Success after years of battle Over 2.6 million yuan compensation ruled by the Chinese court for six silicosis workers

Campaign Update
16 September 2010
For more than 6 long years silicosis victims at the Hong Kong owned LuckyGems and Jewellery Factory Ltd have been fighting for fair compensationthrough legal channels. In August a final court decision was issued on fivesilicosis workers, namely Liu Dabing (劉大丙), Tan Zhouquan (譚周全), LiuZhongwu (劉忠武), Ren Qimei (冉啟美) and Jiang Xueying (蔣學英
). On 3rd August, the Higher People's Court of Guangdong Province made an ultimate andirreversible judgment on the five cases: the Court upholds and reaffirms the original verdicts of the second trials on the five cases and dismisses the
application for re-trial of Lucky Gems Jewellery Company.
In other words, Lucky Gems must abide by the judge’s decision in the secondtrial of the Huizhou Intermediary Court, which ruled that the company has to payfull compensation to the plaintiffs for its occupational hazards caused to theworkers. Yet the company ignored the verdict, and tried to evade paymentthrough transferring its assets. After intensive lobbying by workers and activists,and under the threat of being banned from the September international jewelleryfair in Hong Kong, Lucky Gems finally agreed to pay over 2 million yuan compensation to the workers as ruled by the court. In addition to theprevious compensation settlement for Mr. Deng Yonghong (鄧永紅), who received¥426,168.5 in June, the total amount of compensation ruled for the six workers ismore than 2.6 million yuan. This is a record amount of compensation fought byoccupational disease victims in China through the means of litigation.
This is a triumph to be celebrated, yet still we should not forget those who forvarious reasons were shun from the legal process. Labour Action China (LAC) would continue to work with those workers in lobbying Lucky Gems, in order toensure fair compensation for all silicosis victims.

Brief chronicle of the court cases:
Throughout the litigation process the company had exploited every means tolengthen the legal procedure and to avoid compensation. It relocated its factory,changed its name and legal representatives, repeatedly filed for appeals andadministrative review under various guises, and blatantly ignored the court order.For years, LAC demanded the Hong Kong Trade Development Council (HKTDC) and the Baselworld of Switzerland to ban the company from participating in theirtrade shows. Finally, the company's persistent defiance and non-compliance withthe court rulings led to its expulsion in March from Baselworld and Hong KongInternational Jewellery Trade Fair, the world's biggest jewellery exhibitions inEurope and Asia respectively.
Yet in April the company lodged an appeal for administrative review for the 5compensation cases, contesting the Huizhou City Intermediate Court second-trialruling in January that the company should pay a total of ¥2,201,235.38 to theworker plaintiffs. Its appeal was turned down in August, but still Lucky Gemsrefused to pay the full compensation. An investigation conducted by the HaifengCourt revealed that Guangdong Lucky Gems had zero balance in its bankaccount, and all the assets left under its name was four cars. The name of LuckyGems’ factory in Haifeng has been changed into “Guangdong Stone King”. LuckyGems attempted to transfer its assets to “Guangdong Stone King” by simplyrenaming its factory, in order to immune itself from the court’s sequestrationorder.
In September the world’s largest jewellery fair is held in Hong Kong, with LuckyGems being one of the exhibitors. LAC filed a complaint to the organiser of thefair, UBM Asia, urging them to disqualify Lucky Gems. In response the companyissued an attorney letter, claiming that they have met with the workers in mid-August to negotiate the amount of compensation, and that they had already paidthem ¥100,000 in goodwill. In fact such a meeting never happened, and the¥100,000 payment was a result of the workers’ repeated petition to the court forpreliminary payment. To refute the company’s lies the workers made a signedstatement; on receiving it UBM Asia issued an ultimatum to Lucky Gems,requesting it to resolve the case or face disqualification. On 10th September, less than a week before the fair, Lucky Gems finally made a written
agreement, promising ¥1,000,000 payment before the fair, and that it will settle the rest of the ruled compensation before 30th September. 

