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published on 10 December 2021 | reading time approx. 4 minutes
Workplace safety has long been a problem in many industries in China. In the course of the dynamic economic environment, the People's Republic of China decided to adapt the Occupational Safety Law, which had been revised since 2002 and most recently in 2014. The updated version has been in force since September 1, 2021. We take a look at the current situation in the People's Republic as well as at the new occupational safety law and provide recommendations for action for employers.
Workplace safety has long been a problem in many industries in China. Official figures on workplace accidents or fatalities are usually very vague and opaque, and lack important details about the nature of workplace hazards, the industry's most at risk, and the most common causes of death and injury.
While the overall situation has improved over the past two decades, structural problems remain. Among other things, the nature of occupational accidents has changed significantly. It can be observed that today fewer accidents happen in heavy industry (e.g. coal or steel industry), but there is a shift towards more and more accidents in the service sector and in the tech and platform economy (with big players such as Alibaba, Meituan, JD, etc.). For many employers, productivity and profits still take precedence over the safety of their employees. The most dangerous jobs (and about one-third of workplace accidents) can be found in China's poorly regulated construction industry.
In the wake of China's unprecedented development of the digital economy, delivery drivers, for example, are now among the most vulnerable workers in the People's Republic. Every day, countless accidents, injuries and even deaths occur across the country. The officially recorded figures do not reflect the true extent, as the working relationships between delivery drivers and the large Internet companies are often unclear.
In general, workplace accidents are often due to inadequate safety equipment, training or supervision by the responsible companies. There is also a relatively high number of accidents caused by illegal storage of chemicals or other hazardous substances, or by inadequate division of industrial facilities, warehouses, and so on. Although the number of mental and physical illnesses due to overwork has decreased in the manufacturing industry, it has increased in the service industries and white-collar occupations (especially in the technology sector).
The Chinese technology industry in particular is growing and expanding at a tremendous rate, driven by local and international competition for innovation leadership and customer satisfaction. The downside of this development is, among other things, that employees and workers are exposed to difficult working conditions.
In response to the so-called "996" working hours model (i.e., working from 9 a.m. to 9 p.m. six days a week), which has become the norm especially for large Internet companies, the Supreme People's Court of China, together with the Chinese Ministry of Human Resources and Social Security, published a guide on 26 August 2021. This guide illustrates the illegal work culture surrounding "996" on the basis of ten typical case examples. Although the use of overtime is already restricted by Chinese Labour Law, this legally binding document sends a strong signal to the entire industry and its hundreds of thousands of affected employees.
To address the problems described above, the Chinese legislature undertook the revision of the Work Safety Law of the People's Republic of China as an important measure. The law, which dates back to 2002 and was last amended for the second time in 2014, needed to be adapted, particularly with regard to its part on legal liabilities, which in practice are perceived as not sufficiently deterrent. The work reality in China has also changed dramatically since 2014, and the country's rapidly growing tech and platform economy has created areas that could not be adequately covered by the old legal framework. The most recent reform of the law was initiated back in 2017, but was not revisited until early 2021. After two rounds of deliberation, the revised Work Safety Law was promulgated by the Standing Committee of the National People's Congress on 1 June 2021, and came into force three months later on 1 September 2021.
The main purpose of the amendments to the law is to improve the control and prevention of workplace hazards, clarify the responsibilities of relevant authorities and tighten sanctions for violations of occupational health and safety regulations.
For example, for the first time, companies are required to implement a so-called "dual prevention system with graded management and control of occupational safety hazards and the detection and treatment of hidden hazards." In addition, the legislator has included a provision that imposes special obligations on companies in new industries (such as the platform economy) to protect their employees.
Improvements were also made to various aspects of government monitoring, prevention and combating of workplace safety hazards. This also includes avoiding gaps in administrative responsibility in new industries by allowing the local government to appoint the supervisory authority that is closest to the industry in question in case of doubt. In contrast, the new law does not place greater responsibility on trade unions, which would have been desirable in terms of more effective prevention of workplace risks.
Probably the most striking changes are to be found in the area of legal responsibility for violations of the law. Overall, the scope of possible fines has been shifted noticeably upward. For example, while a maximum fine of RMB 20 million (approx. EUR 2.8 million) was possible for particularly serious violations of occupational health and safety regulations, five times this amount, i.e. RMB 100 million (approx. EUR 13.9 million), can now be imposed in the event of particularly serious circumstances. The persons responsible for occupational health and safety in the company can also be hit just as hard. In the event of a violation of relevant protection obligations under particularly serious circumstances, they may be fined up to 100 percent of the previous year's income. In addition, the authorities are authorized to impose repeated fines for each day on which no remedial action has been taken by the company or the responsible person despite a request to do so.
With the revision of the Occupational Safety Law, the Chinese state shows resolve to change the prevailing conditions. Whether work-related hazards can actually be better prevented under the new legal regime will depend above all on more consistent application by the responsible authorities.
Companies in all sectors, especially those with particularly high workplace-related risk potential, should review their current occupational health and safety system. This includes not only the design of the workplace to minimize typical risks, but above all the careful instruction and regular training of employees. It is also important to observe statutory rest periods to counter the risk of damage to health, life and limb due to physical or mental fatigue. If, despite all preventive measures, accidents do occur at work, it is always advisable to notify the responsible authorities quickly and to cooperate proactively with them. The legal consequences can often be considerably mitigated in favour of the company concerned by such a cooperative approach.
Sebastian Wiendieck
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