JOHN CHEN
This article will take a brief look at two widespread manifestations of discrimination in China: against women and against internal migrant workers who will be referred to as ‘migrant workers’ or nongmin gong as they are known in Chinese.
The International Labour Organisation’s (ILO) Convention 111 (Employment and Occupation) prohibits “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction, or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”.
Taking the Convention as a benchmark, the Chinese government’s responsibility to reduce discrimination against women needs no further explanation. Discrimination against migrant workers is perhaps more complex and refers to the ‘social origin’ of the up to 150 million rural farmers who have left their place of birth to take up off-farm employment in cities and towns throughout the country. Apart from having to contend with a general discriminatory attitude from better-off urban dwellers, this group of people is subject to an array of State regulations that together form the basis for an ‘institutionalised exclusion’1 of rural migrants from the benefits of urban life.
Bed for two people in an illegal migrant workers’ hostel in Shenzhen, south China
Photo: John Chen
Nongmin Gong – Peasant Workers
“We get work on the building mostly. We’re all from the countryside in Henan province and we’re all poor. We stay here [a migrant hostel] because we trust the landlord. He’s Henanese too and we know he won’t tell the police we’re in Shenzhen without permits. Sometimes strangers come to stay here but they don’t stay long and we can tell if they’re not good people.”2
This extract from a conversation that took place with the author in the migrant hostel pictured opposite refers to the landlord not informing the Public Security Bureau (PSB - the police) of the migrant’s illegal presence. In fact, it turned out that the landlord was himself operating without a license after renting the flat from a local. This set of illegal arrangements is a not uncommon response to exclusive regulations. In fact State control over all aspects of migrant worker accommodation in China’s major cities is part of an overall attempt to regulate the migration of peasants into the cities in the name of social stability. Anyone who rents accommodation to a waidi ren, i.e. an outsider as in someone who is not registered as a local citizen, is obliged to inform the police. Specifically, Article 7 of the Rules on the Management of Security in the Leasing of Accommodations (1994):
“…providing the PSB with information about the tenant, including his or her name, sex, age, address of permanent residence, profession, or means of livelihood, as well as ‘other basic information’; reporting to the public security organs in a timely manner if the tenant commits a crime, or even if the landlord has any suspicions he or she may have committed a crime”.3
The Hukou in Context
The Rules mentioned above would have far less serious connotations if China did not have a system of household registration known as hukou. Historically, household registration was designed to keep peasants out of the cities via means of State persuasion, coercion, or violence. A popular misconception is that freedom of movement was actively suppressed by the authorities but this is not the case. The hukou system was the result of the decision by the Chinese Communist Party (CCP) to implement an essentially Stalinist or planned and rapid progress towards full industrialisation.
This policy subjugated the countryside – and those who lived in it – to the needs of urban areas. As such industrialisation required a measured combination of State violence and regulatory discrimination that took the form of three basic systems in the countryside: firstly rural production was tightly controlled and peasants were only allowed to grow what was deemed necessary for industrialisation; secondly the commune system of production which, via the collectivisation of agricultural production, ensured that the costs of agricultural production remained low and that the necessary funds for industrialisation went to where the State considered necessary; and third, the household registration system – hukou – was established to restrict peasants moving into the cities for economic reasons. Such a perceived influx would only serve to exacerbate an already strained employment situation and divert funds required for meeting the demands of an often militant urban work force. The result saw far superior standards of living in urban areas and periods of great hardship in rural areas. In short, an economic model that hosted de facto discrimination against rural people.
However, as the economic reforms of the post-Mao era gathered pace, cheap rural labour became something of an ace card in the government’s policy of attracting foreign investment. Far from keeping peasants out of the cities, the government embarked on the delicate task of removing administrative barriers to temporary residence in the cities while regulating the huge human migration that was both expected and materialised. In the new paradigm, a carrot accompanied the sticks. The carrots were – and are – paid work that generates income used to subsidise the family farm income and a chance to see life beyond the farm gate. Sometimes it works. There are millions of migrants who come to the cities, work long hours for minimum wages, stay healthy, and return with enough money to put a younger brother through secondary school, or start a small business, or simply buy enough fertiliser for the family fields.
