The Lesser of Two Evils? Explaining Chinese Rural Migrant Workers’ Preference for On-demand Food Delivery Work With Reference to the Legal Framework

Abstract

Drawing on a series of interviews with on-demand food delivery riders, who are rural migrant workers, this paper seeks to explain the workers’ decision to give up stable jobs in factories in favour of largely unregulated and precarious on-demand work. Focusing on those aspects of the legal framework which shape workers’ decisions, it presents the explanation under the dual banners of ‘income’ and ‘freedom and flexibility’. In terms of income, Chinese law often enables low factory wages and a reliance on overtime; migrant workers view social insurance contributions as a loss; issues with payroll and wage arrears are significant. In terms of freedom and flexibility, insufficient rest rights lead to inadequate breaks for assembly line workers and, compounded by unspecified ‘special working time’ permit physically unbearable shifts without extra compensation. Age and gender discrimination are prevalent both in factories and various sectors. In contrast, on-demand delivery work has relatively low barriers to entry.

Introduction

Because of the long-term urban-rural dual structure system, there are a large number of rural migrant workers in China (Li, 2010). Since the Reform and Opening of the late 1970s, these workers have constituted the vast majority of the workforce in labour-intensive manufacturing, contributing to China's manufacturing dominance globally (Han et al., 2014). They have also progressed from having no or little labour rights to having better labour protection and inclusions, although most of the rights are still individualised today (Gallagher, 2017). Since the early 2010s, China's industrial policies have emphasised cutting-edge technologies which have likely led to a reduction in the demand for low-skilled manufacturing workers (Lawrence, 2020). Additionally, the relocation of labour-intensive manufacturing from China to other countries has increased as a result of growing labour costs (Yang, 2016). Despite these trends, the shortage of workforce in manufacturing has been and continues to be an ongoing issue (Liu et al., 2021; Sun et al., 2020).

In contrast to manufacturing, on-demand platforms, particularly food delivery platforms, are relatively new-comers in the Chinese labour market. As elsewhere, on-demand delivery work is highly precarious, can be dangerous and demeaning, and is mostly unregulated (Lin, 2022). Nonetheless, many rural migrant workers have left manufacturing to work in the on-demand delivery sector (Zhao, 2020). Both the major on-demand platforms’ reports and scholarly research demonstrate that the proportion of on-demand workers in China is considerably higher among rural migrant workers (Chen, 2020a Fengniao Peisong, 2018; Meituan Research, 2018). This raises questions: Why do migrant workers opt for precarious on-demand work over more stable factory work? Why do they prefer to move from one sector with labour rights protection to another without? How do current labour laws figure in their decision-making?

A wave of scholarship about the legal consciousness of actors has demonstrated how law constructs and constrains the everyday lives of ordinary people. Although this trend of research has also been expanding in the field of labour law, it remains largely underdeveloped (Dukes and Kirk, 2021). Applying research on legal consciousness to investigate the research questions posed in this paper can yield nuanced insights into how existing labour laws influence the objectives, decisions, alternatives, and challenges faced by migrant workers (Marshall and Barclay, 2003).

Based on 58 in-depth, qualitative interviews conducted in 2021 and 2022 with rural migrant workers, who were previously employed in manufacturing in China and are now working as food delivery riders, the paper's main conclusion is that ‘income’ and ‘freedom and flexibility’ are the two apparent reasons for migrant workers to choose on-demand delivery work. Underlying these reasons are in fact the poorly defined ‘minimum/basic wage’, slow minimum wage increases, the low real social security contribution rate for factory workers, the hurdles in transferring social insurance, the vague right to rest, the undetailed special working time and the ubiquitous age and gender discrimination frame migrant workers’ choice. The paper begins with a brief history of the rural migrant worker and on-demand work and the related basic labour law framework. It then introduces the theoretical framework of ‘legal consciousness’, describes the research method, and presents and discusses the findings.

Rural Migrant Workers, On-demand Work and the Basic Law

From the 1950s until its dismantling in the 1980s, the urban-rural dual structure system based on hukou status (household registration) essentially locked rural residents down in their birthplace and limited their freedom of movement in China. In the late 1980s, the full implementation of the Reform and Opening-up created labour shortages in the eastern coastal regions. To meet the new demand, the government adjusted the policy to permit rural residents to work in urban areas without changing their citizen status. Since then, it has grown continuously and rapidly with rural migrants becoming a vital part of the Chinese labour force. At least half of them were employed in manufacturing and construction until 2018 (National Bureau of Statistics of China, 2010–2020). They are the ‘special forces’ or ‘comparative advantage’ which have allowed China to become a ‘factory of the world’ in the last two decades (Chan and Siu, 2010).

