Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 122) sur la politique de l'emploi, 1964 - Chine (Ratification: 1997)

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Observation

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With reference to its previous comments, the Committee recalls the observations made by the International Trade Union Confederation (ITUC) regarding the application of the Convention by the Government of China, received on 16 and 28 September 2020, and the additional observations made by the ITUC, received on 6 September 2021. The Committee also notes the Government’s reply received on 20 November 2020, which arrived too late to be examined in 2020, as well as the additional information in relation to the observations, provided by the Government in its report on the application of the present Convention, received on 30 August 2021. The Committee further notes elements from the Government’s report on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) which are also relevant to the application of this Convention.

Article 1(1) and (2)(a)–(c) of the Convention. Active policy to promote full, productive and freely chosen employment. Allegations of discrimination and forced labour in the context of the Convention. The Committee refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In the interest of coherence and transparency in its comments, considering both the allegations and the information in reply raise a close connection between employment policy, the free choice of employment of ethnic and religious minorities and their protection against discrimination in employment and occupation, the Committee presents the same synopsis of the information available in both comments.

In its observations of 2020 and 2021, the ITUC alleges that the Government of China has been engaging in a widespread and systematic programme involving the extensive use of forced labour of the Uyghur and other Turkic and/or Muslim minorities for agriculture and industrial activities throughout the Xinjiang Uyghur Autonomous Region (Xinjiang), in violation of the right to freely chosen employment set out in Article 1(2) of the Convention. The ITUC maintains that some 13 million members of the ethnic and religious minorities in Xinjiang are targeted on the basis of their ethnicity and religion with a goal of social control and assimilation of their culture and identity. According to the ITUC, the Government refers to the programme in a context of “poverty alleviation”, “vocational training”, “re-education through labour” and “de-extremification”.

The ITUC submits that a key feature of the programme is the use of forced or compulsory labour in or around “internment” or “re-education” camps housing some 1.8 million Uyghur and other Turkic and/or Muslim peoples in the region, as well as in or around prisons and workplaces across Xinjiang and other parts of the country.

The ITUC indicates that, beginning in 2017, the Government has expanded its internment programme significantly, with some 39 internment camps having almost tripled in size. The ITUC submits that, in 2018, Government officials began referring to the camps as “vocational education and training centers” and that in March 2019, the Governor of the Xinjiang Uyghur Autonomous Region described them as “boarding schools that provide job skills to trainees who are voluntarily admitted and allowed to leave the camps”. The ITUC indicates that life in “re-education centres” or camps is characterized by extraordinary hardship, lack of freedom of movement, physical and psychological torture, compulsory vocational training and actual forced labour.

The ITUC also refers to “centralized training centers” that are no re-education camps but have similar security features (e.g. high fences, security watchtowers and barbed wire) and provide similar education programmes (legal regulations, Mandarin language courses, work discipline and military drills). The ITUC adds that the re-education camps are central to an indoctrination programme focused on separating and “cleansing” ethnic and religious minorities from their culture, beliefs, and religion. Reasons for internment may include persons having travelled abroad, applied for a passport, communicated with people abroad or prayed regularly.

The ITUC also alleges prison labour, mainly in cotton harvesting and the manufacture of textiles, apparel and footwear. It refers to research according to which, starting in 2017, the prison population of Uyghurs and other Muslim minorities increased dramatically, accounting for 21 per cent of all arrests in China in 2017. Charges typically included “terrorism”, “separatism” and “religious extremism”.

Finally, the ITUC alleges that at least 80,000 Uyghurs and other ethnic minorities workers were transferred from Xinjiang to factories in Eastern and Central China as part of a “labour transfer” scheme under the name “Xinjiang Aid”. This scheme would allow companies to: (1) open a satellite factory in Xinjiang or (2) hire Uyghur workers for their factories located outside this region. The ITUC alleges that the workers who are forced to leave the Uyghur Region are given no choice and, if they refuse, are threatened with detention or the detention of their family. Outside Xinjiang, these workers live and work in segregation, are required to attend Mandarin classes and are prevented from practicing their culture or religion. According to the ITUC, state security officials ensure continuous physical and virtual surveillance. Workers lack of freedom of movement, remaining confined to dormitories and required to use supervised transport to and from the factory. They are subject to impossible production expectations and long working hours. The ITUC adds that, where wages are paid, they are often subject to deductions that reduce the salary to almost nothing. ITUC further adds that, without these coercively arranged transfers, Uyghurs would not find jobs outside Xinjiang, as their physical appearance would trigger police investigations.

