Ruan Libing (阮礼兵) is a 21-year-old worker from Hunan Province. His left hand was severed while he was operating a machine tool in a factory that produces home appliances. In March 2010 he came to China Labor Bulletin, a nongovernmental organization based in Hong Kong, seeking representation in a lawsuit he wished to bring against the factory. This article tells Ruan’s story from the perspective of Morgan, Ruan’s representative at CLB.
I first came into contact with Ruan around March 2010. His friends had come to our organization hoping to obtain legal aid for him. At that time, he was still in his hometown in Hunan Province. When I spoke with him by phone, I found him stiff, not very well-mannered, and somewhat standoffish. He had no definite opinion as to what decisions he ought to make, and instead left everything up to his older sister. I told him, “You’re an adult. You still have a long road ahead of you; you need to show courage and perseverance and face this yourself.”
July 10, 2009, was a dark day for him. It was the day he lost his left hand forever.
At approximately 1:00 a.m., his hand was crushed while he was operating a punch press in a factory that produced home appliances. Instead of sending him to a big hospital nearby, the factory officials had him driven to a small hospital an hour’s drive away. The doctors there amputated his hand at the wrist.
This tragedy occurred about two months after he had arrived in Zhuhai, a stranger in a new city. He had been working at his job for just one month and seven days and had started operating that particular machine on his own just four days earlier. He was a month and ten days from his twenty-second birthday. After the amputation, he did not dare tell his family. Finally, more than two months after the incident, he told his cousin over the phone. That was when his family found out that he had been injured at work.
By August 10, 2009, Ruan’s accident was officially declared a “workplace injury.” On December 9, his disability was classified as Grade 5. As the factory had previously purchased workplace injury insurance for him, the insurance fund paid him 20,000 yuan (about $3,000) compensation. Before the Chinese New Year, he went home to recuperate.
The Regulations on Work-related Injury Insurance stipulates that a Grade 5 injury requires that the insurance fund pay a disability grant amounting to 16 months of the injured employee’s original salary and that the employer pay an injury employment subsidy and a medical reimbursement subsidy amounting to 60 months of the worker’s original salary.1 In April 2010, Ruan returned to Guangdong from Hunan, preparing to quit his job and demand further compensation from the factory.
The factory was owned by a listed company, but the safety training consisted of a single meeting that took place when new employees began work in the factory. As for their receiving technical training, they were shown the ropes by the most junior-level personnel. With the high pressure involved in piecework, the senior workers asked the new workers only to help with cleaning and organizing tools. Just a month after being hired, new workers not yet fully familiar with the machines were asked to start operating them.
In the eyes of the company, “survival of the fittest” applied to the workers as well as to the products they made. Those workers who did not get hurt stayed on and gave their youth to the company; those who were injured left dejected.
After confirming the facts of the case over the course of several conversations with Ruan, I felt that the factory had been at fault in his accident: gaps in safety training, inadequate safety features in the punch press equipment, a delay in providing medical assistance after the accident, and a questionable choice of hospital facilities. Furthermore, given that Ruan is so young and that he will have to live with the consequences of losing his hand for the rest of his life, his injury is unquestionably great. These various factors should have been taken into account in determining the compensation payout.
The current workplace injury compensation system has these shortcomings: First, it does not consider fault liability and fails to distinguish between an injury caused by the worker’s carelessness and one resulting from mistakes on the part of the factory; second, it does not take into account the expected future earnings of the injured party—there is no difference in compensation between a young person and someone who is about to retire; third, due to limitations in the workplace injury insurance system, which is set up primarily to protect the employers, workers are unable to obtain compensation adequate enough to cover the costs of follow-up treatment, emotional distress, nutrition, and so on.2
Sure enough, during the negotiations, the factory refused to pay additional compensation and was willing to pay only the amount stipulated by the workplace injury regulations. Having no alternatives, Ruan accepted the statutory compensation of some 89,000 yuan ($13,390) and left the factory.
Having received a total compensation of just under 110,000 yuan ($16,550), Ruan would no longer have any more dealings with the factory. We all felt it was very unfair. However, there was one more procedural avenue available: namely, a civil action for personal injury.
There was a legal basis for bringing such a tort claim. According to Article 48 of the Production Safety Law, “Employees who suffer injuries in production safety accidents shall be entitled to claim compensation against the entity concerned if, according to the civil laws, they have the right to do so apart from enjoying the employment injury insurances according to law.”3 The Law on Prevention and Control of Occupational Diseases4 also entitles individuals to bring a civil tort action.