Initially, rural migrant workers enjoyed none or only a bare minimum of labour rights in urban workplaces (Chan, 1998). It was not until 2003 that rural migrants’ fundamental labour rights were gradually recognised and highlighted (Xiang, 2007). The Labour Contract Law 2008 provides more inclusive protection in a bid to bring more workers into the formal sector and tries to eliminate the status of ‘migrant worker’ through the use of the contract of employment. The Social Insurance Law 2011 also aspires to integrate migrants into urban social insurance programmes, improving the portability of social insurance benefits (Gallagher, 2017). The unequal citizenship created by the historic rural-urban divide has been replaced by the term ‘employee’ in both laws. Rural migrant workers who are full-time ‘employees’ are entitled to the same labour and social security rights and protection. Migrant workers’ labour contract status was significantly associated with their participation in all types of social insurance. In particular, having or gaining a long-term contract (1 year or above) helped to promote migrant workers’ social insurance participation (Gao et al., 2017). Overall, with the gradual improvement of labour protection legislation, with the exception of collective rights, no significant discrepancy was found to exist between most of the provisions in China's labour laws and international labour standards. While the effectiveness of the enforcement of labour laws has been doubted (Lee, 2016), studies show that the Labour Contract Law has clearly achieved important successes in protecting China's migrant workers and other vulnerable workers (Gallagher et al., 2015; Wang et al., 2019). And according to the white papers published by an impartial third party since 2012 (51shebao, 2011–2021), it is evident that the compliance of enterprise social security has transitioned from the stages of ‘non-payment of social security’ and ‘late payment of social security’ to the stage of ‘payment with insufficient base’.

The on-demand economy has skyrocketed in size and significance in China since the early 2010s, of which takeaway delivery services is one of the most prominent sectors. After several rounds of fierce competition in recent years, a duopoly has been in the process of forming, consisting of the two platforms Meituan and Ele.me, which in 2020, dominated almost 59% and 36% market share, respectively (Li, 2021). As stated on their official websites, the two giants have recruited almost 7 million riders in total.

On-demand workers are not usually covered by labour law protection in China. The existence of a labour relationship functions as an ‘all or nothing’ mechanism, meaning they are not entitled to any labour and social security rights. Although a series of administration department normative legal documents have been introduced in the last few years to explore innovative policies, including the so-called third employment category aimed at improving on-demand workers’ rights and benefits, the effects are not known due to the broad provisions of these normative legal documents, as well as the fact that very new polices which need time to implement or trial (Fan, 2022). Without the protection of the labour laws, on-demand workers are vulnerable to low pay, long working hours and, in many cases, unsafe and degrading working conditions.

According to data published by the two platforms, at least 80% of delivery workers are primarily rural migrants (Meituan Research, 2016). Rather than joining reluctantly, rural migrant workers have flocked to the booming on-demand delivery platforms in recent years, triggering the observation that rural migrant workers ‘would rather deliver food than go to factories’ (Chen, 2020b). Why do rural migrant workers make what seems like an irrational decision? How do the existing labour laws shape their decisions?

Theoretical Framework and Research Methods

As a lens to observe the operation of law in society, we can identify three broad ways in which laypeople interact with or invoke law in their daily lives: legal participation, primarily concerning laypeople's activities within legal institutions like courts and tribunals; legal mobilisation, encompassing litigation in the narrow sense, as well as the potentially inspirational and radiating effects of legal concepts in motivating action and framing injustice in the broader sense; and legal consciousness (Kirk, 2021). Legal consciousness is a theoretical concept and topic of empirical research that originated within the field of US law and society during the 1980s and 1990s (Silbey, 2005). Its research, through a shift in theoretical questions ‘away from tracking the causal and instrumental relationship between law and society toward tracing the presence of law in society’ (Ewick and Silbey, 1998), aims to understand ordinary people's routine experiences and perceptions of law in everyday life (Cowan, 2004). In their influential text, Ewick and Silbey developed three forms of legal consciousness ‘narrative’ which they labelled ‘before the law’, ‘with the law’ and ‘against the law’. In short, a ‘before the law’ narrative perceives ‘the law’ as impartial, unified, objective, and external, with an ontology and authority beyond everyday life. Individuals understand themselves to have no capacity to influence ‘the law’ or determine its meaning. A ‘with the law’ narrative perceives law as disconnected from justice, portraying it as a game or contest in which individuals with knowledge and resources can manipulate rules for their advantage. An ‘against the law’ narrative perceives law as oppressive. Less powerful individuals, through various acts, attempt to resist it and gain some control of the situation. These three categories are not mutually exclusive but are related to one another.

While labour law has a sociological tradition at its root (Dukes, 2019), labour law scholarship in China has been shaped dominantly by a German Rechtsdogmatik(black letter) approach. Labour lawyers tend to interpret and analyse the normative rules and principles within the closed system of law. It is difficult to find any research in mainstream labour law scholarship that departs from Rechtsdogmatik approach.