Significant victory:The court ruling was an important precedent in itself, affirming the workers’ rights to seek civil compensation from employers for their violations of China’s national laws on occupational health and safety. However thecompany's prolonged refusal to obey the court order showed not only itsremorseless attitude, but also the court’s lack of power and authority. More thanlegal protection is needed to make real workers’ rights; if not for the workers’ owndetermination and power in fighting for their rights, if not for the pressure put onLucky Gems outside the courtroom, such a historical ruling might become an  empty promise. Nor could the laws protect workers who have sufferedinfringement of their rights but were shun from the litigation process. We demandLucky Gems to negotiate with the rest of its silicosis workers and work out a planof compensation; giving all victims fair compensation is the least responsibilitythe company should bear.
For details of the court cases, please contact Ms. Suki Chung or Mr. SHEK PingKwan.
-- Labour Action China
 

Name(Sex)

Liu Dabing(M)

Employ-ment

Shenzhen Lucky Gems (4.1995 -7.1997)
Huizhou Lucky Gems (7.1997 - 1.2002)

Verdictcompensation

¥433,158.43

Silicosisstage

I+ (29.11.2004)
II+ (29.8.2005)

Disabilityrating

IV (25.4.2007)

Chronicle oflegal struggle
(7 years)

- In Dec 2001, the factory arranged medical checks for allworkers due to the discovery of silicosis among its staff. Liu was diagnosed with tuberculosis. Lucky Gems asked Liu to takeleave in Jan 2002. Liu's condition showed no improvement afteryears of tuberculosis treatment, and was finally diagnosed withsilicosis in Nov 2004.
- Liu applied for work injury certificate in Huizhou, but was toldthat the Guangdong authorities did not recognised diagnosisissued in Sichuan. He could only seek another diagnosis fromhospital in Guangdong.
- In Aug 05 Liu filed for work injury certificate in Huizhou again,yet was told that he should apply in Haifeng, where Lucky Gemshad moved its factory to. Yet his application and the subsequentadministrative review were all lost, since he had no labourrelation with Haifeng Lucky Gems.
- In Jan 2006 Liu filed for work injury certificate in Huizhou forthe third time, and was turned down on the ground that he hadno current labour relation with Huizhou Lucky Gems. Liuappealed and won. It took him three years just to obtain awork injury certificate.
- In May 2007 Liu filed for arbitration in Huizhou. The arbitrationcommittee rejected his application, saying that it has nojurisdiction over Guangdong Lucky Gems since it located in Haifeng. Liu appealed, and in Jul 2008 Huizhou Intermediatecourt ruled that Huizhou’s court has jurisdiction over the case.
- In Apr 2009, Huizhou District Court ruled that Lucky Gemsshould pay Liu about ¥280,000 for insurance and civilcompensation. Both Lucky Gems and Liu appealed. LuckyGems also filed for administrative review, contesting the validityof Liu’s work injury certificate. It tried to stop the proceeding ofthe original case with the reason that this related litigation wasstill ongoing.
- In Feb 2010, Huizhou Intermediate Court ruled that LuckyGems should pay Liu ¥433,158.43 in insurance and civilcompensation. Lucky Gems filed for a retrial.
- In Aug 2010, Lucky Gems application for retrial was rejected.This is the ultimate and irreversible judgement on the case.

Legal grounds

Work Insurance compensation (No. 23, 26 and 29 of“Guangdong Province Work Injury Insurance Regulations”,calculated with the average monthly salary of all employeesin the city in 2008 as the base number):
1. One-off disability subsidy (¥34,092)
2. One-off disability allowance (¥170,460)
3. One-off medical subsidy for work injury (¥22,728)
Civil compensation (Article 84 of "Contract Law", Article 52 of"Occupational Disease Prevention Law", No. 19, 25 and 28 of“Explanations on several problems of applicable laws in thehearing of personal injury compensation cases”, “Guangdong Province standard of compensation for personal injury 2008” ):
1. Living costs of dependents (¥44,649.43)
2. Continuous medical treatment costs (¥124,600)
3. Administrative expenditure in diagnosis, certification etc.(¥5,119)
4. Compensation for psychological distress (¥30,000)

 

Name(Sex)

TANZhouquan(M)

Employ-ment

Shenzhen Lucky Gems (6.1995 - 6.1998)
Huizhou Lucky Gems (9.1999 - 5.2004)

Verdictcompensation

¥420,264.70

Silicosisstage

I (30.10.2006)
II (14.1.2009)

Disabilityrating

VI (13.12.2007)
III (12.2.2009)

Chronicle oflegal struggle
(4 years)

