Rapport intérimaire - Rapport No. 380, Octobre 2016

1. 193. The complaint is contained in a communication dated 15 February 2016 from the International Trade Union Confederation (ITUC). The ITUC provided additional information in a communication dated 10 October 2016.
2. 194. The Government sent its observations in communications dated 24 May and 26 October 2016.
3. 195. China has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 196. In its communications dated 15 February and 10 October 2016, the ITUC alleges that on 3 and 4 December 2015, seven advisers/paralegals from four labour support organizations in Guangzhou City, Guangdong Province, namely Mr He Xiaobo, Mr Zeng Feyiang, Mr Meng Han, Ms Zhu Xiaomei, Mr Deng Xiaoming, Mr Peng Jiayong and Mr Tang Huanxing (also known as Tang Jian) were arrested and detained in a coordinated sweep. In addition, the ITUC believes that Mr Chen Huihai, director of the Haige Labour Services Centre, was placed under surveillance by the public security authorities for several days and was forced into hiding. According to the ITUC, on 8 June 2016, four activists, Mr Zeng Feiyang, Ms Zhu Xiaomei, Mr Tang Huanxing and Mr Meng Han were officially charged for assembling a crowd to disturb public order. Three were sentenced on 26 September 2016. Mr Meng Han remains the only one still in prison (see table below).

   • 	Name		Date of the arrest		Charge		Organization
     1.	Mr He Xiaobo		4.12.2015 Released on bail on 7.04.2016 pending further investigation of up to 12 months		Embezzlement		Director, Nan Fei Yan Social Service Centre
     2.	Mr Zeng Feyiang		4.12.2015 On 8.06.2016 formally charged with assembling a crowd to disturb public order. Sentenced to 3 years on 26.09.2016; sentence suspended for 4 years		Gathering a crowd to disturb social order		Director, Panyu Workers’ Centre
     3.	Mr Meng Han		4.12.2015 On 8.06.2016 formally charged with assembling a crowd to disturb public order; remains in prison		Gathering a crowd to disturb social order		Staff, Panyu Workers’ Centre
     4.	Ms Zhu Xiaomei		4.12.2015 On 8.06.2016 formally charged with assembling a crowd to disturb public order. Sentenced to 1 year 6 months on 26.09.2016; sentence suspended for 2 years		Gathering a crowd to disturb social order		Coordinator, Panyu Workers’ Centre
     5.	Mr Deng Xiaoming		4.12.2015 Released on bail on 1.02.2016pending further investigation of up to 12 months		Gathering a crowd to disturb social order		Staff, Haige Labour Services Centre
     6	Mr Chen Huihai		3.12.2015 Under surveillance until 7.12.2015.		Gathering a crowd to disturb social order		Director, Haige Labour Services Centre
     7.	Mr Peng Jiayong		4.12.2015 Released on bail on 1.02.2016 pending further investigation of up to 12 months		Gathering a crowd to disturb social order		Coordinator, Guangzhou Labour Solidarity Network
     8.	Mr Tang Huanxing (also known as Tang Jian)		3.12.2015 On 8.06.2016 formally charged with assembling a crowd to disturb public order. Sentenced to 1 year 6 months on 26.09.2016, sentence suspended for 2 years		Unspecified		Former staff, Panyu Workers’ Centre

