General Overview on Occupational Disease Conditions in China with Special Reference to Silicosis

Parry Leung and Shek Ping-kwan, Hong Kong Christian Industrial Committee
March 2005

Cost paid by migrant workers for rapid the China Economic Miracle

The development of market economy after the launching of the Open Door Policy in 1979 results in massive inflow of foreign direct investment which mainly come from nearby North Asian countries such as Hong Kong, Taiwan and Korea and are concentrated in the labor-intensive, low-skilled and low end sector. While tapping the cheap and abundant supply of labor in China, they also export environmental pollution as well as work injuries and hazards from the home countries to China. The flow in of foreign capital also accelerates the speed of primitive accumulation of local capital. One of the results is the over-rapid and un-regulated development of small-medium private and township enterprises in recent years makes the problem of occupational safety and health a widespread national challenge. The Chinese government describes the phenomenon as the "Three Transfer". Occupational diseases have been transferred from the urban to the rural, from economically more developed to less developed regions, and from developed countries to developing countries.

According to the official statistics released by the State Administration of Work Safety of China in 2004, there are:

• 14,702 safety incidents in the industrial enterprises, trade enterprises and mines. Death toll: 16,497.
• 3,639 safety incidents in coal mines. Death toll: 6,027.
• 2,582 safety incidents in the construction sector. Death toll: 2,789.
• 252,701 flooding incidents. Death toll: 2,557.
• Estimated direct economic loss in relation to work injuries and occupational diseases: RMB10 billion. Indirect economic loss: RMB20 billion.

By 2004, the country has 580,000 accumulated cases of pneumoconiosis. The disease is growing at an alarming rate with an estimated addition of 10,000 cases per year. Since 1949, the accumulated death toll of silicosis exceeds 140,000. The government body estimates that there are more than 16 million enterprises operating under different degree of exposure to toxic materials. Conditions in the township enterprises are worse. According to the China Safety Monitoring News, 15.78% of the township enterprises have been reported for suspected cases of occupational diseases (3 March 2004).

Alarming situation on pneumoconiosis

Pneumoconiosis is the most prominent occupational diseases in China taking up 71% of the reported cases of occupational diseases in 2004. The death rate of pneumoconiosis is higher than that of mine explosions and other work injuries. The Bureau of Hygiene also admits the seriousness of occupational diseases. The local media name places where massive cases have occurred as "Pneumoconiosis villages" and "Toxic villages". Workers that have contracted with occupational diseases and are sent back to their hometowns or villages are plunged into dire economic conditions as they are faced with high medication fee. Others have to struggle hard with their employers for compensation. Cases of workers blocking roads, going on strikes or sending collective petition to various levels of the government become more and more frequent. The problem of occupational diseases especially in regard to the lack of prevention mechanism and proper compensation, has become more and more prominent and visible.

Information about Silicosis in China

• By the end of 2004, there are 580,000 workers having contracted silicosis in China. The number grows by 10,000 every year.
  
• Silicosis is mostly found in the following sectors: gem stone processing, ceramics manufacturing, construction especially tunnel construction, mining.
  
• In terms of region, silicosis is rampant in the following: Guangdong province (gem stone processing), Wenzhou city, Zhejiang province (ceramics manufacturing), Liaoning province (mining).
  
• In 2002, the first collective court case for compensation on silicosis is found in Wenzhou, Zhejiang province. 207 victims took litigation and the court gave ruling on compensation ranging from RMB38,000 to 380,000 and RMB220,000 for deceased families. This case makes record both in terms of the number of plaintiffs involved and the high level of compensation that include continuous medical treatment. However local courts in other provinces may not necessarily take this case for reference in their ruling due to local protectionism

Problems faced by Chinese workers on compensation for occupational diseases

(1) The "collective non-intervention" of the local government bodies

The victims of occupational disease complain most about local government bodies for not implementing laws, turning down the appeals of the workers and on some occasions even siding with the employers to deprive them of their legal right to compensation and protection.

(2) Employers use various means to shake off legal responsibilities

Article 44 of "General Principles of Civil Laws" states that, "In case of separation or merger of enterprise, the rights and responsibilities of the enterprises should be taken up by the legal representative(s) of the changed enterprise." The above article does not apply when employers relocate the factory, change the name of the factory or change the legal representatives in order to avoid legal responsibilities for compensating injured workers. In many cases, the injured workers fail to prove former employment relations when the factory was closed down or relocated.

(3) Procedures in the litigation process are not favorable to migrant workers

3.1 Arbitration

In order to put forth a case to the labour arbitration tribunal, workers have to provide assessment of work ability from authorised bodies. To do so, they have to first provide documents regarding the history of employment. However, migrant workers have a high turnover rate and change jobs frequently. In a lot of cases, they do not have work contracts or proper employment documents. In other cases, the employers simply refuse to provide employment documents. This inhibits migrant workers from taking the first step to claim back their legal rights.

3.2 Long litigation process

In case the arbitration result is not satisfactory, workers can make civil case with the first and middle court. However that may take 3 to 4 years to finish during which, migrant workers are faced with a lot of problems. These include lack of legal aid and huge financial burden both for their families and their own medical treatment.

3.3 The validation time for litigation is too short

The law requires that a plaintiff should put forth a legal case to various level of the local court within a 60-day valid period after receiving work ability assessment results from the authorised bodies. The time taken to go to various hospitals for assessment, and collecting employment records, on top of raising money to do so may take longer than 60 days. Besides, a lot of migrant workers are simply not aware of the 60-day validation period and miss the chance for litigation.

3.4 The compensation scale on silicosis is not clear

The Labour Law, the Prevention of Occupational Disease Law and regulations on work injury insurance provide for compensation to workers having contracted occupational disease. However the compensation scale is provided by local regulations which do not have a clear scale and method of calculation. This gives chance to employers to make use of the legal loopholes to offer private settlement deals to the victims. Worker plaintiffs lack bargaining power and legal reference to claim for higher compensation. In many cases, they may just accept the deal only to find later that it is not enough to cover long term continuous treatment. The government has to provide new regulations on clear compensation scale and mandatory implementation.

3.5 Upgrading work injury insurance for deteriorating conditions

According to Article 28 of the Regulation on Work Injury, "Within one year after the release of the work ability assessment result, the injured worker, the immediate family, the employment unit or the authorised assessment body may demand for re-assessment of work ability if deteriorating conditions are proved." The worker may be liable to upgraded work injury insurance if they provide proof about further loss of work ability due to deepening of silicosis in this case. The employer and the local social security bureau should adjust the insurance and compensation payment accordingly. However at present it is not clear who should pay for upgraded work injury insurance in case of termination of employment relation. The worker has to take the case to court again for arbitration. This means at present the law only provide occupational disease and injured workers with lum-sum compensation. There is no regulation and implementation methods to demand employers or the local social security bureau to pay victims for continuous medical treatment.