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2020 | OriginalPaper | Chapter

3. The Chinese Enforcement System

Author : Kai Liu

Published in: Protection of Health and Safety at the Workplace

Publisher: Springer Singapore

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Abstract

In this chapter, I will discuss enforcement of the health and safety rules. In this context, enforcement refers to the powers to control, to supervise, to start legal procedures, to give orders to enterprises, and to impose penalties in case of workplace parties’ violations of health and safety rules. There has been a major increase of enforcement efforts by the Work Safety Administration in recent years. Although enforcement agencies are the main promoters of, and active participants in, enforcing the occupational health and safety rules, there is lack of a single and comprehensive public agency that deals with occupational health and safety issues.

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Footnotes
1
Liu, pp. 8–9.; Q Wang, ‘The Status of the Work Safety Law’, in Modern Occupational Safety (In Chinese).
 
2
The agencies affiliated with the State Council are one sort of administrative agencies of the State Council. See the first section of the Article 6 Regulations on Administration of the Establishment and Staffing of the Administrative Agencies of the State Council, China, State Council, 1997. The administrative agencies of the State Council are, pursuant to their functions, divided into the General Office of the State Council, the constituent ministries and commissions of the State Council, the agencies affiliated with the State Council, administrative offices of the State Council, the State agencies administrated by the constituent ministries or commissions of the State Council and the deliberation and coordination agencies of the State Council.
 
3
The Safety Work Standards Making and Amending Regulation stipulates the safety work standard making proceedings, including Drafting, Asking For Opinions, Standard Examination For Approval, and Promulgation and Record. See, Safety Work Standards Making and Amending Regulation, China, State Administration of Work Safety, 2006.
 
4
Under the WSL, the State Administration of Work Safety is accorded the authority to promulgate legally enforceable OHS standards (see Article 10 Work Safety Law).
 
5
See: ‘New Authority Focuses On Emergency Response’, the English Website of The State Council Of The People's Republic Of China, http://​english.​www.​gov.​cn/​state_​council/​ministries/​2018/​03/​30/​content_​281476095337420.​htm [accessed 20 March 2020].
 
6
More information on the detailed history of the transfer can be found on the official website of the State Administration of Work Safety.
 
7
Its responsibilities include: to guide and coordinate the examination and inspection of national work safety; to qualify and supervise the social agencies that provide tests and examinations, safety appraisals, safety training, safety consulting for industrial, mining, and commercial enterprises; to organise and guide education on national work safety, and take charge of safety training and assessment for work safety supervisors and coal mine safety supervisors; to organise, guide and supervise, in accordance with the law, the assessment of workers from specially identified industries (excluding the operators of special equipment) and for the safety qualification of enterprises’ chief administrators and safety supervisors; to supervise and inspect enterprises' work safety training; to supervise the work safety of the industrial, mining, commercial enterprises that are under the charge of the central government, and supervise the performance of such enterprises in implementing related work safety laws and regulations; to organize and carry out international exchange and cooperation with foreign governments, international organizations and NGOs in respect of work safety. See the Main duties of the State Administration of Work Safety. Available at the official website of the Chinese government: http://​english1.​english.​gov.​cn/​/​2005-10/​20/​content_​80534.​htm.
 
8
The Provisions on the Supervision And Administration of Occupational Health On Site, which came into force on 1 June 2012; Zhang [1] and Faure and Zhang [2].
 
9
Wang, pp. 79–110.
 
10
See State Administration of Work Safety, ‘Office II’, http://​www.​chinasafety.​gov.​cn/​newpage/​jgzz/​jg2s/​jg2sind.​htm [accessed 1 November 2015].
 
11
Dangerous chemicals include explosives, compressed gas and liquefied gas, inflammable liquids, inflammable solids, self-igniting articles and articles inflammable in humid environment, oxidants and organic peroxides, toxicants and corrosives, etc., According to Article 3 in Regulations on the Safety Administration of Dangerous Chemicals, China State Council, 2002.; In listing the dangerous chemicals, the List of Dangerous Goods (GB12268) was promulgated by the State Council.
 