     >
2. 197. The ITUC indicates that these advisers and paralegals, through their respective organizations, have been working for the respect of domestic and international labour rights in China. As a result, they have been subject to repressive measures by the Government including arrest, detention, interrogation, seizure of documents and computers, surveillance at home and office and verbal and physical harassment. The ITUC believes that the charges levelled against them are not genuine but are intended to intimidate them and, by extension, the workers and worker organizations they have supported.
3. 198. The complainant provides the following details on the eight labour advisers.
4. 199. Mr He Xiaobo came to Guangzhou as a migrant worker from Henan province over 15 years ago. He lost three fingers in an occupational accident and received paralegal assistance from the Panyu Workers’ Centre, which he joined as a volunteer and then as staff. In 2007, he founded the Nan Fei Yan Social Work Service Centre in Foshan District, which was officially registered in 2012, to offer paralegal services to migrant workers in industrial injuries and occupational disease disputes. Mr He was arrested by the public security authority near his home on 4 December 2015. He was not allowed to see his wife and was denied access to his lawyer. On 8 January 2016, his wife and lawyer filed a complaint. On the same day, his wife received an arrest warrant issued by the municipal public security authority, which indicated that he was arrested on suspicion of “embezzlement”. The ITUC explains that “embezzlement” is not a criminal charge under the Criminal Code and the arrest warrant did not specify the provision of the law allegedly violated. The ITUC believes that the charge refers to section 271 of the Criminal Code. Mr He’s wife was also informed that her husband had signed an agreement to forego his right of legal representation at the detention centre. The ITUC questions this claim. However, if truly signed, the ITUC believes it was done under duress.
5. 200. Mr Zeng Feiyang is a graduate of South China Normal University Law School and is the founder and current director of the Panyu Workers’ Centre in Panyu District of Guangzhou City – the first labour NGO in southern China. There he provided legal services to migrant workers and training on labour law and social security. In 2012, Mr Zeng was awarded by Nanfang Metropolitan Daily for his charitable services. Mr Zeng faced increasing pressure including assaults and office raids by unknown thugs after his organization’s active intervention in a number of strikes and unfair dismissal cases of elected workers’ representatives. The Centre’s business registration was cancelled by the authorities in 2007. On 22 December 2015, Xinhua and CCTV News attacked Mr Zeng in a lengthy report accusing him of receiving funding and support from foreign organizations to provoke labour strikes. He was arrested on 4 December 2015 on the charges of “assembling a crowd to disturb public order” and is detained at the Guangzhou Detention Centre 1. Mr Zeng had been denied the right to see the lawyer until 8 June 2016 when he received the indictment. The lawyer had been assigned by the police. Mr Zeng met the lawyer hired by his family on 29 June and 4 July 2016 and passed a message to his family that he had not violated the law and had not done anything wrong. On 11 July 2016, the lawyer was shown a copy of a letter dated 8 July 2016 with Mr Zeng’s signature purporting to refuse to see the lawyer his family had hired. Moreover, threats and harassment on Mr Zeng’s family escalated when in April 2016, his mother filed a lawsuit against the Xinhua News Agency for an article accusing Mr Zeng of embezzlement. His parents were threatened by unknown persons, claiming to be form the national security, to withdraw the lawsuit.
6. 201. Mr Meng Han works at the Panyu Workers’ Centre. In August 2013, when working at the Guangzhou Chinese Medical Hospital as an outsourced security guard, he and the cleaning workers demanded the hospital authority to negotiate their social insurance with the contracting company. While months-long protest ended with compensation to the cleaning workers, 12 security guards who rejected the settlement were arrested. Mr Meng was among those prosecuted for disturbing public order. He was sentenced to nine months of imprisonment in April 2014. He was later released and joined Panyu Workers’ Centre as an organizer. He was arrested on 4 December 2015 for “assembling a crowd to disturb public order”. Mr Meng met his lawyer on 1 March 2016 but already on 10 April 2016, the prosecutor, claiming that it was the decision of the national security branch, prevented the lawyer from visiting the accused. On 18 August 2016, the police delivered to Mr Meng’s lawyer a termination letter signed by Mr Meng. The lawyer believed his client was forced to do so as Mr Meng told him the day before that his family was under a lot of pressure. On 27 June 2016, Mr Meng was still claiming that he was innocent and rejected the public security’s request to accuse the other detained colleagues. Furthermore, Mr Meng’s parents were regularly harassed by unknown thugs. On 28 March 2016, unknown persons carrying iron rods went to his parents’ apartment to threaten them to move. The police also threatened the landlord to request his parents to move out and leave Zhongshan city. Since the beginning of May, the power and water supply of their apartment was cut and on 7 May, unknown persons came to their apartment and smashed the door with an axe. The neighbours were also threatened when they tried to come to the rescue.
7. 202. Ms Zhu Xiaomei worked for 15 years at Hitachi Metals factory in Guangzhou and was promoted to the level of supervisor. She was sacked in 2014 after supporting the rank and file workers in their efforts to bargain collectively to extend social insurance coverage to the whole workforce. She took the company to arbitration court for unfair dismissal and won, after which she was recruited to work as the coordinator at Panyu Workers’ Centre. Ms Zhu was arrested on 4 December 2015 for “assembling a crowd to disturb public order” and was released on bail on 1 February 2016. In court, Ms Zhu was represented by a lawyer assigned under pressure.
8. 203. Mr Chen Huihai was a senior jewellery worker at Panhua Jewellery factory from 2000 to 2012. He joined Panyu Migrants Centre as a volunteer in 2003 and served as the management board member and project coordinator from 2008 to 2014. Mr Chen advised jewellery workers in Panyu in a number of labour disputes and founded a new NGO to assist workers in strikes and pressing the employers for collective negotiation. He is currently the director of Haige Labour Services Centre based in Guangzhou City. On 3 December 2015, Mr Chen sent a text message saying that he was under surveillance by the public security authority. On 7 December 2015 he reported himself “free” via social media without revealing further details.
9. 204. Mr Deng Xiaoming worked in a factory in Zhongshan City of Guangdong Province after dropping out of high school. He was compensated for his industrial injury with the assistance of Panyu Workers’ Centre in 2012 and after that became a volunteer and later a full-time staff for the Centre’s outreach service in Zhongshan City. Mr Deng joined Haige Workers’ Centre in 2014. He was arrested and detained on 4 December 2015 on charges of “assembling a crowd to disturb public order” and released on bail on 1 February 2016 pending further investigation, which can take up to 12 months.
10. 205. Mr Peng Jiayong was elected by fellow workers as a bargaining representative in an industrial dispute at the French-owned Zhongshan Gallic Industries Co. Ltd. He was dismissed and lost the suit against the employer for unfair dismissal. Afterwards, Mr Peng joined Panyu Workers’ Centre and was active in labour rights advocacy and was a liaison officer of strike leaders under the labour solidarity network he formed. Since 2012 he is the Coordinator of Guangzhou Labour Solidarity Network in Guangzhou City. He was arrested on 4 December 2015 on charges of “assembling a crowd to disturb public order” and later released on bail.
11. 206. Mr Tang Huanxing (aka Tang Jian) worked at Panyu Workers’ Centre in 2014 and was active with a number of civil rights groups in Guangzhou City. Mr Tang was reported missing by his colleagues on 3 December 2015. He was able to send a message to his friends on 31 January 2016 reporting that he had been released at the end of January and had returned to his home town in Jianxi Province. He explained in the message that he had been taken away by the public security forces on 3 December 2015 and detained for questioning.
12. 207. The ITUC further provides the following information on the individual and collective labour conflicts in which the advisers named above participated (sorted by organization).