Regrettably, to our knowledge, there have been no instances of lawsuits being filed against an employer after a workplace injury has occurred—particularly not after compensation has been paid—let alone precedents of victorious lawsuits. In fact, workers are not using this right to sue.
I told Ruan about the lawsuit option and reminded him that such a lawsuit would be controversial. Although there was a clear legal basis for a suit, the legal theory had not yet been tested. Certainly he would face all manner of difficulties in getting the judiciary to understand the suit’s merits.
I also told him that the case might have a social value. If he won, it could encourage others who had sustained workplace injuries to sue employers who were at fault. It thus might change the absurd current situation in which an employer’s culpability had no bearing on the amount of compensation paid out for workplace injuries. And factories might then, out of economic considerations, speed up the improvement and upgrading of equipment to increase production safety in order to avoid accidents.
Ruan decided to stay in Zhuhai and fight his case. He found a lawyer, we helped him raise money for the attorney fees, and he filed a tort action against the factory for personal injury.
On July 29, 2010, the Xiangzhou District People’s Court of Zhuhai heard the case. Things did not go smoothly. During the hearing, the judge and the counsel for the factory could not comprehend Ruan Libing’s claim. As soon as the court session began, the judge asked the plaintiff, “You have already received workers’ compensation, so why are you still suing?” And the defense counsel maintained throughout that the plaintiff’s suit was “absurd.”
The factory had purchased the insurance, covered the medical bills, and paid the full compensation stipulated by law. In these circumstances in China, it would indeed be very difficult to find fault with an employer from an ethical standpoint. After all, the employer would not have to worry that about breaking the law even if it did not pay a single penny in compensation for a workplace injury. If an employer were sued and lost the case, it would, at most, pay the compensation and be done with it. Many victims of workplace injury thus have to wait several years just to obtain their statutory compensation and simply do not bring tort actions.
Under these circumstances, there had to be an extra push beyond Ruan’s case. Otherwise, our rationale for litigation was likely to be drowned out, and no one would even find out about it if the case were lost. And the factory would not make any changes to its practices.
In August we contacted the Hong Kong NGO Students and Scholars Against Corporate Misbehavior (SACOM). We told them about Ruan’s case and the current situation at the factory and asked them to join us and support our cause. SACOM members went several times to Zhuhai to meet Ruan and other workers and investigate conditions inside the factory. On August 18, SACOM published a report on the factory that stated that over the course of a single year, 60 work-related accidents had occurred on its premises, many of which involved the loss of a hand or fingers.5 Subsequently, Hong Kong’s South China Morning Post6 and Apple Daily7 also reported the story. SACOM also contacted Wal-Mart, the main buyer of the company’s products, and demanded that it monitor the situation and respond. After Wal-Mart was informed, it sent an investigation team to inspect the factory.
Ruan also wanted to protest outside the courthouse. He came up with the idea of staging a performance art event. I thought this was a very good idea. Unlike jumping from buildings, blocking traffic, or other conventional forms of street protest, performance art is moderate, original, and full of black humor.
Together we devised a plan. In a busy downtown area, the workers participating in the protest would sit behind a long table kneading fingers and hands out of modeling clay in a mock assembly line. Next to the table they would put up a sign with the company’s name. This was meant to show that the factory specialized in producing severed fingers and limbs. Onlookers would be invited to participate, but they could do so using only one hand.
While he was waiting for the lawsuit, Ruan often went to the hospital to chat with four or five other workers who had been injured at the same factory—to establish contact and tell them about his planned protest. Most of them said they wanted to take part in the event.
I sensed that Ruan was growing as a person. He was becoming increasingly cheerful and communicative.
One day he told me that another young worker whose hand was amputated after an accident in the same factory had been admitted to the hospital but was not yet willing to join the protest. I asked Ruan if the worker was afraid he would get into trouble with the factory if he took part in the performance.
Ruan said that this wasn’t the reason. “He must be devastated by such a serious injury. I felt bad about bothering him. I’ll try again in a couple of days.”
I posted several articles online and called on the media to follow Ruan’s story. I also wrote to a number of journalists. Many reporters phoned Ruan to ask him about the performance art protest and agreed to interview him at the event.