According to the ITUC’s allegations, to facilitate the implementation of these schemes, the Government offers incentives and tax exemptions to enterprises that train and employ detainees; subsidies are granted to encourage Chinese-owned companies to invest in and build factories near or within the internment camps; and compensation is provided to companies that facilitate the transfer and employment of Uyghur workers outside the Uyghur Region.

In its 2021 observations, the ITUC supplements these observations with information, including testimonies from the Xinjiang Victims Database, a publicly accessible database which as of 3 September 2021 had allegedly recorded the experience of some 35,236 ethnic minority members forcibly interned by the Government since 2017.

The Government states that the right to employment is an important part of the right to subsistence and development, which constitute basic human rights. The Government indicates that, under its leadership, Xinjiang has made great progress in safeguarding human rights and development. It adds that people of all ethnic groups voluntarily participate in employment of their own choice, and that the ITUC has ignored the progress made in economic development, poverty alleviation, improvement of people’s livelihood and efforts to achieve decent work in Xinjiang.

With respect to the ITUC observations in relation to the use of forced labour, the Government emphasizes that these allegations are untrue and politically motivated.

The Government indicates that, pursuant to the Constitution, the State creates conditions for employment through various channels. The Employment Promotion Law (2007) stipulates that workers have the right to equal employment and to choose a job on their own initiative, without discrimination. Under the Vocational Education Law of 1996, citizens are entitled to receive vocational education and the State takes measures to develop vocational education in ethnic minority areas as well as remote and poor areas.

The Government indicates that residents of deeply poverty-stricken areas in southern Xinjiang have suffered insufficient employability, low employment rates, very limited incomes and long-term poverty. It states that eliminating poverty in Xinjiang has been a critical part of the national unified strategic plan to eradicate poverty by the end of 2020. The Government adds that it has eliminated absolute poverty, including in southern Xinjiang, thanks to government programmes such as the Programme for Revitalizing Border Areas and Enriching the People during the 13th Five-Year Plan Period (GUOBANFA No.50/2017) and the Three-Year Plan for Employment and Poverty Alleviation in Poverty-stricken Areas in the four prefectures of southern Xinjiang (2018–2020). The former programme had set development targets for nine provinces and autonomous regions, including Xinjiang, such as the lifting out of poverty of all rural poor and the continuous expansion of the scale of employment combining individual self-employment, market-regulated employment, government promotion of employment and entrepreneurship, and vocational training to increase the employability of workers. The latter programme laid the foundation for the XUAR government to provide dynamic, categorized and targeted assistance to people with employment difficulties and families where no one is employed, and create structured conditions for people to find jobs locally, to seek work in urban areas, or to start their own businesses.

The Committee also notes the Government’s assertion in its white paper on employment and labour rights in Xinjiang (2020) that it is finding “new approaches to eradicating poverty”. In its report, the Government indicates that its poverty eradication approach effectively prevents and strikes out at terrorism and extremism, and at the same time maintains social stability and improves people’s lives, with its impoverished population and poverty incidence markedly reduced. The Government expresses the view that Xinjiang has put into practice the “relevant policy measures of the national government” to implement the Decent Work Country Programme for China (2016–2020), thus ensuring “that people from all ethnic groups work in a decent environment with freedom, equality, safety, and dignity”. The Government further presents the view in its white paper on respecting and protecting the rights of all ethnic groups in Xinjiang that Xinjiang has provided “dynamic, categorized and targeted assistance to people with employment difficulties and zero-employment families so as to ensure that each family has at least one member in work”. Workers’ job preferences are fully respected, and “structured conditions” have been created for people to find jobs locally, to seek work in urban areas, or to start their own businesses. While promoting employment, Xinjiang guarantees “legitimate labour rights and interests in accordance with the law”.