On-demand work, as elsewhere, has prompted a flurry of attention from Chinese labour lawyers. As myriad papers that have been presented and discussed in recent years demonstrate, labour lawyer have generally tried to interpret the purported novelty of on-demand work within the traditional framework from the paradigm of Rechtsdogmatik, either improving the standards of labour relations or absorbing the intermediate employment category. Prior to addressing the question of how to protect on-demand workers, however, it may be argued that it is more important to engage in an exploration of the underlying reasons behind individuals’ preferred participation in on-demand work, despite the seemingly more advantageous alternatives. This leads to a need to delve into how workers perceive existing labour laws and what they desire or require from them in their daily lives.

This study adopted a qualitative approach to explore how migrant workers think about existing labour laws, which shape their choices between manufacturing jobs and on-demand delivery jobs. The author conducted 58 in-depth, semi-structured interviews in Hangzhou (HZ) and Changsha (CS) in China in 2021. The two delivery platforms have well-developed in the two cities. The former lies in the Yangtze River Delta in the east, which is renowned for its private sector economy, and the latter is the capital of Hunan Province located in central China. Since 1990s many people from Hunan have migrated to the Pearl River Delta region for jobs, which is the pioneering area in China's Reform and Opening-up and later the most important manufacturing base. A series of follow-up online interviews in June to December 2022. The design used a maximum variety of sampling, including rural migrant riders in their 20s, 30s, 40s and 50s, those with work experiences from 3 months to 7 years with the two dominant platforms, hometown, education level, full-time and part-time, etc. The majority of interviewees were male, reflecting the prevailing trend in the sector. As a qualitative sample from two small geographical areas, this was in no way representative, yet it was balanced and diverse enough to capture an overview of a range of perceptions held by the delivery riders regarding their job choices.

Access to interviewees was gained through direct contact with riders near the food courts in the two cities. After obtaining informed consent, all the interviews were in-person and individual, audio recorded, and subsequently transcribed and subjected to content analysis. In line with the approach taken by Ewick and Silbey, no specific legal problems or rules were mentioned by the interviewer during the interview. Topics discussed included: (a) terms and conditions of work in delivery and past jobs; (b) workers’ views and perceptions concerning the terms and conditions of work in delivery and past jobs; (c) the experience and consequence of these terms and conditions of work on their personal experiences and social lives. The interviewees were prompted to draw on their entire work trajectory when discussing their employment history and the reasons for any changes. Interviews lasted one hour on average. The content of interviewees’ narratives, comprising both facts and opinions, was subsequently subjected to thematic analysis, which can summarise the key features of a large data set through a well-structured approach to handling data (King, 2004), and illustrates the data in great detail and deals with diverse subjects via interpretations (Boyatzis, 1998). In the context of exploring on-demand delivery riders’ job choices and their legal consciousness, thematic analysis was useful because it enabled the researcher to examine, from a social constructivist position, delivery riders’ everyday experiences and perspectives indicating their choices between sectors with and without labour law protection.

Income is the Primary Factor

Legitimate Low Wage, Overwork, and the Opportunity to Earn More as a Rider

Factory workers’ earnings are low in China, with a pay structure that combines a low ‘basic wage’ with ‘high’ overtime rates. The term ‘basic wage’ has been widely used in everyday life such as in recruitment ads, but there is no definition of a basic wage in current labour laws. It was only mentioned in Article 44 of the Interpretations of Some Articles of the Labour Law 1994, which concerns the notice regarding calculating overtime. Generally, the monthly ‘basic wage’ offered to factory workers in most manufacturing work is virtually the same as or similar to the legal minimum wage (Chan and Siu, 2010). Again, the minimum wage is not clearly defined in labour laws. According to the new Minimum Wage Regulations 2014, there isn’t a national minimum wage. Instead, the task of creating and enforcing minimum wages has been delegated to provincial governments or equivalent municipalities, who are free to set varying minimum salary levels in their administrative territories. The components of the minimum wage are not clearly defined, but there are only a few exclusions. According to Article 12 of the new regulations, the following parts should be excluded from the local minimum wage: (a) Wage for extra work; (b) Allowances in special working environments and conditions such as mid-shift, ¹ night shift, high temperature, low temperature, underground, toxic and hazardous conditions; (c) The welfare and treatment of workers stipulated by laws, regulations and the state. The main point here is how the provincial governments implement the welfare and treatment in Section 3 as these have never been defined before, particularly the social insurance contributions and housing provident fund, which usually account for a certain percentage of wages.

In truth, the extent of welfare and treatment is viewed differently by each provincial government. A few provinces or municipalities excluded the social insurance contributions and housing provident funds completely, while others, particularly those with thriving manufacturing industries, like nearly all the coastal provinces: Zhejiang, Fujian, Guangdong, and Jiangsu, don’t specify or choose to exclude only part. The different choices made by local governments may be attributed to their variable understanding of the possible functions it serves: for example, some aim to keep wages low in order to attract more firms and increase tax income (Siu and Unger, 2020).