12
See the function description over the Office III, see: State Administration of Work Safety, ‘Office III’, 2013, http://​www.​chinasafety.​gov.​cn/​newpage/​jgzz_​jg3s_​ind.​htm [accessed 1 April 2020].
 
13
See the function description over the Office IV: State Administration of Work Safety, ‘Office IV’, http://​www.​chinasafety.​gov.​cn/​newpage/​Contents/​Channel_​5325/​2008/​0807/​12580/​content_​12580.​htm [accessed 1 April 2020].
 
14
See the function description over the Occupational Disease Administration, available at: State Administration of Work Safety, ‘Occupational Disease Administration’, http://​www.​chinasafety.​gov.​cn/​newpage/​Contents/​Channel_​5325/​2008/​0807/​12581/​content_​12581.​htm [accessed 1 April 2020].
 
15
See the function description over the Planning and Research department: State Administration of Work Safety, ‘Planning and Research department’, http://​www.​chinasafety.​gov.​cn/​newpage/​Contents/​Channel_​5325/​2008/​0807/​12584/​content_​12584.​htm [accessed 1 April 2020].
 
16
Wang, pp. 79–110.; Liu [3].
 
17
Wang chronically describes the high level causalities in Chinese coal mine industry. He argues, the Chinese coalmine industry is ‘extremely high-risk’ industry, as its million tons death rate (MDR) is 160 times compared to US, 60 times to South Africa, and 10 times to India. See: Wang, pp. 79–110.
 
18
See the official website ‘State Administration of Work Safety’, http://​www.​chinasafety.​gov.​cn/​newpage/​ [accessed 1 April 2020].
 
19
Brown, p. 112.
 
20
See: State Administration of Work Safety, ‘Report on the Status Quo of Local Safety Inspecting Authorities 2018’, 2019, http://​www.​chinasafety.​gov.​cn/​newpage/​Contents/​Channel_​6532/​2019/​0305/​178451/​content_​166302.​htm [accessed 29 March 2020]. (In Chinese).
 
21
Zhou, pp. 78–81.
 
22
China Safety Production Yearbook is an annual compilation of statistical information about the safety production issues, scripts of state officials speeches in this field, major accident cases, and updates of OHS laws and regulations. See: ‘China Safety Production Yearbook’, http://​old.​chinasafety.​ac.​cn/​nj/​index.​htm [accessed 1 April 2020].
 
23
For example Greece, Denmark, France, Germany, see: International Labour Organization [4].
 
24
In Finland the majority of labour inspectors possess specialized skills in specific fields, such as mine industry, mine chemistry, or mine technology. See: International Labour Organization, p. 66.
 
25
The government of Greece indicates that almost one-third of its labour inspection staff consists of university graduates. See: International Labour Organization, pp. 66–67.
 
26
In Denmark, the inspection team includes technical advisers and specialists in psychology, ergonomics, pharmacology and physiotherapy. See: International Labour Organization, pp. 66–67.
 
27
See generally International Labour Organization.
 
28
See: State Administration of Work Safety, ‘Report on the Status Quo of Local Safety Inspecting Authorities 2018’. (In Chinese).
 
29
See: State Administration of Work Safety, ‘Report on the Status Quo of Local Safety Inspecting Authorities 2018’. (In Chinese).
 
30
Ibid.
 
31
Article 56 (1) Work Safety Law.
 
32
Stellman [5].
 
33
Article 56 (1) Work Safety Law.
 
34
Article 3 Regulation on Mine Safety Inspection, China, State Council, 2000.
 
35
Belgium, France, the Federal Republic of Germany and the United Kingdom, among others. See: International Labour Standards Concerned with Labour Inspection: Main Provisions, Geneva, 1991, pp. 19–70.
 