Panyu Workers’ Centre

Guangzhou Shatou District Sanitation Workers’ Strike (October–November 2015) Participants: Zeng Feiyang and Zhu Xiaomei

1. 208. The Shatou Sanitation Workers’ dispute began in October 2015 when their employer announced that they would have to resign and start working, as of November 2015, in another district, about 10 kilometres away. The workers went to the Panyu Workers’ Centre for assistance. Staff helped the workers to organize and elect bargaining representatives. On 21 October 2015, the workers’ representatives informed the company and the local government that the workers would not voluntarily resign and that the company was legally required to pay them a compensation for the termination of their contracts. When the company did not respond, the workers decided to take collective action. On 27 October 2015, the workers gathered at the entrance to the Shatou refuse collection station chanting “no more agency labour, give us our severance pay” and “we love Shatou, we want to work here”. This protest got the attention of the local authorities, which met with the workers’ elected representatives and the employer’s representatives the following day. On 28 October 2015, about 30 workers gathered outside the meeting room in a gesture of solidarity with their elected representatives. During the bargaining session, the employer repeated its demand that the workers relocate to another district without compensation. The worker representatives rejected this demand. The local officials present at the meeting were sympathetic to the workers’ position and in the afternoon they announced that the new local contractor, Qiaoyin Co. would take on all the existing Shatou workers. After further discussion, the representatives reached a preliminary agreement to terminate the workers’ existing contracts and pay compensation of one month’s salary for every year of service, based on actual take home pay. Under the agreement, more than six months’ service would be calculated as one full year, and less than six months would be calculated as half a year. The deal was accepted by the workers who then agreed to return to work. However, the employer unilaterally announced the terms and conditions of the settlement rather than jointly signing a formal agreement with the workers. This prompted another protest by the workers who demanded that the settlement be jointly signed and based on the negotiated agreement. Eventually, however, the workers did agree to accept the employer’s “announcement”.

Lide Shoe Factory Workers’ Strike (August 2014–May 2015) Participants: Zeng Feiyang, Zhu Xiaomei, Meng Han and Tang Huanxing

1. 209. Panyu Lide Shoes Co. Ltd. employs about 2,750 workers, which produce leather goods for brands. In the summer of 2014, the company’s workers heard about plans to relocate the factory the following year to another site about an hour from Panyu. In August 2014, around 20 worker activists started to organize their fellow workers and sought assistance from the Panyu Workers’ Centre. Their initial demands focused on the payment of social insurance and housing fund arrears. Management responded in November 2014 by forcing employees to sign new labour contracts with fraudulent dates shortening their length of service. On 6 December 2014, workers in one department went on strike and soon the whole factory was brought to a standstill. Workers held an employee conference to elect 11 negotiators and 50 representatives. After some progress in negotiations, management announced a deal limiting lump-sum compensation payments. The workers went on strike again on 15 December 2014. After management agreed to more concessions, the strikers returned to work on 17 December 2014. Three days later, Mr Zeng Feiyang was attacked in his office by unknown assailants. The attack is believed to be related to the centre’s involvement in the dispute. Because the management continued to stall on its relocation plans, a group of around 100 activists meet to discuss strategy in April 2015, and elected 19 new representatives. Police attempted to break up the meeting and detained Panyu Centre staff member Mr Meng Han. Several workers were reportedly beaten or briefly detained by police. Workers went on strike once again on 20 April 2015. Negotiators met with the management and demanded the timely resolution of all outstanding grievances including social insurance and housing fund arrears, as well as the relocation compensation based on length of service. Local government officials attended the meeting and promised to facilitate future dialogue between the workers and the management. On 22 April 2015, the management promised to address workers’ grievances but workers demanded a formal written statement or signed agreement. Workers also helped to release Panyu staffer Mr Meng, who had been held under house arrest. The company and the local government issued a joint-statement promising to address all of the workers’ demands. On 25 April 2015, the workers agreed to call off the strike. In its communication dated 10 October 2016, the complainant underlines that the collective actions staged at the factory were peaceful, that negotiation meetings between workers and the management took place and that the local government and official trade unions played a role in mediation and reaching resolutions which were agreed upon between management and workers.

Guangzhou University Town Sanitation Workers Strike (August–October 2014) Participants: Zeng Feiyang, Zhu Xiaomei, Meng Han, Deng Xiaoming, Peng Jiayong and Chen Huihai

1. 210. In August 2014, more than 200 sanitation workers in the University Town district of southern Guangzhou were faced with the prospect of either being laid off by the GrounDey Property Management or moving with the company to another part of the city. The company’s street cleaning contract was due to expire on 1 September 2014 and the company announced that it would not seek to renew it. The employees were concerned about two key issues: firstly, getting fair and reasonable severance pay, and secondly, getting guarantees from the local government that the company taking over the cleaning contract for University Town would hire the entire existing workforce. The workers demanded talks with the company to resolve their grievances but were rebuffed. As a result, they approached Panyu Workers’ Centre for assistance. The Panyu Centre gave the workers strategic advice and helped them to elect representatives to lead and carry their campaign forward. On 23 August 2014, the workers elected 18 representatives, including three treasurers to manage their campaign funds. The workers again demanded that the company meet them face to face to discuss their grievances. The company refused and on 26 August 2014 the workers went on strike, attracting a lot of attention on social media. Many members of the public visited the strikers and voiced their support. Eventually, local government officials came out to meet the striking workers and offered to mediate but the workers insisted on direct face-to-face bargaining with the company. The local government then arranged and chaired a collective bargaining meeting that took place on 2 September 2014. The meeting was attended by five of the workers’ representatives, two consultants from the Panyu Workers’ Centre and around 20 local government officials from various departments. Some 200 workers gathered outside the bargaining venue in support. After several hours of negotiation, the company offered employees a severance package of 1,000 yuan for every year of service. A week of negotiations between the workers and the local government (representing the company) followed, after which the company finally agreed to pay each worker 3,000 yuan for each year of service, plus social security and housing fund contributions in arrears, or an estimated total payment of 3 million yuan. The workers agreed to the settlement but immediately encountered problems when they signed on with the new contractor, Suicheng Construction and Property Co. Ltd, which refused to hire elderly employees or those without a local household registration. The move was seen by workers as an attempt by the construction company to get rid of those it considered troublemakers. Many of the workers representatives were originally from the neighbouring province of Hunan. Despite living in Guangzhou for many years, none of them had been granted a Guangzhou household registration. Eventually, the construction company did agree to hire all the workers but it took several weeks for the two sides to negotiate a new employment contract and for all the workers to sign it. The last group of workers signed their contracts on 12 October 2014.