Although the minimum wage in China has shown a clear upward trend (Xie and Wang, 2015), a recent paper that examined minimum wage data from 31 provinces and municipalities in the whole country from 2008 to 2019 demonstrates that it has risen substantially behind the standard recognised specially by the central government's Promoting Employment Planning (2011–2015) (Zhang and Wu, 2021), which is that the ratio of the minimum wage to the average wage of local staff and workers should be at least 40%. ² Probably under the increasing pressure of rising labour costs and reducing the cost of real-economy enterprises, ³ most provinces and municipalities tend to be conservative in adjusting the minimum wage as they take it as a significant factor that may raise labour costs (Ye, 2013). The low basic/minimum wages, in other words, the low cost of labour, is a major component in China remaining competitive in global markets (Banister, 2007).

Since the ‘basic wage’ is often low, or barely above the minimum wage, factory workers rely heavily on working overtime to earn more money. ‘We had to work overtime in the factory. If we didn’t, we can only earn around RMB 2000 monthly. Our basic wage was meagre’ (HZ20, 31, male, a rider with 2 years’ experience). The wage base for calculating overtime is critical. The Labour Law states the base for calculating overtime shall be the worker's ‘wages for normal working hours’ (Article 44). The term ‘wages for normal working hours’ was explained in the Notice on the Issuance of Opinions on Several Issues Concerning the Implementation of the Labour Law 1995 as ‘the wage corresponding to the worker's own job position as stipulated in the labour contract’, but in another Notice of on Circulating the Interpretations Regarding Some Articles in Labour Law 1994, the wage used to calculate overtime is defined as the workers’ ‘basic wage’. These inconsistent and not clearly defined provisions have led to difficulties in their application and created the opportunities for employers to manipulate the calculation of overtime. Although nearly all the local governments have passed detailed wage rules in terms of the wage base for calculating overtime, again, usually, the agreed wage base is equal or somewhat higher than the minimum wage in localities (Lin, 2013). After overtime and other welfare income are calculated together, the annual wage of manufacturing workers in 2020 was merely RMB 61,324 or RMB 5110 monthly. This also included skilled workers, while the annual wage of the low-skilled or unskilled workers in the assembly lines was less than RMB 50,000 (Zeng and Xiong, 2021).

However, a number of riders are able to earn wages above those of factory workers’ average wages and come can earn even more by working longer working hours but under dangerous conditions, as observed during the fieldwork and confirmed by data from the platforms (Fengniao Peisong, 2018; Meituan Research, 2018). It is common for riders to work 10 or 12 h a day, or even longer. ‘Long hours are a trade-off for money, but it is still better than the factory’ (HZ30, 37, male, a rider with 2 years’ experience).

Even if a rider's wage is equivalent to or less than in manufacturing, there is optimism or expectation that workers can earn more. In factories, the basic wage is fixed, so there can be no expectations regarding changes, and overtime can be predicted. However, delivery work can have more expectations, surprises, and possibly more income.

In the factory, everything is fixed, I know how much I can earn monthly, even it is piece rate, you still know generally how much I can make hourly, and I must never stop, but food delivery is different. If I am lucky, I can get 10 good orders in one delivery and can make RMB 50 or more in no more than one hour, if it is nighttime or in bad weather, it will probably more than RMB100. (HZ29, male, a rider with 4 years’ experience)

To compare, assume the wage base is the minimum wage of RMB 2280 in the factory (the monthly minimum wage in Hangzhou in 2021), the hourly overtime on weekdays should be 2280/20.5 (monthly workdays)/8 (daily working hours)*1.5≈20.9, even if the wage base is a bit more, definitely no more than RMB50 overtime per hour for factory workers. It is of course, not always possible that riders can have so many good orders, but they can wait with a sense of hope, and it is better to wait in hope than to work all the time on the assembly line all the time. It is the same in both the manufacturing and delivery industries to have the opportunity to work extra time in order to make more money. The expectation is more appealing and important for those who are willing to work hard and eager to make more.

Social Insurance Contributions Seen More as Loss Than Benefit

While factories must pay different kinds of social insurance for employees, platforms don’t pay any insurance for riders, except for business accident insurance. When the portion of social insurance to be paid by the employer is taken into consideration, the difference between the income of riders and of factory workers is not large, or maybe better for those low or medium-income riders. However, migrant workers do not consider social insurance as an important factor.

The basic social insurance system in China was for a long time also sharply divided by the urban-rural distinction. Four mandatory types of basic social insurance have been well established for employees: the Basic Old-Age Insurance (BOAI), the Urban Employee Basic Medical Insurance (UEBMI), work-related injury insurance, and unemployment insurance (maternity insurance was merged with unemployment insurance in 2019). Except for work-related injury insurance, which is fully paid by the work unit, all others shall be jointly paid by work units and employees. Normally, work units’ contribution is more than that of the employee. Moreover, in order to make up for the inadequate coverage of the BOAI and UEBMI, schemes called for the Urban and Rural Resident Basic old-age insurance (URRBOGI) and the Urban and Rural Resident Basic Medical Insurance (URRBMI) aimed at rural and urban residents who are not employees were launched in 2014 and 2016.