- Tan was diagnosed with silicosis in Hunan province in Oct2006, and obtained his work injury certificate only after morethan a year of struggle. Lucky Gems rejected his injurycertification and filed for administrative review. Case lost.
- In Jan 2008 Tan filed for arbitration in Huizhou, and was toldthat the Huizhou arbitration committee has no jurisdiction overLucky Gems, now relocated in Haifeng. Tan appealed.
- In Apr 2009 Huizhou District Court ruled that Lucky Gemsshould pay Tan about ¥350,000 for insurance and civilcompensation. Both Lucky Gems and Tan appealed. Hong KongLucky Gems filed for administrative review, contesting thevalidity of Tan’s work injury certificate under a different guise.
- In Oct 2009, Tan applied to Guangdong Province High Court forpreliminary payment from the company for his medicalexpanses. In Nov Huizhou Intermediate Court ruled that LuckyGems should pay Tan a preliminary payment of ¥30,000 foremergency medical expenses. Only in Mar 2010 had Tanreceived this emergency payment.
- In Feb 2010, Huizhou Intermediate Court ruled that LuckyGems should pay Tan ¥420,264.70 in insurance and civilcompensation. Lucky Gems filed for a retrial.
- In Aug 2010, Lucky Gems application for retrial was rejected.This is the ultimate and irreversible judgement on the case.

Legalgrounds

Work Insurance compensation (No. 23, 26 and 29 of“Guangdong Province Work Injury Insurance Regulations”,calculated with Tan's average wage in the 12 months beforehe left the job as the base number):
1. One-off disability subsidy (¥35,340)
2. One-off disability allowance (¥169,632)
3. One-off medical subsidy for work injury (¥22,971)
Civil compensation (Article 84 of "Contract Law", Article 52 of"Occupational Disease Prevention Law", No. 19, 25 and 28 of“Explanations on several problems of applicable laws in thehearing of personal injury compensation cases”, “GuangdongProvince standard of compensation for personal injury 2008” ):

 

Name(Sex)

JIANGXueying(F)

Employ-ment

Shenzhen Lucky Gems (2.1990 - 6.1997)
Huizhou Lucky Gems (6.1997 - 12.2002)

Verdictcompensation

¥466,028

Silicosisstage

I+ (4.1.2006)
II (23.1.2008)

Disabilityrating

IV (25.4.2007)

Chronicle oflegal struggle
(4 years)

- Jiang left her job in Feb 02, in order to better take care of herhusband, who had also contracted silicosis while working atLucky Gems. Her husband passed away in Sep 2004. She wasdiagnosed with silicosis in Jan 2006, and only obtained her workinjury after more than a year of struggle.
- In Jan 2008 Jiang filed for arbitration in Huizhou, and was toldthat the Huizhou arbitration committee has no jurisdiction overLucky Gems, now relocated in Haifeng. Jiang appealed.
- In Apr 2009 Huizhou District Court ruled that Lucky Gemsshould pay Jiang about ¥320,000 for insurance and civilcompensation. Both Lucky Gems and Jiang appealed. HongKong Lucky Gems filed for administrative review, contesting thevalidity of Jiang’s work injury certificate.
- In Feb 2010, Huizhou Intermediate Court ruled that LuckyGems should pay Jiang ¥466,028 in insurance and civilcompensation. Lucky Gems filed for a retrial.
- In Aug 2010, Lucky Gems application for retrial was rejected.This is the ultimate and irreversible judgement on the case.

Legal grounds

Work Insurance compensation (No. 23, 26 and 29 of“Guangdong Province Work Injury Insurance Regulations”,calculated with the average monthly salary of all employees inthe city in 2008 as the base number):
1. One-off disability subsidy (¥34,092)
2. One-off disability allowance (¥170,460)
3. One-off medical subsidy for work injury (¥22,728)
Civil compensation (Article 84 of "Contract Law", Article 52 of"Occupational Disease Prevention Law", No. 19, 25 and 28 of“Explanations on several problems of applicable laws in thehearing of personal injury compensation cases”, “GuangdongProvince standard of compensation for personal injury 2008” ):
1. Living costs of dependents (¥84,046)
2. Continuous medical treatment costs (¥117,200)
3. Administrative expenditure in diagnosis, certification etc.(¥6,492)
4. Compensation for psychological distress (¥30,000)

 