The Government reports that the task of relocating the poor for the purpose of poverty relief has been completed, and that the production and living conditions of poor people have been greatly improved: the poverty incidence rate in the four poverty-stricken prefectures of Xinjiang dropped from 29.1 per cent in 2014 to 0.21 per cent in 2019. Between 2014 and 2020, the total employed population in Xinjiang grew from 11.35 million to 13.56 million, representing an increase by 19.4 percent. In the same period, an average of 2.8 million urban job opportunities were provided annually to the “surplus rural workforce”.

The Government is firm in its view that it fully respects the employment wishes and training needs of Xinjiang workers, including ethnic minorities. The Xinjiang Government regularly conducts surveys of labourers’ willingness to find employment and keep abreast of their needs in terms of employment location, job positions, remuneration, working conditions, living environment, development prospects and training needs. These surveys demonstrate that more urban and rural “surplus” workers hope to go to cities in northern Xinjiang or other more developed provinces and cities in other parts of the country, which offer higher wages, better working conditions and a better living environment. Ethnic minorities count on the government to provide more employment information and other public employment services to their members. The fact that ethnic minority workers go out to work is entirely voluntary, autonomous and free. According to the Government, the Three-Year Plan for southern Xinjiang explicitly refers to the “willingness for employment” and states that the wishes of individuals “who are unwilling to work due to health and other reasons” shall be fully respected, and that they will never be forced to register for training.

The Government stresses that language training for ethnic minority workers in Xinjiang is necessary to increase their language ability, and enhance their employability, and does not deprive them of the right to use their own language.

The Government also replies to the ITUC allegations that the Uyghur and other ethnic minorities in Xinjiang are not paid the applicable local minimum wage, indicating that the Labour Law of the People’s Republic of China stipulates that the minimum wage system applies across the country, although minimum wage standards may vary across administrative regions. As of 1 April 2021, the minimum wage in Xinjiang is divided into four grades: 1,900 yuan, 1,700 yuan, 1,620 yuan and 1,540 yuan. The Government considers reports that the wages of some migrant workers in Xinjiang are as low as US$114 (approximately 729 yuan) per month to be groundless, stating that the overwhelming majority of this information is taken from individual interviews and lacks clear sources of data or statistical information. In addition, the Government points out that the reports do not fully clarify whether the workers concerned are working less than the statutory working hours, in which case they would be paid less. The Government states that by going out to work, the actual income of many people is much higher than the minimum wage of Xinjiang.

The Government also reports that the local government of Xinjiang has put in place labour inspection systems for protecting the rights and interests of workers and addressing their reports and complaints concerning wage arrears, failure to sign labour contracts and other infringements. The Government indicates that it will take steps to further strengthen the supervision and inspection of employer compliance with minimum wage provisions, call on employers to respect the minimum wage standards and address violations.

The Government provides detailed information on its laws, regulations and policies regarding freedom of religion; equality among the 56 ethnic groups in China and for consolidating and developing unity between and within these groups.

The Government also replies to the ITUC allegations that the restrictions on the free choice of employment are aimed at alienating ethnic and religious minorities from their religion, culture and beliefs. It reports that China adopts policies securing freedom of religious belief; manages religious affairs in accordance with the law; adheres to the principle of independence from foreign countries and self-management; and actively guides religions to adapt to the socialist society so that religious believers may love their country and compatriots, safeguard national unity, ethnic solidarity, be subordinate to and serve the overall interests of the nation and the Chinese people. The Law of the People’s Republic of China on the Administration of Activities of Overseas Non-Governmental Organizations within China prohibits overseas NGOs from illegally engaging in or sponsoring religious activities. China’s Criminal Law, National Security Law, and Counter-Terrorism Law provide for the protection of citizens’ freedom of religious belief. The Counter-Terrorism Law of the People’s Republic of China states that China opposes all extremism that seeks to instigate hatred, incite discrimination and advocate violence by distorting religious doctrines or through other means, and forbids any discriminatory behaviour on the grounds of region, ethnicity and religion. The Regulations on Religious Affairs prohibit any organization or individual from advocating, supporting or sponsoring religious extremism, or using religion to undermine ethnic unity, divide the country, or engage in terrorist activities. According to the Government, China takes measures against the propagation and spread of religious extremism, and at the same time, carefully avoids linking violent terrorism and religious extremism with any particular ethnic group or religion.

