Does Employees’ “Assemblies” a legal action in China?

Case 1: In August 2023, a property management company proposed converting the employment form of labor contract to labor dispatch, Miao and several other employees refused such proposal. In early September 2023, the company arranged a training for employees, but Miao and several other employees refused to participate. Instead, they gathered at the residential community where their posts were located for several consecutive days, marched in a line, and chanted slogans. ((2024) Hu 0115 Min Chu No. 34302)

Case 2: From October 25 to 28, 2016, employees of an energy company gathered on the green space at the entrance of the factory area. They sat in silence or wandered outside the factory area for a long time and refused to provide normal labor services. The company posted a written warning, demanding that the employees stop their absenteeism and return to work as soon as possible. Zhou refused to return to work and was eventually dismissed. ((2017) Yue 0305 Min Chu No.3373)

In the above cases, employees gathered because their demands were not met. How to determine such action from the perspective of legal characteristics?

Firstly, whether such action constitutes “assemblies or processions”?

The answer is negative.

In China, the main legal basis regulating citizens’ rights to assembly and procession are the “Law on Assemblies, Processions and Demonstrations” and its implementation regulations.

Article 2 of the “Law on Assemblies, Processions and Demonstrations” stipulates: ” The ‘assembly’ refers to an activity where people gather at a public place to express opinions or aspirations; the ‘procession’ refers to an activity where people march in a line on public roads or public places to express common aspirations.” It can be seen that both assemblies and processions are restricted to public places or public roads.

Regarding the definitions of “public places” and “public roads”, according to Article 3 of the “Law on Assemblies, Processions and Demonstrations”, “The ‘public place’ refers to outdoor public places that the public can enter freely or with tickets, excluding internal open spaces managed by state organs, organizations, enterprises or institutions; the ‘public road’ refers to “roads and waterways other than the dedicated roads within the premises of state organs, organizations, enterprises or institutions”. It is thus clear that public places or roads within the internal premises of a unit are not locations permitted by law for assemblies or processions.

Meanwhile, according to the above law and its implementation regulations, to organize an assembly or procession, the organizer shall submit a written application to the public security organ and obtain its approval. The application form shall specify: the purpose, method, slogans, number of participants, number of vehicles, type and quantity of audio equipment used, start and end time, location (including assembly and dispersal places), route of the assembly/procession/demonstration, as well as the name, occupation and address of the person in charge. Those who violate these provisions shall face public security administration penalties or even be held criminally responsible.

Therefore, if employees indeed need to organize an assembly or procession to defend their legitimate rights and interests, they must obtain approval from the public security organ, express their aspirations in a peaceful manner (without carrying weapons) at the designated location in accordance with legal provisions. The situations described in the two cases obviously violate these regulations.

Secondly, whether such action constitutes a “strike”?

Chinese laws do not grant workers the right to strike, so there is no legal basis for employees to go on strike. Article 41 of the “Trade Union Law” stipulates that when a primary-level trade union committee holds a meeting or organizes activities for employees, it shall be conducted outside working hours; if the committee plans to use working hours, it shall obtain the consent of the enterprise in advance. Article 21 of the “Regulations on the Work of Enterprise Trade Unions” also stipulates similar provisions.

Therefore, for collective legitimate demands of employees against employers, employees shall bring their claims to labor administrative authorities, arbitration committees or courts. Except for the situation specified in Article 32 of the “Labor Contract Law”, that is employees refuse to comply with the illegal command of the employer’s management personnel or the forced risky operations, for other situations, if employees refuse to provide labor services without the approval of employers, such actions shall be deemed as invalid.

In the above cases, both courts in Shanghai and Guangdong held that “the employees gathered at the workplace and resorted to improper means to defend their rights”, which seriously violated the employer’s rules and regulations.

In conclusion, employees shall express legitimate demands by legal means. In order to reduce the possibility of such “assemblies”, employers should promptly pay attention to employees’ legitimate demands and properly resolve disputes as early as possible.