Although URRBOGI and URRBMI have covered most rural and non-working urban residents, the benefits are far less than the BOAI and UEBMI. The pension gap between URRBOGI and BOAI pension benefits is more than tenfold (Xue and Zeng, 2019). For example, the national average pension of BOAI was RMB 3350 in 2020 (National Bureau of Statistics of China, 2021) while the national minimum pension of URRBOGI was RMB 93 in 2020 according to the Notice on Raising the Minimum National Basic Pension Insurance for Urban and Rural Residents 2020. Though there are various levels of payment standards to choose from, but the majority of rural residents opt for the lowest level. Also, it is known that UEBMI provides significantly more health benefits to insured persons than URRBMI (Fu et al., 2018).

Except for business accident insurance, platforms do not pay any insurance for riders. Most migrant riders purchase URRBOGI and URRBMI independently. Even though there are still striking urban-rural health and pension inequalities, the insurance provided by factories is not very attractive to migrant workers (Tian et al., 2021), as reflected by some of the participants in this research.

There are several reasons for this: Firstly, the real contribution rate and base are far lower than the statutory contribution rate and base. According to the Annual White Paper on Social Security conducted by a third party in 2017, more than 70% of businesses do not set contribution bases based on employees’ actual income, and 22.9% pay contributions on a minimum basis. ⁴ As factory workers’ wages are already low, the contributions are not a major concern to them. ‘They pay our social insurances contributions at the lowest standards, it is useless. I can make more money by delivering food and I can buy insurance by myself’ (HZ24, 25, male, a rider with 2 years’ experience).

Secondly, the difficulties in transferring social insurances between provinces or even cities make workers give up even trying to make the transfer. Almost half of all migratory workers travel between provinces in search of jobs (National Bureau of Statistics of China, 2010–2020). For a long time, the provincial social insurance funds or even cities within provinces have not been pooled together. Migrant workers must transfer their social insurance when they move for work between cities or provinces to work in order to continue to accrue benefits. Despite the fact that a set of rules governing the transfer of social insurance has been issued, ⁵ there are still obstacles that discourage workers from transferring (Tan, 2015), particularly since the amount of social insurance contributions from factories is small. ‘You need to go to the local social security departments in two cities and provide documents, I am very busy at work and do not have time to do this’ (HZ5, male, 38, a rider with 6 months’ experience).

Thirdly, and probably most importantly, the lack of understanding of the importance of social insurance as they live without it for a long time and the burden of making ends meet, lead some of them to prefer actual money in their hands. From the 1950s until its dismantling in the 1980s, the state-enforced rural-urban divide created a regime of unequal citizenship. Social welfare was constructed according to an institutional redistributive model in urban areas, with state provision of cradle-to-grave welfare support for urban citizens. In rural areas, a residual welfare model was used. State support was limited to emergency and disaster relief, with rural residents receiving only small amounts of cash and in-kind assistance (Zhang, 2019). As no such above pension scheme existed for them for a long time, rural residents have relied on the ingrained Chinese tradition that children care for elderly parents. Moreover, even with broader policy changes like relaxing hukou restrictions and implementing measures to enhance the welfare of rural residents, the fact remains that China operates as a reactive welfare state, primarily driven by economic necessity (Ringen and Ngok, 2013). This does little to alleviate the burden on most migrant workers struggling to make ends meet. For some riders, envisioning a clear future becomes a challenge, ultimately leading them to give up the employee status social insurance which requires them to pay high premiums, but choose the much lower premiums of RRBOGI and URRBMI, despite ultimately receiving lower benefits.

You can’t even think about your immediate future; all you can think about now is the problem of eating. Can I still think about living to 90 years old and having to go to the hospital? The URRBOGI and URRBMI can also give some help. (HZ11, 35, male, a rider with 2 years’ experience)

Not surprisingly, some migrant workers express dissatisfaction with factories that fully comply with social security regulations,

When I worked in a factory, they followed with the laws and bought all the insurances for me based on my actual wage. The factory paid more than RMB1500 and I paid more than RMB800 monthly. This is too much for me. I asked them not to buy insurance for me but give that money to me. They did not agree. (CS16, 25, male, a rider with 3 months’ experience)

Payroll Time and Wage Arrears

According to Article 7 of The Payment of Wages Tentative Provisions, there are four types of payroll cycle: monthly, weekly, daily, and hourly. Traditional work units usually adopt a monthly payroll. For some migrant workers with loans, particularly those who start to find jobs with limited savings or have low monthly income and heavy family burdens, the monthly payroll is a disadvantage due to the long wait. However, on-demand riders can be paid daily or weekly, depending on the type of rider they choose.