The Committee takes due note of the ITUC allegations, the response and additional information provided by the Government and the various employment and vocational training policies as articulated in various recent “white papers” referred to by the Government in its report and other legal and policy documents referred to by United Nations human rights experts.

The Committee recalls that the Convention’s objective of promoting full employment does not require ratifying States to guarantee work for all who are available for and seeking work, nor does it imply that everyone must be in employment at all times (2020 General Survey on promoting employment and decent work in a changing landscape, paragraph 54). The Convention does, however, require ratifying States to promote freedom to choose one’s employment and occupation, as well as equal access to opportunities for training and general education to prepare for jobs, without discrimination on the basis of race, colour, national origin, religion or other grounds of discrimination covered under Convention No. 111 or other international labour standards such as the Vocational Rehabilitation and Employment (Disabled Persons) Convention, (No. 159).

In this context, the Committee notes that training facilities that house the Uyghur population and other Turkic and Muslim minorities separate them from the mainstream educational and vocational training, vocational guidance and placement services available to all other groups in the region throughout the country at large. Such separation may lead to active labour market policies in China being designed and implemented in a manner that generates coercion in the choice of employment and has a discriminatory effect on ethnic and religious minorities. Photographs of the facilities, equipped with guard towers and tall surrounding walls topped with barbed wire further reinforce the observation of segregation. The Committee has observed before that some workers from ethnic minorities face challenges in seeking to engage in the occupation of their choice because of indirect discrimination. For example, biased approaches towards the traditional occupations engaged in by certain ethnic groups, which are often perceived as outdated, unproductive or environmentally harmful, continue to pose serious challenges to the enjoyment of equality of opportunity and treatment in respect of occupation (general observation on Convention No. 111, 2019). The Committee addresses other aspects of the particular system for vocational training and education aimed at the de-radicalization of ethnic and religious minorities in its comment on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

The Committee recalls that, while the Convention requires ratifying States to declare and pursue as a major goal an active policy designed to promote full, productive and freely chosen employment with the objective of stimulating economic growth and development and meeting manpower requirements, employment policy must also promote free choice of employment by enabling each worker to train for employment which can subsequently be freely chosen, in accordance with Article 1(2)(c) of the Convention.

Article 1(2)(c) provides that the national employment policy shall aim to ensure that “there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he or she is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin”. In its 2020 General Survey on promoting employment and decent work in a changing landscape, paragraphs 68–69, the Committee noted that “the objective of freely chosen employment consists of two elements. First, no person shall be compelled or forced to undertake work that has not been freely chosen or accepted or prevented from leaving work if he or she so wishes”. Second, all persons should have the opportunity to acquire qualifications and to use their skills and endowments free from any discrimination. Moreover, the Committee recalls that the prevention and prohibition of compulsory labour is a condition sine qua non of freedom of choice of employment (2020 General Survey, paragraph 70).

The Committee notes the Government’s statement that the ITUC observations are based on individual statements and are unsubstantiated; however, it notes that the ITUC observations also append additional sources containing statistical data; references to first-hand testimonies, testimonies of eyewitnesses, family and relatives; research papers; and photographs of vocational training and education centres.

The Committee also notes that, on 29 March 2021, a number of United Nations human rights experts (including Special Rapporteurs and thematic working groups mandated by the UN Human Rights Council) expressed serious concern with regard to the alleged detention and forced labour of Uyghur and other Turkic and/or Muslim minorities in Xinjiang. The UN experts indicate that Uyghur workers have been held in “re-education” facilities, with many also forcibly transferred to work in factories in Xinjiang. They further indicate that Uyghur workers have allegedly been forcibly employed in low-skilled, labour-intensive industries, such as agribusiness, textile and garment, automotive and technological sectors.