36
Liu and Xie [6].
 
37
Zhou, pp. 37–43.
 
38
Examples of the former are found in laws of countries such as Honduras and the Czech Republic, while examples of the latter exist in Peru and Saudi Arabia. In the Czech Republic, under Section 12 State Control Act, the inspector is required to present the employer with written authorisation. See International Labour Organization, pp. 85–86. In Peru, the administration labour authority may request court authorization to provide access to a workplace, under Section 2 of Act No. 28292 of 20 July 2004 to amend the General Act on labour inspection and defence of the worker. See International Labour Organization, p. 85. In Saudi Arabia, labour inspections are subject to a judicial authorisation. See: International Labour Office, pp. 78–81.
 
39
See Article 7 Regulations on Managing Mining Safety Inspectors, China, State Council, 2003.: Mine safety inspectors by virtue of their documents has the right, within the scope of responsibility, to enter workplace for the purpose of conducting inspection, participate in relevant meetings held by mining enterprises, to have access to, extract and copy the relevant materials, as well as to investigate the issues by interrogating relevant units and persons.
 
40
Article 9 Work Safety Law.
 
41
Article 54 Work Safety Law.
 
42
Article 53 Work Safety Law.
 
43
Article 54 Work Safety Law.
 
44
Article 54 Work Safety Law.
 
45
Article 54 Work Safety Law.
 
46
Article 56(3) Work Safety Law.
 
47
Article 57(1) Occupational Diseases Prevention and Control Law.
 
48
In the case that the density of gases, dusts, and other poisonous natural gases at mining site exceed state standards or mining industry proprietary standards, mining inspector might stop production. In the case that management refuses to comply with the production-stop order, the inspector might impose production suspension for consolidation and monetary fine up to 100,000 Chinese Yuan on the mining enterprise. See Article 42 Regulation on Mine Safety Inspection.
 
49
The essence of security coal pillars is to provide enough strength against apprehensions of spalling in order to secure the stability of workings. See: Sarkar [7].
 
50
In case of exploring mines safety pillar, or using dangerous methods such as water bursting, blasting, and breaking through roadways, which may threaten the production safety of adjacent mine sites, the mine site should stop production immediately after mine safety inspector order it so. Mine safety inspectorate can decide to revoke the coal production license of the mine enterprise, pursuant to law, if its management refuses to stop production in an immediate fashion. If this refusal constitutes a crime, criminal liabilities shall be investigated in accordance with law. See Article 43 Regulations for the Implementation of the Mine Safety Law.
 
51
When mining safety inspectorate observes the following situations, he can execute Stop Work Authority in an immediate fashion: (1) special explosion-proof electrical equipment is not used; (2) dedicated blasters are not used; (3) special vessel personnel lifting is not used; (4) open fires or unprotected lights are used. The mine employer should be allowed an adequate amount of time to remedy the situation. Only if the violation is corrected within the allowed time, the production activity can resume. See Article 26 Regulations for the Implementation of the Mine Safety Law.
 
52
Article 26 Regulations for the Implementation of the Mine Safety Law.
 
53
De Baets [8].
 
54
If a factory, mine, forestry centre, construction enterprise or other enterprise or institution whose labour safety facilities do not conform to the state's stipulations fails to take measures to hidden peril of the accident after relevant departments, or staff members or workers of relevant units put forward a demand, and thereby causes a serious accident involving injury or death or other serious consequences, persons directly in charge shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially flagrant, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years. See Article 135 Criminal Law, China, National People’s Congress, 1997.
 
55
If a factory, mine, forestry centre, construction enterprise or other enterprise or institution whose labour safety facilities do not conform to the state's stipulations fails to take measures to hidden peril of the accident after relevant departments, or staff members or workers of relevant units put forward a demand, and thereby causes a serious accident involving injury or death or other serious consequences, persons directly in charge shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially flagrant, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years. See Article 135 Criminal Law.
 