In addition, migrant workers in various parts of China have suffered massive and pernicious wage arrears for a long time (Hong, 2007). The issue of wage arrears has persistently dogged the manufacturing sector, with factories suddenly closing and then vanishing (Crothall, 2018). And that is despite the fact that the Tentative Provisions states that wages must be paid at least once a month and on time. The Chinese government has taken many measures to combat wage arrears, including legislation and more channels for migrant workers to get their wages back, ⁶ but it is a difficult problem to solve completely and effectively. In contrast, riders’ daily income arrives in their account on the day after, or their weekly income arrives 2 or 3 days after their working week, and it is always on time. ‘I have not been paid back for a couple of times in other industries in the past, now the platforms never have wage arrears, it is very good’ (HZ17, 54, male, a rider with 2 years’ experience).

Freedom and Flexibility

One of the often-cited benefits of gig work is its ostensible provision of ‘freedom’ and ‘flexibility’ for workers (Anwar and Graham, 2021). However, algorithms have also tightened the control of the labour process (Feng and Zhan, 2019), which makes the flexibility and freedom in the on-demand sector largely illusory. Under the current labour laws in China, riders who used to work in manufacturing had distinct experiences and feelings of the freedom and flexibility that made them choose between the two kinds of work arrangements.

Temporal Flexibility and Rest Breaks at Work

Work breaks are considered important in improving productivity and health during work hours and demonstrably reduce fatigue and the risk of injury (Scholz et al., 2018). The Labour Law 1994 acknowledges the right to rest, but there is only a basic framework that doesn’t substantively address that right. Provisions of the State Council on Working Hours of Workers and Staff issued in 1995, which has only nine articles, cannot provide more substantive rules as well. There are no general laws regulating rest breaks at work or daily rest in China. In Article 27 of the Regulations for Administrations of Special Working Time (Consultation Paper) drafted by the Ministry of Human Resources and Social Security in 2012, it states ‘under the condition that the enterprise guarantees normal production and operation, enterprises should ensure that workers receive at least 20 min of rest time after more than 4 daily working hours, rest time is counted as working time’. However, ultimately, the regulations were not passed.

In China's labour-intensive industries, semi-automated assembly line technology is common. Workers mainly work with machines to do repetitive and monotonous tasks at a steady pace, dictated by the machine. They perform work independently of one another, rather than within an integrated team, and have fewer chances to chat with colleagues; pauses or errors are not allowed either, as these could result in chaos on the assembly line (Walker et al., 2017). Nearly every participant who worked in the factories used the term ‘work like a robot’ to describe their working life and complained that the timing and frequency of toilet visits are even controlled to keep the assembly line continuously manned. Generally, they have almost 1 hour to have lunch, which is not included in their working time. Some ‘good’ factories may permit rest breaks at work, such as 10 min rest after 2 h of continuous work. It is mostly at the factories’ discretion. And overtime work is frequently scheduled after regular working hours. Further, some assembly lines are extremely noisy. Even if they are allowed to have breaks, there are no legal rules to set the sound levels around workers during rest periods. Moreover, all this is against a backdrop where workers become nearly as much locked in place as the machinery itself due to overwork (Nielsen, 1980).

I worked in a factory for two years. I have had enough. Nearly 10 working hours a day and never stop. There is no freedom at all. We can’t take phones into the shop floor, you have to take turns to go to the toilet, how many people on one assembly line and how long will it take your turn? (CS14, 26, male, a rider with 1 year's experience)

On the one hand, delivering food is quite different, not just ‘while delivering food, you can meet different people and go to different places’ (HZ11, 35, male, a rider with 2 years’ experience). On the other hand, during rush hours they are the same as or worse off than workers on the assembly line. They can’t stop if they want to make money. However, the working time design is more flexible than in factories even for those riders who must follow the strictest working hours and lack authority to refuse or choose orders. For example, even the type of riders with stringent time constraints can take half an hour break every time slot. The lunch peak time slot is from 10:30 am to 1:30 pm, so the minimum length of time online for riders is two and a half hours, not three hours, as there are 30 min of discretionary time.

Freedom means I can talk to you now and if I like to have a cigarette, I can have it at any time. But in the factory, you don’t have any chance to smoke. (HZ10, 30, male, a rider with almost 3 years’ experience)

Unbearable Shiftwork

Shiftwork has a long history in particular industries. Factory managers realised decades ago that running an assembly line around the clock was cheaper and more efficient than shutting down production at night and starting it up again in the morning (Bird and Mirtorabi, 2006). Shiftwork is of course common in many Chinese factories. Shiftwork in manufacturing in China often consists of two shifts, with day and night shifts rotating weekly. The standard working time stipulated in labour laws is only 8 h per day and no more than 40 h per week, while the scope of per day is not specified, it is usually 8 h during 24 h. If the night shift is 8 h or less than 8 h, no overtime needs to be paid to workers. And the wage calculation criteria for day and night shifts are the same. The unadopted Regulations for Administrations of Special Working Time referred to the night shift as the situation where the enterprise arranges workers to work for 2 h or more during the period from 10:00 pm to 6:00 am the next day. This is to say, there is no other legislation for factories to arrange workers to take shifts if the night shift is 8 h long. The only exception is that it is disallowed for female employees who are more than 7 months pregnant according to the Special Rules on the Labour Protection of Female Employees.

