Not touring in Hong Kong: three Mainland workers resort meeting Hong Kong capitalists for silicosis compensation

By M. C. Lai, Hong Kong Liaison Office of IHLO and ICFTU
Feb 2005

Three semi-precious stones processing factory workers are exhausted lingering the bureaucracy for years to claim their rights of silicosis compensation. Advancing to the last stage of silicosis, the workers understand the life will be ending within two to three years at their earlier forties. They make the last resort to meet the Hong Kong employers, present them the missing element of the made profit. It is the first time of Mainland workers take fight in the territory for workers' rights. This live and dead stories reflects the problems of the existing bureaucracy and laws in China.

"I'm the breadwinner of the family. The aged mother is too old to farm and two children are too young to work. The family has to rely on my wife's small income and loans to survive. Now I'm indebted with RMB60,000 (~USD7,200). I must fight back the compensation because the illness is caused by work. The employer cannot deny the responsibility." Li Wei-zhong told the unionists and labour activists in the meeting. Li is 42 year old, has 4 years of service, lost 30 kilo since contract silicosis.

"The company moved and changed its name from Shenzhen to Huizhou in 1997. When I filed the case in Shenzhen court. The court refuses the case upon no such a factory in the municipality, as the Huizhou court also refuse to hear a case beyond the jurisdiction. The 60-day rule of filing period again is the reasons for the labour bureau and court to reject certification and compensation of occupational disease. We are very exhausted in these three years getting the documents to fulfill the requirements of labour bureaus and courts. We, the Shenzhen factory workers do not get any compensation from the employer up to the present moment. I have been in the factory for five years. In 1996 I took a sick leave to home upon a prolong flu. I was diagnosed TB in the local hospital and had no sign of cure after two and a half year medication. Finally I am certified silicosis. The employer is benefited from our labouring. He should be responsible to our health." Yang Renping, aged 39, a precious stone cutting worker.

In 2001 and 2002, 46 workers from the Lucky Gems and Jewelry Factory Ltd. were diagnosed as suffering from silicosis, an incurable lung disease. The factory is one of the largest processors of the semi-precious stones in Asia. Its plant has been operating since 1984. Yang Renping reports there were only three electric fans in the dust filled stone cutting department where he was unable to see the colleagues at the end. Workers were not given proper personal protective equipment of facemasks and earplugs. Huizhou Lucky Gems was fined 150,000 yuan by the Huizhou government for violation of the health and safety standard.

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The workers - mostly migrant ex-farmers - now diagnosed with silicosis, can no longer perform heavy labour work, or even return to farming in their home provinces.

"Many of us are illiterate and absent of legal knowledge. Some received RMB20,000 to 80,000 (USD2,400 to 9,600) settlement from the employer and went home. Some got RMB200,000 (USD24,000) which was ruled out recently by the court. We are said illegible for the claim because of having no employment status in Huizhou." Said Li Wei-zhong.

Loopholes in laws and regulations

The Hong Kong Factory owner Wang Sheng-hua reported that he had already abided by the court order and by government procedures. " I will follow everything the court asks me to do and I have done my utmost already", wrote an interview with the South China Morning Post, 21 September 2004. The law is written for the well-beings for the workers but in reality, workers can not benefit from the law because of the lacks in the implementation.

Factory relocation, deprivation of workers identity

Huicheng District Labour and Social Security Bureau refused to give Yang Ren-ping and two other Lucky Gem workers industrial injury certification. The bureau stated the three striken workers did not have employment relations with Huizhou Lucky Gems. In fact, the victims had worked for Lucky Gems when it was in Shenzhen for some five years but did not follow the factory to Huizhou. Yang then filed a complaint with the Shenzhen Longgang District Labour Dispute Arbitration Committee. However, the Committee also refused to handle the case, claiming that the Committee cannot take up a case when factory in question has moved out of Shenzhen and its business licence is expired.