Liansheng Moulding Factory: Demand for a wage increase (June–October 2013) Participants: Chen Huihai, Zeng Feiyang and Deng Xiaoming

1. 211. More than 300 workers at the Liansheng moulding factory in Guangzhou went on strike on 28 June 2013 to demand an increase in take home pay in line with the local minimum wage. On 3 July 2013, the company signed a collective wage agreement that ensured the pay increase. However, some 100 workers continued to push the company to address the wider issues of equal pay for equal work and the discriminatory practice of giving lucrative overtime allocations to those employees who had a good relationship with the management. The company refused to negotiate with the democratically elected representatives, and the local government refused to accept the legitimacy of these representatives. The workers then went to the nearby Panyu Centre to discuss their options. The centre was instrumental in organizing workers to join a peaceful protest within the factory compound, as well as petitioning at government and trade union offices. The workers also started to post reports on social media and share real-time information with each other on instant messaging platforms. In October, under pressure from the local government as well as the workers, the company compromised and signed a collective agreement that ensured that departing workers received an acceptable severance package.

Haige Labour Services Centre

Cuiheng Bag Factory dispute (March–April 2015) Participants: Peng Jiayong (currently with Guangzhou Labour Solidarity Network), Chen Huihai and Deng Xiaoming

1. 212. About 200 workers at the Japanese-owned Cuiheng bag factory in Zhongshan City of Guangdong Province went on strike in mid-March demanding better pay, social security and housing fund contributions, year-end bonuses and other benefits. After a week on the picket line and no response from the management, workers reached out to Mr Chen Huihai for help and advice on 22 March 2015. Mr Chen and his colleagues aided workers in the election of their representatives and the submission of a collective bargaining demand. Management rejected negotiations, sacked the workers’ representatives and called the police. Several hundred riot police arrived and hauled away 26 workers, four of whom were detained for more than ten days. Many other workers were injured. When a group of volunteers from Haige Labour Services Centre visited one of the workers who had been hospitalized, two of them were approached by plain-clothed police and interrogated. An altercation ensued and one of the volunteers, Mr Peng Jiayong, was beaten so severely that he was hospitalized with a lumbar disc protrusion. On the way to the local police station the next morning to report the attack on Mr Peng, Mr Chen and his three other colleagues were attacked. As Mr Chen was parking his car, a man wearing a motorcycle helmet threw two bricks at the car. One narrowly missed Mr Chen’s head, the other hit Zhu Xinhua, a workers’ representative from another factory on the arm. The attacker jumped on a waiting motorbike and escaped. There were several police officers at the scene but they made no attempt to pursue the attacker. The attack was reported through social media and around 20,000 yuan were spontaneously raised for Mr Peng’s medical expenses.

Tongxin Jewellery workers’ strike (June–October 2014) Participants: Chen Huihai, Deng Xiaoming and Peng Jiayong

1. 213. A two-month-long strike by 59 workers at Tongxin Jewellery in Foshan city ended on 27 August 2014 after the management finally made concessions during negotiations with the elected representatives of workers. The company promised to pay social security and housing fund contributions and to compensate for not taking annual leave. Both sides agreed to continue discussions over the payment of a higher basic salary during the low season. Mr Chen and the team advised the workers to pursue collective negotiation to resolve the dispute and the elected representatives to secure the support of the provincial federation of trade unions of Guangdong and the municipal federation. Both federations took part in the mediation to bring the management to the negotiating table. On 20 October 2014, Foshan Federation of Trade Unions reacted further to the workers’ request to investigate and improve the union representation of the enterprise trade union at Tongxin factory.