SACOM also provided a great deal of assistance and found some young people in Hong Kong with theater experience to go to Zhuhai to train the workers who would be protesting.
The factory soon got wind of the plan. The management sent someone to the hospital to talk with the workers. Because they were still employed by the factory, and because the factory was expected to pay their medical bills, and because the first compensation payouts had yet to be made, the workers began to have serious misgivings about participating in the event. Soon some of them pulled out, and some said they would wait and see.
The performance art event had run aground before it ever started.
Under pressure from all sides, the factory, which had adamantly refused to increase the compensation amount, finally relented. It issued a press release through a public relations firm expressing its willingness to pay additional compensation above that required by law to workers who had sustained workplace injuries.
The factory got in touch with Ruan and told him that they were willing to increase his compensation by 20,000 yuan ($3,009) for humanitarian reasons. This was far below the 260,000 yuan ($39,117) he was demanding. More important, their offer glossed over the issue of liability and turned the compensation into a condescending act of charity.
On September 14, the Global Times, a mainland Chinese newspaper, published an in-depth report on Ruan in its English edition.8 Six days later, the Chinese edition’s website also published Ruan’s story in an article titled “Man-eating Machine at Wal-Mart Supplier Factory Severs 21-year-old Migrant Worker’s Hand.”9
Wal-Mart, the factory’s primary customer, informed SACOM during a conference call in mid-September that most of the machines in the factory had been equipped with infrared sensors. It also informed SACOM that it intended to commission an NGO to set up a complaint hotline for the factory, but that this had not yet been done. Wal-Mart said that it could not, however, get involved with the compensation issue.
As the negotiations dragged on like an arduous tug-of-war, the amount the company was willing to pay increased little by little, from 20,000 ($3,009) to 30,000 ($4,513), to 60,000, ($9,027), to 80,000 ($12,036) yuan.
The two parties were deadlocked when the court hearing Ruan’s case against his former employer issued its decision of the first instance at the end of September. Unreasonably but not unexpectedly, all of the plaintiff’s claims were rejected.
First of all, the verdict was vague about the question of whether a worker who has suffered a workplace injury is entitled to obtain supplementary civil compensation. More regrettably, the court did not find the employer at fault, and each of Ruan’s three tort claims was dismissed.
Ruan claimed that the employer’s mistake was that it had failed to provide safety training. But the court found that job training sign-in sheets provided by the employer showed that pre-job training had been carried out and that it had included production safety.
The problem is that the two-hour training session Ruan received when he started work in the factory did not include any substantive technical safety training. With no way to familiarize himself with even the most basic safety procedures, Ruan was made to sign a safety training session attendance sheet and was then assigned to do odd jobs around the shop floor. There was absolutely no way he could have met the requirements of the Provisions on Safety Training for Production and Operation Entities,10 which stipulates that employees shall “master the safety operation skills specifically applicable to their posts and strengthen the prevention of accidents, the management of occupational health risks, and the handling of emergency situations.”
It was precisely this kind of formalism—namely, issuing oral instructions instead of providing workers with practical hands-on safety training and making them sign attendance sheets to cover up the fact that they have received no substantive safety training—that led to avoidable workplace injuries.
The plaintiff had claimed that the employer’s second mistake was serious defects in the management of production equipment. The court’s decision failed to address this claim in any way.
The plaintiff had claimed that the employer’s final mistake was their gross negligence in providing him with emergency medical care after the accident. But in its first-instance verdict, the court found that “the defendant had promptly sent [Ruan] to a hospital for treatment.” The plaintiff’s lawyer argued that not only had the factory failed to call the 120 emergency medical response hotline, it had also decided to drive Ruan to a hospital that was far from the factory instead of to one nearby. In its decision, however, the court failed to consider in any way whether these circumstances met the standard of “promptness.”
We thought that as a further means of publicizing the case, we could record a five-minute documentary short. We wrote a script called Left Hand (左手) and contacted some cameramen.
At the time, the factory had agreed to increase Ruan’s compensation payout to 80,000 yuan ($12,036). However, they also said that if the second-instance court dismissed the appeal, they would not pay anything.
Having weighed the risks and considered the conservatism of China’s legal environment, and the factory’s financial clout, which could covertly influence the court’s ruling, we thought that if Ruan adamantly refused an out-of-court settlement, he might end up with nothing. Moreover, the lump-sum compensation payout of 80,000 yuan ($12,036) was close to the bottom line of 110,000 yuan ($16,541) we had set for ourselves. We advised Ruan to try to negotiate again.
