Gallagher, 2005; Guan, 2001; Taylor et al., 2003):
(1) promoting economic growth through marketisation;
(2) strengthening CCP legitimacy by institutionalising its arbitrary power over
other actors of labour relations; and
(3) maintaining labour peace by safeguarding basic workers’rights to assist
marketisation and guarantee CCP authority.
When the Labour Law 1995 took effect[5], China was transitioning from a centrally
planned economy to a market-oriented one. The law had to take into account not
only China’s socialist legacy but also the demands of marketisation and globalisation.
At the time, it contained some of the most progressive and strict labour statutes in the
world (Brown, 2010; Cooney, 2007; Gallagher, 2005), while dismissing labour-capital
autonomy by legalising the state’s ascendency over labour relations.
Individualandcollectivelabourdisputeshavetogothroughthesamejudicial
procedure (Labour Law 1995: arts. 77, 79, 84), and Chinese trade unionism is unitary
under the CCP leadership (Trade Union Law 2001: arts. 2, 4, 5)[6], –only the CCP-affiliated
All-China Federation of Trade Unions (ACFTU) and its subordinate unions can represent
collective labour rights (Pringle, 2011). Labour dispute resolution agencies do not need to
verify ACFTU’s workplace representation right; the Chinese labour and employment law
system simply refers to the number of workers involved in a case when considering
whether to categorise labour disputes as “collective”. In practice, a case involving more
than three workers was classified as a collective dispute until 2008, when the LDMAL 2008
(art. 7)[7] lifted the threshold to ten workers.
The Labour Law 1995 established the structure of the Chinese labour dispute
resolution mechanism, described as “one mediation, one arbitration and two court rulings”
(“一调一裁两审”) (see Figure 1). Mediation by the enterprise labour dispute mediation
committee or community people’s mediation committee is the first step (Halegua, 2008),
but is voluntary. Despite the system’s encouragement of mediation, which takes place
at several stages of arbitration rulings and court hearings, disputants can refuse to engage
in mediation and skip the procedure. Should the parties of the dispute fail to reach a
mediation agreement, the dispute is brought to arbitration, before turning to litigation.
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Labour
dispute
arbitration
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