Regulatory Discrimination
The sticks come in two interrelated types. First is the legal environment created to regulate internal economic migration. Apart from the aforementioned requirements on landlords renting accommodation to migrants, there are separate regulations aimed at the migrants themselves. Space precludes an in depth look at each regulation but the following bullet points should give the general idea:
• Temporary Residence Permit. Anyone away from where their hukou is registered for more than a month must apply to the PSB for such a permit which must be renewed on an annual basis.
• Migrant Employment Permit. This is in fact two permits: a permit issued from the migrant’s home labour recruitment agency and a permit issued by the receiving locality’s labour bureau.
• Planned Reproduction Certificate. This must be obtained from a migrant’s hometown planned reproduction department. On arrival in the receiving locale the certificate is then examined and approved by the local planned reproduction agency. Employers are not allowed to hire migrants without this certificate and none of the other relevant certificates required by migrant workers can be issued without it.
This State control over fertility, employment, place of residence, and accommodation succeeds in excluding migrants from welfare, medical, and social insurance benefits that are available to urban citizens. All such entitlements are only available to those who have permanent urban residential status.
In short, migrants find themselves in a system that affords them freedom of movement but places discriminatory barriers against their assimilation into the place they move to – a situation that will ring bells for external migrant workers in Northern Europe. This institutional discrimination makes the second stick – abusive employment practices – almost inevitable.
Workplace Abuse
The raw power of the employer is particularly felt in a market unfettered by effective trade unions. Until recently migrant workers were even excluded from the State-sponsored and largely ineffective All China Federation of Trade Unions (ACFTU). And as independent organising is illegal and can result in a jail sentence, employers and investors have had little to stop them from ignoring labour laws and forcing long hours for very low wages in unsafe workplaces on migrant workers. These conditions, combined with the regulations described above, produce the downside hidden behind the reforms and their “glittering images of modernity”.4 The migrants who pay the price for building this modernity do so in various ways: “by losing a limb to an unguarded machine; who are left penniless by a foreign investor/boss who simply disappears without paying wages; who are sacked for organising a protest and forced to return home, sometimes via a prison cell or detention centre. Or those who, at 18 years of age and desperate not to be a burden on the family finances, jump from a seventh-storey hospital window after failing to get compensation for benzene poisoning.”5
Discriminating Progress
The last three years have given some cause for optimism. In 2001, the Ministry of Public Security announced an easing of the hukou rules while emphasising the system was not about to be abolished. Since then some larger cities have begun granting permanent residential status to migrant workers who have been working away from home for long periods. In what is viewed as a second-rate option by some migrants, permanent residency rights are being granted in small towns (population under 100,000) that are being built in the wave of urbanisation that is regarded – mistakenly in this writer’s view – by the government as the principle response to rural poverty. The central government has also signalled its intention to encourage migrant workers to buy transferable social insurance – usually for retirement, medical, and occupational injury – by changing the ways in which the minimum wage is calculated. In theory at least, this will lead to a rise in wages for migrants.
These measures have coincided with recent labour shortages in some of China’s better known magnets for foreign investment along the southern and eastern coasts. Whether this is a temporary glitch or the first sign of a systemic bottleneck in the labour market remains to be seen. For the time being we can take heart from the fact that, in some areas at least, the shortages have led to increased confidence in migrant workers to demand higher wages and better working conditions. 
School’s out! Migrant mine workers’ children return to the mine camp after school; the extra fees charged by schools to non-local children are yet another aspect of discrimination faced by internal migrants
Women and Work
Post-1949 efforts to move towards equality between men and women was a cornerstone of CCP ideology and there is no doubt that great progress was made with the introduction of the Marriage Law (1950), which, on paper at least, rendered feudal concepts of women and ownership of women obsolete. If we measure progress by volume of laws and regulations, it appears to have continued especially in the workplace. Aside from Article 48 of the Constitution which stipulates gender equality in all spheres of life and the Labour Law which outlaws all forms of discrimination at work, there have been at least nine sets of laws and regulations addressing the issue of women in the work place, the most important being the ‘Law on the Protection of the Rights and Interests of Women’ (1994).