Given the fact that there are few national rules governing shiftwork, some local governments established night shift allowances. But most provinces have not updated the criteria since the 1990s (Luo, 2016). For example, the allowance for l2 h of continuous night work is RMB4.4. While Guangdong, China's largest industrial province, has yet to establish night shift allowance guidelines.

The continuous change from day shift to night shift is harmful to workers’ health (Wang et al., 2011). This is a concern raised by several riders when comparing factory work with on-demand work. Workers can’t refuse work shifts due to the unequal bargaining power, and the current small amount of night shift allowance falls far short of making up for the harm.

You do not know how hard it is to work at night. We took turns, two days were the day shift, then two days were the night shift, you could not get used to it, it changed. (HZ22, 30, male, a rider with more than 3 years’ experience)

Some riders work late at night or even the whole night. As stated before, the difference is that they have the flexibility to decide for themselves. More importantly, the piece rate is higher than in daytime, and the orders are usually fewer, which mean they don’t need to keep delivering all the time and can sometimes take a nap.

Flexibility to Enter: Ubiquitous Age and Gender Discrimination

There is no unified equality legislation in China; the provisions on anti-discrimination are scattered across several laws, ⁷ the majority of which are general principles aimed at promoting the idea of equality but lacking particular guidance (Zhang, 2011). Remedies are limited; those who suffered discrimination can only resort to the courts if they can provide enough evidence.

One of the most serious forms of discrimination in the job market in China, age discrimination, is not specified in the legislation. The Employment Promotion Law, Article 3 states ‘The workers seeking employment shall not be subject to discrimination on the basis of ethnicity, race, gender, religious belief, etc.’ Age discrimination was explicitly included in the draft Law, but it was removed when the draft was finally passed. Due to a lack of regulation, businesses, government organisations and institutions of all types have been emboldened to discriminate based on age, and it has become prevalent (Wang, 2010). Blatant age discrimination appeared on nearly all kinds of recruitment notices. Provisions on Recruitment of Civil Servants (for Trial Implementation) (passed in 2007 and revised in 2019) followed the abolished Interim Regulations on State Civil Servants, which stipulated that applicants must be over 18 and under 35 years old, leading to the perception that high-quality workforces are those under 35 years old in other industries (Ai, 2021). ‘Under 35 years old’ has been a clear requirement on most recruitment notices since then. According to a recent report on the Employment of Middle Aged and Senior Aged Job Seekers published by the influential recruitment website Zhilian Zhaopin in 2021, 80.1% of job seekers over 35 years old believe age is the biggest obstacle to finding a new job, 20.6% of respondents aged 51 to 55 had been dismissed because of their age, and middle aged and senior aged job seekers with poor educational background face more pressure in finding work. ⁸ With senior job seekers, the question isn’t always whether they have freedom or flexibility, but rather whether they can get hired at all. Even where they have a job, discrimination is common when it comes to promotion.

A considerable proportion of riders are aged above 35, according to the reports from the two biggest food delivery platforms (Fengniao Peisong, 2018; Meituan Research, 2020). Generally, the older riders are, the less educated they are. Some of them only have a primary school education, which means they will certainly get the worst positions in the labour market, or part-time jobs with the lowest pay, or will be unemployed. They don’t even have the qualifications to apply for assembly line jobs. Nearly all the semi- or unskilled jobs with Foxconn are only open to applicants from 18 to 45 or even 38. ⁹ The qualifications for riders are far more lenient; anyone aged 18 to 60 (Ele.me) or 57 (Meituan) can apply, and there are no educational prerequisites.

Gender discrimination has received more attention in legislation than age discrimination. In addition to the laws mentioned above, the Law on the Protection of Women's Rights and Interests and related regulations also address this issue. However, the same shortcomings as with other legislation prevent women from being treated equally with men in the job market. Chinese women have suffered unfair treatment either in job opportunities, salary, or unpaid domestic care (Liu et al., 2014). Despite the fact that the female labour force participation rate is not lower, it has been declining in recent years (ILO, 2023).