Name

REN Qimei

Employ

Shenzhen Lucky Gems (2.1990 –
Huizhou Lucky Gems (6.1997 - 5.2002)

Verdictcompensation

¥437,251.05

Silicosisstage

II (4.1.2006)

Disabilityrating

IV (25.4.2007)

Chronicle oflegal struggle
(4 years)

- Ren's labour relation with Lucky Gems was terminated in May2002 when she got pregnant. She was diagnosed with silicosisin Jan 06, and only obtained her work injury certificate a yearlater.
- In May 2007 Ren filed for arbitration in Huizhou, and was toldthat the Huizhou arbitration committee has no jurisdiction overLucky Gems, now located in Haifeng. Ren appealed.
- In Apr 2009 Huizhou District Court ruled that Lucky Gemsshould paid Ren about ¥290,000 for insurance and civilcompensation. Both Lucky Gems and Ren appealed. Hong KongLucky Gems filed for administrative review, contesting the validityof Ren’s work injury certificate.
- In Feb 2010, Huizhou Intermediate Court ruled that LuckyGems should pay Ren ¥437,251.05 in insurance and civilcompensation. Lucky Gems filed for a retrial.
- In Aug 2010, Lucky Gems application for retrial was rejected.This is the ultimate and irreversible judgement on the case.

Legalgrounds

Work Insurance compensation (No. 23, 26 and 29 of“Guangdong Province Work Injury Insurance Regulations”,calculated with the average monthly salary of all employees inthe city in 2008 as the base number):
1. One-off disability subsidy (¥34,092)
2. One-off disability allowance (¥170,460)
3. One-off medical subsidy for work injury (¥22,728)
Civil compensation (Article 84 of "Contract Law", Article 52 of"Occupational Disease Prevention Law", No. 19, 25 and 28 of“Explanations on several problems of applicable laws in thehearing of personal injury compensation cases”, “GuangdongProvince standard of compensation for personal injury 2008” ):
1. Living costs of dependents (¥56,731.05)
2. Continuous medical treatment costs (¥117,200)
3. Administrative expenditure in diagnosis, certification etc.(¥4,530)
4. Compensation for psychological distress (¥30,000)

 

Name(Sex)

LIUZhongwu(M)

Employ-ment

Huizhou Lucky Gems (6.1997 - 6.2003)

Verdictcompensation

¥444,533.20

Silicosisstage

II+(14.11.2007)

Disabilityrating

IV (27.12.2007)

Chronicle oflegal struggle
(3 years)

- Liu left the factory in Jun 2003, and was diagnosed withsilicosis II+ in 2007. He received his work injury certificateone month later. Lucky Gems rejected his injury certificationand filed for administrative review. Case lost in May 2008.
- In Feb 2008 Liu filed for arbitration in Huizhou, and was toldthat the Huizhou arbitration committee has no jurisdiction overLucky Gems, now located in Haifeng. Liu appealed.
- In Apr 2009 Huizhou District Court ruled that Lucky Gemsshould pay Liu about ¥290,000 for insurance and civilcompensation. Both Lucky Gems and Liu appealed. Hong KongLucky Gems filed for administrative review, contesting the validityof Liu’s work injury certificate.
- In Feb 2010, Huizhou Intermediate Court ruled that LuckyGems should pay Liu ¥444,533.20 in insurance and civilcompensation. Lucky Gems filed for a retrial.
- In Aug 2010, Lucky Gems application for retrial was rejected.This is the ultimate and irreversible judgement on the case.

Legalgrounds

Work Insurance compensation (No. 23, 26 and 29 of“Guangdong Province Work Injury Insurance Regulations”,calculated with the average wage in 2008 as the base number):
1. One-off disability subsidy (¥34,092)
2. One-off disability allowance (¥170,460)
3. One-off medical subsidy for work injury (¥22,728)
Civil compensation (Article 84 of "Contract Law", Article 52 of"Occupational Disease Prevention Law", No. 19, 25 and 28 of“Explanations on several problems of applicable laws in thehearing of personal injury compensation cases”, “GuangdongProvince standard of compensation for personal injury 2008” ):
1. Living costs of dependents (¥58,832.2)
2. Continuous medical treatment costs (¥124,600)
3. Administrative expenditure in diagnosis, certification etc.(¥2,311)
4. Compensation for psychological distress (¥30,000)