After the three workers failed in their first attempts at bringing the case to the arbitration committee, Yang pursued the application for industrial injury in the Shenzhen Longgang District People's Court. He had been diagnosed as having silicosis by Occupational Disease Prevention Hospital of Guangdong Province on 12 March 2003. The court accepted Yang and other two workers had de facto employment relations with the Shenzhen Lucky Gems and Jewellery Factory Ltd. (the full name is the Shenzhen Longgang Ping Wu Pei Nu Kan Lucky Jewelry Factory Ltd.) for some 5 years. However the Court refused his claim as they argued that it was not filed within the 60 day filing period. The Court also ruled that Yang had no employment relations with one of the defendants, the Shenzhen Longgang Ping Wu Pei Nu Kan Villagers Committee, the co-partner of Hong Kong Lucky Gems to run Shenzhen Lucky Gems. The Shenzhen Lucky Gems and Huizhou Lucky Gems refused to attend the hearing to provide information on Yang's employment status. Ultimately the Court rejected the case.

Yang appealed the decision with the Shenzhen Intermediate People's Court. The court considered Yang had filed his initial application to Shenzhen Longgang Labour Dispute Arbitration Committee on 12 May 2003 and as such Yang did not violate the 60 day filing period from date the silicosis was diagnosed. However, Yang was judged as having no employment relationship with the Shenzhen Longgang Ping Wu Pei Nu Kan Lucky Jewelry Factory Ltd. The Court pointed out the factory name on his work permit (1993-1995) was Lucky Gems and Jewellery Factory Ltd. Given that there was no evidence to equate Lucky Gems with the defendant Shenzhen Gems, the appeal was refused.

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Double standard of government departments causing workers round and round

According to the Occupational Disease Prevention Law (2002), in order to receive occupational disease certification from the local government, workers need to produce medical diagnosis proof of the occupational disease from the Occupational Disease Prevention Hospital. Seven Lucky Gems workers with silicosis got the diagnosis proof from the Occupational Disease Prevention Hospital in the native place of Sichuan and Hunan after they went for medical treatment. However, the proof was not recognized by the Shenzhen and Huizhou local government. In order to meet requirement of local government, victims have to surrender extra cost and time for the recognized diagnosis proof from Guangdong Provincial Occupational Disease Prevention Hospital. Under such circumstances, it is unlikely to have checks and balance on the Hospital when it is intervened to put the workers rights aside. In fact, the Law stipulates that such medical proof can be issued by either the province where the workplace located or the home town of the worker concerned.

Until now, two workers are dead from the illness. More than two third workers got compensation in the private settlement which is certainly less than the court's rule. All workers are denied of "continuous treatment fees", including the necessary medical checkups, hosipality and prolong medication. Three workers have not received a yuan yet. However, with the four day protests launched in Hong Kong, the Lucky Gem employer promised to compensate and a meeting is fixed for negotiating the terms and amount in Huizhou after the Chinese New Year.

Looking forward

Silicosis cases are widely reported in the gem and jewellery factories of Dongguan, Panyu, Huidong, Huizhou and Heifeng etc. More factories are planning to move to the more remote marginal areas where law enforcement is more relaxed.

With poor occupational health and safety awareness, workers will be vulnerable to pay off live and health for daily bread. We are looking forward to responsible employers to provide safe and healthy working conditions, immediate medical treatment and compensation to victims. No progressive steps will be carried out unless State government takes initiative to improve and enforce the law as the workers weapon to defend rights to occupational health and safety.

Silicosis cases are reported widespread in the gems and jewelry factory of Dongguan, Panyu, Huidong, Huizhou and Heifung etc. More factories are envisioned to move to the marginal remote areas where law enforcement is relaxed by government departments. With poor occupational health and safety awareness, workers will be vulnerable to pay off live and health for daily bread. We are looking forward to responsible employers to provide safe and healthy working conditions, immediate medical treatment and compensation to victims. No progressive steps will be carried out unless State government takes initiative to improve and enforce the law as the workers weapon to defend rights to occupational health and safety.

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Remark: After a series of campaign taken place in Hong Kong, in March 2005, the boss of Lucky Gems Factory finally agreed to compensate the five victims, including Li Wei-zhong and Yang Ren-ping, who were still fight for compensations. The compensation amount was around USD24,000 per victim.