56
Article 56 Regulations for the Implementation of the Mine Safety Law. Executives of mining enterprises should face administrative sanction or, in the cases where severe and reflect manifest unwillingness are found, criminal prosecution by the prosecutor, if they conduct any of the following behaviors:
(A)
Conduct production command against relating labour standards or force workers illegal, dangerous operations;
 
(B)
Show intentional omission or negligence with acknowledgement of the workers repeated operations that is of inconsistence with concerning operational standards or regulations;
 
(C)
In case of signs of major accidents being detected or high risks of major accidents being observed, take no measures or take measures not in a timely fashion;
 
(D)
Fail to implement directives from labour inspectorate.
 
 
57
Article 93 Labour Law. Criminal responsibilities shall be fixed upon the persons in charge in accordance with law if the employer forces labourers to venture to work against regulations and as a result cause major accidents of injuries and deaths and serious consequences.
 
58
Any responsible person of a mining enterprise who gives command in violation to established regulations and compels workers to carry out operations at risks, thus causing accidents involving serious causalities, shall be investigated for criminal responsibilities in accordance with the provisions of Article 114 Criminal Law. See Article 46 Law on Safety in Mines.
 
59
Any responsible person who fails to take measures with respect to hidden dangers of accidents in a mine, thereby causing accidents involving serious causalities, shall be investigated for criminal responsibilities by applying mutatis mutandis the provisions of Article 187 Criminal Law.
 
60
See Article 44 Regulation on Mine Safety Inspection.
Mine director or other management personnel shall be given a warning by the mine safety inspectorate, or in case of occurrence of serious consequences and as such violating criminal law shall be held criminally responsible in line according to criminal law, if mine accidents are caused by their misconducts as follows:
(A)
Conduct production command against relating labour standards or force workers illegal, dangerous operations;
 
(B)
show intentional omission or negligence with acknowledgement of the workers repeated operations that is of inconsistence with concerning operational standards or regulations;
 
(C)
In case of signs of major accidents being detected or high risks of major accidents being observed, take no measures or take measures not in a timely fashion;
 
(D)
fail to implement directives from mine labour inspectorate or mine labour inspector.
 
 
61
See Article 43 Regulation on Mine Safety Inspection. If mine enterprise exploits mine safety pillar, or take use of dangerous methods that threaten neighbouring coal mine production safety, including water filling, improper blasting, dangerous tunnel mining operations, etc., and moreover refuse to stop the above operation after mine safety inspectors order them to do so, should be revoked the license of coal production by coal mine safety inspectorate. If the above operation and refusal constitutes a crime, the enterprise be held criminally responsible and shall be liable for compensation if losses arise from this.
 
62
Feng [9].
 
63
Wei [10].
 
64
In case of mine accidents, the labour inspectorate is mainly responsible for the investigation. In case of investigation based on a (posted) worker’s complaint, the investigation is exclusively conducted by the labour inspectorate and the complaint is always treated as confidential, put in differently words, the labour inspector is bound to secrecy, unless the complainer gives his content. See: Zhang [11].
 
65
Zhang, pp. 107–110.
 
66
English website of the National Health and Family Planning Commission: http://​en.​nhfpc.​gov.​cn/​.
 
67
Song et al. [12].
 
68
Zhang et al. [13].
 
69
The above functions are well documented in Brown’s research. See: Ronald C. Brown. Understanding Labour and Employment Law in China. Cambridge University Press, 2010, pp. 113-114; It should be noted that at the time of Brown’s writing, the Ministry of Health still existed. It is not surprising that the functions that were listed above are accorded to the Health Ministry in his book. As the ministry is now already dissolved and its functions integrated into the new agency the National Health and Family Planning Commission, it is arguable that the above listed functions are responsible for by the Commission in the field of occupational health.
 
70
In the context of the institutional setup of the National Health and Family Planning Commission, the Disease Prevention and Control Bureau is an principal organ of the Commission, overseeing its sub-organs, including Disease Monitoring And Evaluation Office, Infectious Disease Prevention And Control Office, Immunization Program Management Office, AIDS Prevention and Control Office, Tuberculosis Prevention And Control Office, Endemic Disease Prevention and Control Department, Chronic Disease Prevention And Control Office, Mental Health Department, Patriotic Health Work Office (a propaganda office), and Occupational Health and Radiation Health Administration, which is responsible for occupational disease prevention and control. See the official website: ‘National Health and Family Planning Commission’, http://​www.​nhfpc.​gov.​cn/​jkj/​pjgsz/​lm.​shtml [accessed 1 April 2020].
 