In fact, women have been suffering more difficulties in the job market with the announcement of the ‘universal two-child policy’ in 2015, following more than 30 years of one-child policies, due to the aging population. The Ministry of Human Resources and Social Security, Ministry of Education and Seven other departments issued the Circular on Further Regulating the Recruitment of Employees to Promote the Employment of Women in 2019, by prohibiting specific types of discrimination in the recruitment process but has yet to yield significant results. Furthermore, when the labour market is affected by negative influences, such as the COVID-19 pandemic, female workers are more likely to be impacted and compelled to leave the labour market (Wang and Ge, 2021). Informal employment has become the main channel for women (Xie, 2021). Women have fewer options than men, particularly those from rural areas with limited education; assembly line or informal jobs are almost their only options, and age discrimination is another barrier. On the other hand, platforms do not impose any limits on women who choose to ride. Women account for nearly 9% of riders across the two platforms, with varying ages (Fengniao Peisong, 2018; Meituan Research, 2018).

For unskilled or semi-skilled young women, it is probably not hard to find a job in the manufacturing or service industries, but both usually require to extra work time or shift work, which mean they can’t take care of their families. In order to have both, making money and taking care of dependants and household chores, many women ‘voluntarily’ choose to be on-demand riders. Recruiting female riders is more challenging than male riders as they are so busy switching between food delivery and domestic work. Only two female participants were recruited in the research, one's son is a left-behind child, while the other who resided in Changsha told me her timetable:

I go out at around 10:00 am, so I can send my son to school in the morning, I usually take flexible slots, so I have time to pick up my son in the afternoon, I send him home and continue to deliver. After I finish my supper time slot, I can get home before 9:00pm, so I still have some time to check his homework. (CS7, 35, female, a rider with more than one year's experience)

Conclusion

My research into migrant workers’ everyday experiences in the on-demand delivery sector and manufacturing demonstrates that they confront situations and make decisions based, in part, on how they experience and interpret labour laws and their legal meanings, which is their legal consciousness. When workers act ‘before the law’, labour laws are more like an external apparatus operating on them. Most migrant riders never doubt the justice and objectivity of existing labour laws, nor do they believe they have the ability to influence labour laws or define their meanings and purposes. Laws are seen as a precondition for them to make decisions; for example, they never question the impartiality or legitimacy of minimum wage regulations during the interviews. When it comes to migrant riders acting ‘with the law’, they are all too aware of the limited resources and knowledge they possess. This awareness reflects their view of the law as a last resort in pursuing their interests, especially in direct conflicts with manufacturing owners. More importantly, without statutory protection, they don’t have many opportunities to collectively negotiate for better terms and conditions, such as securing improved rest breaks. The strict ban on independent unions and the unclear legal status of the right to strike in China contribute to riders’ perception that they have only very limited opportunities to engage with the laws (Lin, 2022). The party-led All-China Federation of Trade Unions is the only lawful trade union in China, although rising labour unrest in the late 2010s pushed ACFTU and its affiliates to make some reforms to be more proactive in collective bargaining and to promote workers’ terms and conditions. However, the majority of the interviewees have not been covered by or benefited from trade union activities. In the naturally unequal bargaining relationship and without sufficient sanctions and strong trade union support, migrant workers in manufacturing have limited opportunities to use or play the rules to their advantage. It is more practical for migrant workers to act ‘against the law’ by quitting. They submit to the law's authority and accept the burden it imposes, but do so without having to bear its full weight. They ‘escape’ it, without leaving it (Ewick and Silbey, 1998).

What specifically enables migrant workers to react in this manner of going ‘against the law’? The research concluded that in a country with long-term weak social welfare protection for rural residents, wages or labour remuneration are the fundamental criteria for riders when they determine the reasonableness and legitimacy of the type of work or work conditions. This perception of work as a means of providing economic conditions for survival is clearly expressed in the daily language and actions of migrant riders. The current wage laws have not made manufacturing comparatively attractive to workers. Flexibility and freedom are also important factors for workers who enter into food delivery, particularly when compared to rigid shift work, poor rest breaks rules, and the ubiquitous age and gender discrimination in manufacturing. In contrast to the compulsory overtime system characteristic of assembly line work, on-demand workers might have a sense of control over their working time—at least they can turn off their phones without incurring direct punishment. Worker acquiescence in the face of the degradations and hardships of on-demand work may result, in part, from prior experience on the assembly lines. Combining together the income, flexibility and freedom, the choice to become a rider makes complete sense.

While rights such as health and safety, rest, holiday pay, and human dignity are fundamental aspects of labour rights, many migrant workers are often treated as secondary criteria. With China's long-term unequal and relatively basic social security system, rural citizens receive very limited support, especially in terms of pensions, leading them to develop a self-reliant mindset. The current labour laws encourage or allow factory employers to cultivate a culture of low wages, with reliance on overtime work and a lack of flexibility or freedom in working conditions. Transitioning the existing social security system towards greater equity and enhancement, while dissuading the perpetuation of a low-wage culture, along with the implementation of meticulous labour legislation, holds the potential to shift the prevailing negative cycle towards a positive and sustainable trajectory in the future.