Nan Fei Yan Social Work Service Centre

1. 214. Nan Fei Yan Social Work Service Centre advocates for migrant workers’ rights and provides paralegal aid to injured and sick workers in Foshan city. It was formally registered at the Bureau of Civil Affairs in 2012. Injured workers and those who have contracted occupational diseases are organized to form and run mutual aid groups to receive labour law education, organize hospital visits to victims and families and take part in policy advocacy. Nan Fei Yan provides paralegal aid to these workers to claim compensation, provides hotline service for cases of industrial accidents, advocates for legislative reforms on occupational safety and health, social insurance, criminal liability of employers and set-up of a public compensation fund for the injured and sick workers. Nan Fei Yan and Mr He Xiaobo have been awarded by the local government for the labour services provided to migrant workers. However, Nan Fei Yan has been repeatedly attacked over the years. On 14 October 2014, Nan Fei Yan called a press conference to release joint research with another NGO and Foshan University on the education of the children of the migrant workers of Foshan city. The research found a much lower admission rate of migrant children in public schools than the official statistics claimed (37 per cent according to civil groups’ statistics, and 70 per cent according to the official data). Mr He was summoned by the Bureau of Civil Affairs the next day accusing him of using misleading information. On 1 May 2015, a photo exhibition of injured workers was co-organized by Nan Fei Yan. It was called off by the authorities. Three offices of Nan Fei Yan were threatened with termination of government projects, forced relocation and forced closure. In June 2015, the Bureau of Internal Affairs gave Nan Fei Yan a “bare pass” in its annual audit, claiming that the organization had undertaken unauthorized activities. Mr He believed it was related to the organization’s involvement in occupational injury and disease cases. Organizations registered under the Bureau of Civil Affairs are subject to the annual audit of their activities and finances and could risk deregistration if they get a “bare pass” twice. In July, Nan Fei Yan’s projects approved or funded by the Bureau were suspended or terminated. Accused of conducting “illegal operations”, the migrant library of Nan Fei Yan at Shunde District was ordered to close down by the authorities. The landlord of the migrant library at Zu Miao Road was pressured to terminate the land contract with Nan Fei Yan. The library was the major venue to host labour law consultations, provide paralegal aid to workers in disputes and had been frequently visited by workers in injury cases since 2008. On 12 August 2015, the Bureau of Civil Affairs informed Nan Fei Yan of re-audits of its finances from 2012 to 2014. On 23 August 2015, Mr He filed for disclosure of information at the Bureau of Civil Affairs for the bureau’s ground for re-audits. On 8 September 2015, the Bureau of Civil Affairs rejected Mr He’s application for information disclosure. On 23 August 2015, the work injury labour law seminar with migrant workers at the Shunde migrant library was disrupted by the authorities. Water and electricity supplies were cut. On 15 September 2015, the Social Organisation Management Bureau of Foshan City informed Mr He of a complaint as to financial discrepancies of Nan Fei Yan from 2012 to 2014 and a re-audit of the organization’s 2012 and 2013 finances. Mr He told the press that these measures were intended to force Nan Fei Yan to give up labour and migrant rights advocacy and prepare for the passage of the Foreign NGO Management Law.
2. 215. Nan Fei Yan assisted migrant worker Mr Yang Tong Xiao to win the first tort claim litigation on 30 October 2015 against his employer FuRi Construction Material Company in Sanshui district of Foshan city for not providing employees with social insurance for his work injury. This is a precedent in China, providing for better compensation to victims and the dependents.
3. 216. Since 2005, workers in Foshan Hao Xin Precious Metals Jewellery Co. Ltd began to contract silicosis. It took ten years (up to 2015) to have 176 workers complete the occupational disease certification. More than 250 others have or are suspected of having the disease. In 2010, the company agreed to pay a compensation package to the certified silicosis workers and concluded another settlement with other sick workers to cover their medication for the next 30 years. The workers, especially those still waiting for the certification, were worried about the enforcement as the company was planning to relocate to another site. From 2010 onward, the sick workers gathered themselves to protest against the company and petition the Government. This led to clashes with the police. In the protest they took on 29 December 2010, 18 of them were put under administrative detention from five to ten days by the police for blocking the traffic. The latest clash took place on 17 January 2016 when the sick workers learned that the company was closing down for business reasons. Some 18 protesting silicosis workers were detained for up to ten days. Nan Fei Yan provided paralegal assistance to Hao Xin workers on work injury certification and to ensure implementation of their compensation settlement with the company.
4. 217. In its communication dated 10 October 2016, the ITUC alleges that Ms Zhu, Mr Zeng and Mr Tang were convicted for assembling a crowd to disturb public order under section 290 of the Criminal Code. This charge arises from their role in the work stoppages at Lide Shoe Factory between December 2014 and April 2015. According to the complainant, the prosecutor claimed that the work stoppages were “illegal” on the ground that production at the factory was disrupted incurring “serious” economic loss (of RMB2.7 million) to the company. The Government claimed that the three activists were the “ringleaders” who led the workers to block the entrance and traffic.
5. 218. Furthermore, according to the ITUC, section 290 of the Criminal Code can and is being used to impose a ban on public protest and collective workplace action by criminalizing the organizers and participants on reason of public order.
   • Section 290: In cases where crowds are assembled to disturb public order with serious consequences; where the process of work, production, business, teaching, and scientific research are disrupted; and where serious losses have been caused, the ringleaders are to be sentenced to not less than three years but not more than seven years of fixed-term imprisonment; other active participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights. Assembling crowds to attack state organs, thus disrupting their operations and causing serious losses, the ringleaders are to be sentenced to not less than five years but not more than 10 years of fixed-term imprisonment; and other active participants are to be sentenced to not less than five year of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.
6. In the complainant’s view, the law on its face and in its application pose a serious risk to the exercise of freedom of association. The ability to be prosecuted for engaging in a peaceful action that may lead to economic losses is an obvious infringement of the principle of freedom of association.
7. 219. The ITUC recalls that section 290 was used in April 2014 to sentence 12 security workers at Guangzhou Chinese Medical Hospital for the three-month long work stoppage in 2013, in which the Panyu Migrant Centre was involved (and where Mr Zeng, Ms Zhu, Mr Tong and Mr Meng worked). That work stoppage and others activities, including labour organizing and training activities, were used as evidence by the prosecutor in court against the four activists. Specifically, they were accused of sharing cases and showing videos of work stoppages in other factories with Lide workers, assisting workers to draft their demands for negotiation with the management, establishing a solidarity fund for contributions to support their activities, and facilitating the election of 61 worker representatives and 13 negotiation representatives for bargaining with the management.
8. 220. According to the complainant, the prosecutor argued “illegal” operation of Panyu Migrant Centre (which was de-registered in 2007) and “illegal” labour activism (wei-chuan) that Panyu Migrant Centre and its staff promoted. The four labour advisors were accused of instigating collective action and ignoring the legal dispute resolution procedures and mediation of government officials. Under certain duress, the three activists pleaded guilty and made “confessions” in court in exchange for suspended sentences. The ITUC considers that the fact that they are now out of prison does nothing to lessen the fact that they have suffered and continue to suffer a serious violation of their freedom of association. While not certain, it is likely that they will be unable to provide any further service to workers during the pendency of their suspended sentences or risk imprisonment.
9. 221. The ITUC concludes by stating that the Government has violated the principles of freedom of association when it arrested and detained worker advocates and interfered in their respective organizations’ activities, as it deprived workers and their organizations of their right to organize their activities – in particular to obtain legal and professional advice on effective collective action. The ITUC also alleges that none of the cases of harassment suffered by the relatives of the accused were investigated by the police. The Government’s actions created a chilling effect in that cognizant of the consequences faced by their advocates, workers will be less likely to exercise their rights. Further, as detailed in two cases above (Cuiheng Bag Factory, Lide Shoes Co. Ltd.), the Government violated the rights of workers’ freedom of association when the police intervened in industrial disputes, which led to physical assaults and arrests of workers and their advocates. The ITUC stresses that the fact that those arrested and detained by the authorities were not trade unionists in an industrial dispute is irrelevant in determining whether the right to freedom of association has been violated. It points out that the Committee has previously found that the right to freedom of association can be violated when the retaliation is aimed at the supporters of workers and refers to Case No. 2189 (China), concerning the heavy prison terms for two activists acting on behalf of workers and the detention and mistreatment of an independent labour activist involved in the industrial dispute; Case No. 2528 (Philippines), concerning violence inflicted on leaders, members, organizers, union supporters/labour advocates of trade unions and informal workers’ organizations; and Case No. 2566 (Islamic Republic of Iran), concerning pervasive intimidation and harassment of the Iranian trade unionists and human rights activists who showed solidarity with Farzad Kamangar. The ITUC considers that the arrest of advisers and paralegals violates the freedom of association of Chinese workers in that they are hindered in the exercise of their right to freedom of association and are further subject to a chilling effect in seeing the state repression aimed at their advocates for supporting them in their activities.