71
See Article 8 Occupational Diseases Prevention and Control Law.
 
72
Wang [14].
 
73
See the official website, ‘Chinese Center of Disease Control and Prevention’, <www.​chinacdc.​cn> [accessed 1 April 2020].; Shucheng Wang.
 
74
Winder and Stacey [15].
 
75
Wang examines the OHS enforcement system, and argues that in total eleven departments are to a varying extent involved in occupational OHS law enforcement. See: Wang [16]; Liu, pp. 62–63. (In Chinese).
 
76
The Ministry of Housing and Urban-Rural Development is a ministry, which is the primary authority that provides housing and regulations the state construction activities in China. It was formerly known as the Ministry of Construction until the 2008 State Council administration reorganisation. See the official website: ‘Central People’s Government of the People’s Republic of China’, http://​www.​gov.​cn/​fwxx/​bw/​jsb/​ [accessed 1 April 2020].
 
77
Shang et al. [17].
 
78
See State Council (China), ‘Notice Of State Council Departments’ Responsibilities Concerning Occupational Health Supervision’, 2010, http://​www.​scopsr.​gov.​cn/​once/​gzdt/​201010/​t20101019_​15188.​htm [accessed 1 April 2020].
 
79
Bemelmans-Videc et al. [18].
 
80
Zhang et al. [19].
 
81
US congress also held this viewpoint in legislating the Occupational Safety and Health Act and other relating legislations designed to identify and to correct such hazards, or ‘imminent dangers,’ expeditiously and before tragic workplace injuries could result. See: Lopez et al. [20].
 
82
Hu [21] and Yan et al. [22].
 
83
Hu, pp. 41–42.
 
84
See Chapter 6 Labour Law.
 
85
Qin [23].
 
86
See Chapter 5 Occupational Diseases Prevention and Control Law.
 
87
See Chapter 4 Work Safety Law.
 
88
Zhan and Kong, pp. 59–65.; Yu [24].
 
89
For example, in the coal mine inspection, the inspectors are required to access to underground mine shaft to inspect for example whether air quality is in compliance with safety standards, considering mainly the three aspects: (1) air quality with respect to oxygen content, (2) the amount of noxious gases underground. and (3) the amount of explosive gases contained. see the news report article posted on the official website of the state administration: see ‘Dongliang Yang (Director of the Work Safety Administration) Requires: Work Safety agencies at all level should mandate the inspectors to inspect underground mine shaft’, in State Administration of Work Safety, http://​www.​chinasafety.​gov.​cn/​newpage/​Contents/​Channel_​21356/​2014/​0909/​240130/​content_​240130.​htm [accessed 1 April 2020]. (In Chinese).
 
90
Zhan and Kong, pp. 59–65.
 
91
A news report on People website, Chinese communist party news website, covers this issue. It reported ‘when the inspectors came, the manufacturing equipment that creates dust were shut down. And after the inspectors, every came back to working as usual.’ See: ‘Comments: How Many Safety Inspection With Advance Notice?’, People.com http://​society.​people.​com.​cn/​n/​2014/​0815/​c136657-25473819.​html. People.com is the online version of the party newspaper People's Daily. (In Chinese).
 
92
No wording concerning forbidding advance notice is found in the legal text of the Work Safety Law. At the same time, this failure is also criticised by the following literature. Zhan and Kong, pp. 59–65.; Liu and Li [25].
 
93
Zhan and Kong, pp. 59–65; Liu and Li, pp. 150–156.
 
94
Grammeno [26].
 
95
Grammeno, pp. 101–106.
 
96
See Article 47 Work Safety Law. On spotting emergency situations that directly threaten their personal safety, the employees shall have the right to suspend operation or evacuate from the work place after taking possible emergency measures.
 