The Committee recognizes and welcomes the strong commitment of the Government to the eradication of poverty. However, it is the Committee’s firm view that poverty eradication and the realization of the right to work to that end encompasses not only job placement and job retention but also the conditions under which the Government executes such placement and retention. The Convention does not only require the Government to pursue full employment but also to ensure that its employment policies do not entail any direct or indirect discriminatory effect in relation to recruitment, conditions of work, opportunities for training and advancement, termination, or any other employment-related conditions, including discrimination in choice of occupation.

The Committee is of the view that at the heart of the sustainable reduction of poverty lies the active enhancement of individual and collective capabilities, autonomy and agency that find their expression in the full recognition of the identity of ethnic minorities and their capability to freely and without any threat or fear choose rural or urban livelihoods and employment. The obligation under the Convention is not to guarantee job placement and retention for all individuals by any means available but to create the framework conditions for decent job creation and sustainable enterprises.

The Committee takes due note of the view expressed in the Government’s report that “some forces recklessly sensationalize the so-called “forced labour” issue in Xinjiang on various occasions”, adding that this is “nothing but a downright lie, a dirty trick with ulterior motives”. The Committee is bound to observe, however, that the employment situation of Uyghurs and other Muslim minorities in China provides numerous indications of coercive measures many of which arise from regulatory and policy documents.

The Government’s references to significant numbers of “surplus rural labour” being “relocated” to industrial and agricultural employment sites located inside and outside Xinjiang under “structured conditions” of “labour management” in combination with a vocational training policy targeting de-radicalization of ethnic and religious minorities and at least in part carried out in high-security and high-surveillance settings raise serious concerns as to the ability of ethnic and religious minorities to exercise freely chosen employment without discrimination. Various indicators suggest the presence of a “labour transfer policy” using measures severely restricting the free choice of employment. These include government-led mobilization of rural households with local townships organizing transfers in accordance with labour export quotas; the relocation or transfer of workers under security escort; on-site management and retention of workers under strict surveillance; the threat of internment in vocational education and training centres if workers do not accept “government administration”; and the inability of placed workers to freely change employers.

The Committee urges the Government to provide detailed updated information on the measures taken or envisaged to ensure that its national employment policy effectively promotes both productive and freely chosen employment, including free choice of occupation, and effectively prevents all forms of forced or compulsory labour. In addition, the Committee requests the Government to take immediate measures to ensure that the vocational training and education programmes that form part of its poverty alleviation activities focused in the Uyghur Autonomous Region are mainstreamed and delivered in publicly accessible institutions, so that all segments of the population may benefit from these services on an equal basis, with a view to enhancing their access to full, productive and freely chosen employment and decent work. Recalling that, under the Employment Promotion Law (2007) and the Vocational Education law (1996), workers have “the right to equal employment and to choose a job of their own initiative” and to access vocational education and training, respectively, the Committee asks the Government to provide detailed information on the manner in which this right is effectively ensured, particularly for those belonging to the Uyghur minority and other Turkic and/or Muslim minorities. The Government is also requested to provide detailed information, including disaggregated statistical data, on the nature of the different vocational education and training courses offered, the types of courses in which Uyghur minorities have participated, and the numbers of participants in each course, as well as the impact of the education and training on their access to freely chosen and sustainable employment.

Article 3 of the Convention. Consultation. The Committee requests the Government to indicate the manner in which representatives of workers and employers organizations were consulted with respect to the design, development, implementation, monitoring and review of the active labour market measures being taken in the Uyghur Autonomous Region. In addition, and given the focus of the active labour market measures on the Uyghur and other Turkic/Muslim minorities, the Committee requests the Government to indicate the manner in which the representatives of these groups have been consulted, as required under Article 3.

The Committee is raising other matters in a request addressed directly to the Government.