The Government’s reply

1. 222. In its communication dated 24 May 2016, the Government indicates that it has conducted thorough investigations into the allegations in this case and provides the following information. Mr Zeng Feiyang (41 years old), Mr Meng Han (51 years old), Mr Tang Huanxing (45 years old), Ms Zhu Xiaomei (36 years old), Mr Peng Jiayong (40 years old) and Mr Deng Xiaoming (22 years old) used to be members of Panyu Workers’ Document-Processing Service Centre. The registration of the Service Centre was revoked by the commercial and industrial administration authority in 2007. As it has not since registered with any administrative department, the Service Centre is currently an illegal organization. During the period from December 2014 to April 2015, the abovementioned six persons mobilized a part of workers of Lide Shoes Factory of Panyu, to engage in work stoppages three times, which led to the mass gathering of people and eventually, disruption of public order. On 20 April 2015, several hundreds of workers of the factory blocked the entrance, denied access of transport vehicles and stopped other workers from going to normal work by blocking stairs, threatening and verbally abusing them. The abovementioned six persons were accused of the crime of gathering people to disrupt public order and thus put under criminal detention on 4 December 2015 by Panyu Branch of Guangzhou Public Security Bureau, Guangdong Province.
2. 223. On 8 January 2016, Guangzhou municipal prosecution authority approved the arrest of Mr Zeng, Mr Meng, Mr Tang and Ms Zhu for the alleged crime of gathering people to disrupt public order and allowed Mr Peng and Mr Deng to obtain a guarantor pending trial according to the provisions of article 290 of the Criminal Law. On 20 January and 1 February 2016, the prosecution authority allowed Mr Tang and Ms Zhu to obtain a guarantor pending trial. On 7 March 2016, with the approval of Guanzhou Municipal Procuratorate, the time limit of being held in custody during investigation after arrest for Mr Zeng and Mr Meng was extended for one month for the first time, in conformity with the legislation in force. On 7 April 2016, with the approval of Guanzhou Municipal Procuratorate, the time limit of being held in custody during investigation after arrest for Mr Zeng and Mr Meng was extended for two months for the second time, in conformity with the legislation.
3. 224. The Government further explains that Mr He Xiaobo (41 years old) was put under criminal detention on 4 December 2015 by the Foshan Branch of Guangzhou Public Security Bureau for the alleged crimes of embezzlement, misappropriation and holding forged invoices. On 8 January 2016, pursuant to sections 271, 272 and 210 of the Criminal Law, Foshan prosecution authority approved the arrest of Mr He. On 7 March 2016, with the approval of Guangdong Provincial Procuratorate, the time limit of being held in custody during investigation after arrest for Mr He was extended for one month for the first time. Mr He has been allowed to obtain a guarantor pending trial according to the law.
4. 225. The Government also explains that Mr Chen Huihai is not related to the abovementioned cases and the public security authority of China has not imposed any compulsory measures on him.
5. 226. The Government points out that the public security authority has imposed compulsory measures on Mr Zeng and another six persons not because they had organized and participated in workers’ activities, but because they had engaged in gathering people to disturb public order and other criminal activities and were suspected of violating the provisions of sections 290, 271, 272 and 210 of the Criminal Law, causing damages to the public order and the interests of other citizens. When dealing with these cases, the public security authority has strictly abided by the relevant laws and regulations and safeguarded the legitimate rights of the persons concerned. The seven criminal suspects have had access to health care and maintained good state of health during the period in custody. At the same time, in the spirit of humanitarianism, the public security authority has provided appropriate care to the criminal suspects. Taking into consideration that Ms Zhu, though not in the legally defined lactation period, had a young child to nurse during the period of being held in custody, the public security authority provided a special nursing place for her.
6. 227. The Government informs that these cases are being dealt with according to the law and emphasizes that pursuant to the Constitution and the relevant laws, the Government guarantees that the citizens enjoy freedom of association and safeguards the exercising of their right. According to article 35 of the Constitution, the citizens enjoy freedom of speech, press, assembly, association, procession and demonstration. Section 3 of the Trade Union Law and section 7 of the Labour Law provide that the workers shall have the right to participate in and organize trade unions in accordance with the law. Chapter VI of the Trade Union Law specifies legal responsibilities in case of obstructing workers from participating in or organizing trade unions according to law. Freedom of association is fully safeguarded in China and the trade union organizations play an important role in the enforcement of the labour law, in particular in protecting the rights and interests of workers. However, when exercising the abovementioned rights, workers and their organizations shall abide by relevant laws and regulations of the State, including those on social management, and shall not undermine the normal public order, or damage the interests of other citizens or disrupt the normal production and life of other citizens.
7. 228. By its communication dated 23 October 2016, the Government informs that on 26 September 2016, the court heard the case involving Mr Zeng, Mr Tang and Ms Zhu. According to the Government, after due investigation, the court asserted that during the collective stoppages (on 6, 15-17 December 2014 and 20-25 April 2015), Mr Zeng and others have organized people to block the gate of the company, stop the circulation of vehicles through the gate, cause troubles in the workshops and offices, obstruct the normal work of others and seriously disturb the normal production order of the company. The court held that it was clear that the accused have collectively disturbed the social order. Considering the repentance of defendants and the legally determined situations leading to lighter sanctions, the court sentenced Mr Zeng to three years of imprisonment, with four years of probation, and Mr Tang and Ms Zhu to one year and half of imprisonment, with two years of probation. The defendants pleaded guilty, accepted the sentences, which they would not appeal. According to the Government, the defendants’ rights were duly protected during the trial.
8. 229. Regarding Mr Meng, involved in the same case, the Government informs that after the second supplementary investigation, the prosecutor submitted the case to the court and that the hearing will be held in the near future.