97
Liu and Fu [27].
 
98
Article 33 Work Safety Law. Production and business units shall have the sources of grievous danger recorded and have the records kept on file, conduct regular monitoring, assessment and control, make exigency plans, and notify the employees and related persons the emergency measures to be taken in emergency. See Article 33 Work Safety Law.
 
99
See Article 34 Occupational Diseases Prevention and Control Law.
 
100
See Article 34 Occupational Diseases Prevention and Control Law.
 
101
This was mentioned in Dongliang Yang’s speech in investigation meeting for the Kunshan explosion, a dust explosion that occurred at Zhongrong Metal Production Company, an automotive parts factory located in Kunshan, Jiangsu, China, on 2 August 2014. The explosion killed 75 workers and injured over 180 others. Yang’s speech is found in ‘Why Are The Lives of Wokrers Always Not Paid Enough Respect?—State Council Incident Investigation Team Summarized Five Reasons That Lead Ultimately To The Kunshan Explosion’, Xinhuanet, 2014 http://​news.​xinhuanet.​com/​local/​2014-08/​04/​c_​1111932072.​htm [accessed 13 March 2020]. (In Chinese).
 
102
See Article 25 Regulations on the Reporting, Investigation and Disposition of Work Safety, China, State Council, 2007.; Liu and Fu, pp. 121–125.
 
103
The guidelines are published on the official website of the Work Safety Administration.
 
104
See Article 63 Work Safety Law.
 
105
See Article 63 Work Safety Law.
 
106
For example, Lin et al. examine the coalmine inspection complaint system and find that 45% of the complaints that were sent to inspectorate were found finally to be untrue. See Lin et al. [28].
 
107
Lin, Chang and Zhai, pp. 42–46.
 
108
See Article 63 Work Safety Law.
 
109
See Article 73 Work Safety Law.
 
110
Levine [29].
 
111
See Article 23 Law on Safety in Mines.
 
112
Article 7 Work Safety Law.
 
113
Article 4(2) Occupational Diseases Prevention and Control Law.
 
114
The right to put forward proposals is stipulated in Article 25 Law on Safety in Mine. where the management of an enterprise gives a command contrary to the established rules and compels workers to operate under unsafe conditions, or, major hidden dangers of accidents and occupational hazards are found in the course of production the trade union has the right to put forward proposals for a solution; where the life of the workers and staff is in danger, the trade union has the right to propose to the management that the workers and staff be evacuated from the dangerous site in an organised manner, and the management must make a decision without delay.
 
115
Article 52(2) Work Safety Law.
 
116
Article 52(2) Work Safety Law.
 
117
Article 37 Occupational Diseases Prevention and Control Law.
 
118
See Article 52 Work Safety Law.
 
119
In the cases of incidents occurrence such as workplace injuries, acute intoxication, occupational disease, or boiler and other kinds of pressure vessels out of order, major injury or fatalities in mining worksite, the private enterprise is obliged to report this to the local labour administration department and trade union, and comply with any decision made by the latter two parties. See Article 32 Interim Regulation on Private Enterprise Employment.
 
120
Article 37 Occupational Diseases Prevention and Control Law.
 
121
Trade unions shall, in accordance with law, make arrangement for employees to participate in the democratic management of and supervision over work safety in their units and safeguard the legitimate rights and interests of the employees in work safety. See Article 7 Work Safety Law.
 
122
Article 37 Occupational Diseases Prevention and Control Law.
 
123
Article 37 Occupational Diseases Prevention and Control Law.
 
124
Article 4 Trade Union Law, China, National People’s Congress, 1992.
 
125
Zhou, pp. 37–43.
 
126
O’Rourke and Brown [30].
 
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Metadata
Title
The Chinese Enforcement System
Author
Kai Liu
Copyright Year
2020
Publisher
Springer Singapore
DOI
https://doi.org/10.1007/978-981-15-6450-5_3