Yet workplace discrimination against women remains a serious issue and if anything the market reforms of the past 25 years have seen it increase. From a legal rights perspective, there are two main reasons for this. Firstly, the laws and regulations concentrate on the protection of women on the grounds of their biological differences from men and the social burdens that are deemed a natural consequence—chiefly the dual responsibilities of work and family. For example there are regulations against women working at height, performing certain tasks during menstruation, working at night during the later stages of pregnancy, allowing time off for nursing infants and earlier retirement for women civil servants. But there is much less emphasis on the fact that women are as capable and productive as men and should be treated as such. Secondly, there is no legal detail or actual law on the problem of active gender discrimination in the hiring process itself. Experts point to the absence of a more general equal opportunities law.
Failed legislation and somewhat flawed conceptual thinking has not been helped by market forces, as even those who actively promote them have pointed out. A World Bank report published in 2003 points to a global trend which has seen “the creation of contractual, temporary, and informal sector jobs which do not enjoy the same social protection as state sector jobs – especially key for women during their child-bearing years”.
Gender and Employment
Employers rarely hire women over the age of 35. It is already well-documented that employers in the special economic manufacturing zones generally take on young women from the countryside and conspire to get rid of them once they reach their mid-twenties and become less productive. Or put another way, when they become more experienced and begin to agitate for higher wages. Indeed labour researchers are pin-pointing this discrimination as being a primary factor behind the aforementioned labour shortages.
Throughout the restructuring of the state sector, women workers have generally been first out of the door despite – or in some cases because of – seniority. The Ministry of Labour reported that in 1997, women accounted for only 39 percent of China’s work force but made up nearly 61 percent of its laid-off (i.e. redundant state sector) workers. While the continued large-scale lay-offs since 1997 may have rendered a more even gender balance, this is hardly to be welcomed and does not alter the fact that women workers were targeted first. Moreover women earned just 70 per cent of men’s pay and in 1999, 13 percent less than the figure for 1990. The principle reason for this drop is that market reforms have concentrated women in a restructured manufacturing sector which offers low paid and insecure jobs. Up to 22 million state managed manufacturing jobs were lost during the restructuring of this once well-protected sector.
If it is difficult for middle-aged men to find work, it is even worse for women over 35 years of age, a threshold that has become popular with employers. Often single-skilled and with family responsibilities that restrict their capacity for retraining, employer discrimination in hiring has often resulted in a direct descent into long-term unemployment and poverty for many women. Research into the support networks of laid off women in Chengdu in Sichuan province found that “[T]he social position of former SOE [state-owned enterprise] women workers was profoundly weakened by redundancy. This group differs from other vulnerable social groups…far from being on the margins of urban society, these women were, as SOE employees, at the core of the old production system – the masters of the country’s [enterprises].”6
The age threshold can be openly seen in job adverts in newspapers or at local labour markets. While the national Labour Law stipulates the principle of equality in employment, the lack of detail on specific discrimination on the grounds of gender or age is lacking and this gives employers a more or less free hand to pay lip service to the principle and violate it in practice.
Conclusion
It is not the author’s intention to imply that migrant workers and women workers in China face higher levels of discrimination than elsewhere. That would simply be wrong. Yet the capacity of the State to interfere in daily life – albeit gradually lessening – via discriminatory regulations and the lack of an independent media distinguishes the situation from many other countries. Crucially, there is one vital factor that underpins discrimination in China: the absence of freedom of association.
If we compare Chinese society today with that of 60 years ago we will see an astonishing and probably unprecedented transformation. In this process discrimination has moved from being barely recognised as a concept to a topic that has become a political and legal ‘hot potato’. But the change has been almost entirely top-down and therefore essentially flawed. The State’s refusal to allow workers to organise independently in defence of their class interests will always reduce discrimination to an individual struggle that may sometimes achieve results in the courts. Rather than a collective struggle that will see results where they matter – in the workplace.
Notes
1 The phrase is taken from the title of a report on discrimination against migrant workers published in November 2002 by the Human Rights in China (HRIC).
2 From a conversation with the author in Shenzhen, 7 October 2004.
3 HRIC, op cit.
4 A description employed on page 53 of HRIC’s report - see Note 1.
5 Chinese Labour and the WTO, published by the Hong Kong Confederation of Trade Unions in June 2004.
6 Zou Zhengzheng, Qin Wei in Population and Economics, June 2001 pp 55-60 (Chinese).