The Committee’s conclusions

1. 230. The Committee notes that the ITUC, the complainant in this case, alleges arrest and detention of seven advisers and paralegals (Mr He Xiaobo, Mr Zeng Feyiang, Mr Meng Han, Ms Zhu Xiaomei, Mr Deng Xiaoming, Mr Peng Jiayong and Mr Tang Huanxing) who have provided support services to workers and their organizations in handling individual and/or collective labour disputes. The ITUC also alleges that Mr Chen Huihai, director of the Haige Labour Services Centre, was placed under surveillance by the police. The complainant indicates that on 8 June 2016, four activists, Mr Zeng Feiyang, Ms Zhu Xiaomei, Mr Tang Huanxing and Mr Meng Han were officially charged for assembling a crowd to disturb public order. Mr Zeng was sentenced to three years of imprisonment; his sentences was suspended for four years. Mr Tang and Ms Zhu were sentenced to one year and six months of imprisonment each; their sentences were suspended for two years. According to the ITUC, Mr Meng Han remains in prison. While Mr Deng and Mr Peng were released on bail on 1 February 2016, they remain under investigation. The ITUC further alleges that the Government interfered in industrial labour disputes by bringing in the police, which led to physical assaults and arrests of workers and their advocates. The Committee notes that in its communication dated 23 October 2016, the Government confirms the sentencing of Mr Zeng, Mr Tand and Ms Zhu and indicates that Mr Meng’s case will be heard in the near future.
2. 231. At the outset, the Committee recalls that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining and that allegations dealing with other matters are outside its competence.
3. 232. The Committee notes the detailed description provided by the complainant on the work and the organizations the eight advisers represent, as well as the cases they were involved in. While according to the information provided by the ITUC, Mr Chen Huihai, Mr Zeng Feyiang, Mr Meng Han, Ms Zhu Xiaomei, Mr Deng Xiaoming, Mr Peng Jiayong and Mr Tang Huanxing appear to be involved in assisting workers in exercising their trade union rights, this does not seem to be the case of Mr He Xiaobo, director of the Nan Fei Yan Social Work Service Centre, which advocates for migrant workers’ rights and provides paralegal aid to the injured and sick workers in Foshan city. While taking note of the allegations involving Mr He with grave concern, unless the complainant provides information pointing to the violation of trade union rights in his specific case, the Committee will not pursue the examination of the case involving Mr He.
4. 233. Furthermore, by way of background to this case, while noting the Government’s statement that freedom of association is guaranteed through the explicit provisions in its Constitution, the Labour Law and the Trade Union Law, the Committee refers to its earlier conclusions in respect of certain significant legislative obstacles to the full guarantee of freedom of association in the country. In particular, in its examination of Case No. 2031 [321st Report, para. 165], the Committee had reiterated its conclusions in two previous complaints presented against the Government of China [see 286th Report (Case No. 1652) and 310th Report (Case No. 1930)], that many provisions of the Trade Union Law were contrary to the fundamental principles of freedom of association and had requested the Government to take the necessary steps to ensure that they were modified. The Committee further recalls that it had previously stressed the importance of the development of free and independent organizations and negotiation with all those involved in social dialogue [Case No. 2189 (330th Report, para. 466)]. It is against this background that the Committee proceeds to examine this case.
5. 234. With regard to the allegation of arrest and detention of seven workers’ advisers, the Committee notes that according to the ITUC, the repressive measures and charges levelled against them are the Government’s retaliation against them for their work in the field of labour rights and are intended to intimidate them, as well as workers and their organizations they have supported. The ITUC further alleges that on 20 December 2014, Mr Zeng was attacked in his office and believes that the attack is related to the Panyu Workers’ Centre in the Lide Shoe Factory dispute. The complainant alleges that in the case of the same dispute, several workers were beaten and detained (including Mr Meng) when the police intervened in the meeting of labour activists in April 2015.
6. 235. The Committee notes that the Government confirms the ITUC allegation that six activists, Mr Zeng Feyiang, Mr Meng Han, Ms Zhu Xiaomei, Mr Deng Xiaoming, Mr Peng Jiayong and Mr Tang Huanxing, were under investigation for the alleged crime of gathering people to disrupt public order. The Government explains that these persons used to be members of Panyu Workers’ Document-processing Service Centre, the registration of which was revoked by the commercial and industrial administration authority in 2007. Being unregistered, the Centre is currently an illegal organization. The Government further explains that during the period from December 2014 to April 2015, the abovementioned six persons mobilized a part of workers of Lide Shoes Factory of Panyu to engage in work stoppages three times, which led to the mass gathering of people and eventually, to the disruption of public order. According to the Government, on 20 April 2015, several hundreds of workers of the factory blocked the entrance, denied access of transport vehicles and stopped other workers from going to normal work by blocking stairs, threatening and verbally abusing them. The abovementioned six persons were accused of the crime of gathering people to disrupt public order and thus put under criminal detention on 4 December 2015 by Panyu Branch of Guangzhou Public Security Bureau, Guangdong Province. The Committee notes that the Government points out that the investigation of workers’ advisers is not related to their participation in workers’ activities, but rather to their engagement in gathering people to disturb public order and other criminal activities and violating sections 290, 271, 272 and 210 of the Criminal Law (causing damages to the public order and the interests of other citizens).