On October 26, 2010, negotiations finally ended. The company and Ruan reached a settlement: an additional 130,000 yuan ($19,558) compensation, 80,000 of which to be paid when Ruan withdrew the suit and the rest to be paid early the following year.
Hopes had been disappointed again and again during this case, but every time we approached despair, there was a turn for the better. And then it was finally over.
The case did not achieve everything we hoped for, but it did make history. In addition to the statutory workers’ compensation, the young man got 130,000 yuan ($19,558), a compensation payout obtained in increments. We had attempted to pry open the hard shell of a giant monster. It was an impossible mission, but we did it in the end.
Although the lawsuit did not prevail in the court ruling, the principle was communicated: when an employer is at fault in a work-related injury case, the injured party is entitled to compensation in addition to the statutory workplace injury insurance compensation.
On October 28, 2010, the Wall Street Journal reported on Ruan’s case, praising it highly and stating that it “represents a change that could benefit the entire world.”11
This is a tragic story, but it is also a joyful one.
Ruan Libing, a young man of only 22, courageously used the law and the media, joined forces with fellow workers and NGOs, and, ultimately, achieved victory. The assembly line that produced severed limbs and fingers has been shut down. Ruan saved hands that might have been lost like his.
Ruan himself also changed during the process. The bashful young man with a sense of inferiority is gone. Today, he is staunchly defending rights far from his hometown, is ready to interact with different people, has his own opinions and choices, and is resolute, calm, and gentle. He maintains in him goodwill and hope for the world. Optimism and self-confidence are two things no one can take away from him.
1. Regulations on Work-related Injury Insurance [工伤保险条例], issued by the State Council of the People’s Republic of China [国务院], promulgated April 27, 2003, and effective January 1, 2004, http://en.cnci.gov.cn/Law/LawDetails.aspx?ID=6367. ^
2. Insurance Law of the People’s Republic of China [中华人民共和国保险法], issued by the Standing Committee of the National People’s Congress [人民代表大会常务委员会], promulgated June 30, 1995, effective October 1, 1995; amended October 28, 2002; revised February 28, 2009, effective October 1, 2009, http://www.npc.gov.cn/npc/xinwen/2009-02/28/content_1538278.htm. ^
3. Production Safety Law of the People’s Republic of China [中华人民共和国安全生产法], issued by the Standing Committee of the National People’s Congress [人民代表大会常务委员会], promulgated June 29, 2002, effective November 1, 2002. ^
4. Law of the People’s Republic of China on Prevention and Control of Occupational Diseases [中华人民共和国职业病防治法], issued by the State Council of the People’s Republic of China [国务院], promulgated October 27, 2001, effective May 1, 2002, http://www.gov.cn/banshi/2005-08/01/content_19003.htm. ^
6. Bien Perez, “Elec-Tech Accused of Industrial Brutality,” South China Morning Post, August 19, 2010. ^
7. “Wo’erma gongying chang yiwai pin sheng, yuangong duan zhi duan zhang” [沃尔玛供应厂意外频生员工断指断掌], Apple Daily [苹果日报], August 19, 2010, http://hk.apple.nextmedia.com/template/apple/art_main.php?iss_id=20100819&sec_id=15335&art_id=14359790. ^
9. Zhang Han [张涵], “Wo’erma gongyingshang gongguang ‘chi ren’ jiqi zhi 21 sui mingong duan bi” [沃尔玛供应商工厂“吃人”机器致21岁民工断臂], Global Times [环球时报], September 20, 2010, http://society.huanqiu.com/photos/2010-09/1115721.html. ^
10. Provisions on Safety Training for Production and Operation Entities[生产经营单位安全培训规定], issued by the State Administration of Work Safety [国家安全生产监督管理局], promulgated January 17, 2006, effective March 1, 2006, http://www.fdi.gov.cn/pub/FDI_EN/Laws/law_en_info.jsp?docid=52272. ^
11. Michael Casey and Yuanni Chen, “China Injury Case: Key to Global Balance?” China Realtime Report, October 28, 2010, http://blogs.wsj.com/chinarealtime/2010/10/28/china-injury-case-key-to-global-balance/. ^