7. 236. The Committee observes that the abovementioned six activists appear to have been arrested, detained and charged for being involved in a labour dispute and considers that the detention of persons 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. The Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests. It further recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para 302 and 651]. The Committee notes that the Government refers to the damages that the gathering caused and to other criminal activities. The Government further indicates that in the case of Ms Zhu, Mr Zeng and Mr Tang, the court found that the defendants have organized people to block the gate of the company, stop the circulation of vehicles through the gate, cause troubles in the workshops and offices, obstruct the normal work of others and seriously disturb the normal production order of the company. In this respect, the Committee notes the complainant’s indication that collective actions staged at the Lide factory were peaceful. The Committee expresses its concern over the heavy sentences, albeit suspended, imposed on Mr Zeng, Ms Zhu and Mr Tang and requests the Government to provide a copy of the court judgment. The Committee further notes the ITUC’s allegation that it was likely that the labour advisors would not be able to provide any further service to workers during the pendency of their suspended sentences or risk imprisonment. It requests the Government to ensure that the three activists can continue providing advisory services to workers without hindrance.
8. 237. Noting the Government’s indication that after the second supplementary investigation in relation to Mr Meng, involved in the same case, the prosecutor submitted the case to the court and that the hearing will be held in the near future, the Committee requests the Government to provide a copy of the court judgement once it has been handed down.
9. 238. The Committee expects that the pending investigations will be concluded without further delay, that they will take into account the principles above and will also shed light on the alleged attack on Mr Zeng on 20 December 2014, the beating and detention of several workers of the Lide Shoes Factory and of Mr Meng in April 2015. The Committee requests the Government to keep it informed in this respect and to provide the court judgments in cases of f Mr Meng Han, Mr Deng Xiaoming and Mr Peng Jiayong and once they have been handed down.
10. 239. The Committee notes the Government’s indication that Mr Chen is not involved in the cases referred to by the complainant and that no compulsory measures have been imposed on him. While understanding that Mr Chen is not being detained, it is nevertheless not clear to the Committee whether Mr Chen has been charged, as other labour advisers, with “gathering a crowed to disturb social order”, as claimed by the complainant. The Committee requests the Government to indicate whether Mr Chen has been charged with “gathering a crowed to disturb social order” and if so, to provide detailed information regarding his case.
11. 240. The Committee further notes the ITUC allegation of police intervention in a labour dispute that occurred at the Cuiheng Bag Factory in March–April 2015 following which four workers were detained for more than ten days and many were injured. Furthermore, according to the complainant, when a group of volunteers from Haige Labour Services Centre visited one of the workers who had been hospitalized, two of them were approached by the police and interrogated. The complainant alleges that an altercation ensued and one of the volunteers, Mr Peng Jiayong, was severely beaten and hospitalized with a lumbar disc protrusion. On the way to the local police station the next morning to report the attack on Mr Peng, Mr Chen and his three other colleagues were attacked. As Mr Chen was parking his car, a man wearing a motorcycle helmet threw two bricks at the car. One narrowly missed Mr Chen’s head, the other hit Zhu Xinhua, a workers’ representative from another factory on the arm. According to the ITUC, the attacker escaped while several police officers present at the scene made no attempt to pursue him. The Committee regrets that no information has been provided by the Government on these alleged incidents. The Committee expects that an independent inquiry will be conducted by the Government into these serious allegations and requests the Government to provide detailed information on its outcome.
12. 241. The Committee notes the allegations of pressure suffered by the relatives of Mr Zeng and Mr Meng and requests the Government to provide its observations thereon.
13. 242. In conclusion, the Committee regrets that the Government has not provided detailed information in respect of the disputes described in the complaint and in reply to the detailed information provided by the complainants concerning the role and activities of the six activists in helping the workers to have their demands met. The Committee is nevertheless encouraged by the information provided by the ITUC on the role of the local authorities in facilitating dialogue between workers and the management of some companies, which led, in some cases, to the resolution of the conflict. The Committee considers that the only durable solution to industrial conflicts such as described in the complaint is through full respect for the right of workers to establish organizations of their own choosing, promotion of collective bargaining and creating of appropriate mechanisms where industrial disputes can be resolved through dialogue [see Digest, op. cit., para. 26].