The Paper's reporter Xu Zhenhua
On April 18, Guo Peiyang, a riveter from Henan Province, planned to board a flight back to China from Kuala Lumpur, Malaysia. He was one of five Chinese workers stranded in the Immigration Department's camp in Pekanana, Malaysia, and the last of the five to await repatriation.
However, the flight was circuited down to comply with the requirements of epidemic prevention and control. On March 22, Guo Peiyang's wife, Xiaoyan (pseudonym), learned of this information from a ticketing agent. According to the Civil Aviation Administration of China, on March 21 and 22, the Civil Aviation Administration issued circuit breaker instructions to implement circuit breaker measures on Malaysia Airlines Flight MH376 (Kuala Lumpur to Guangzhou) and other flights. The flight has been suspended twice since 11 April.
The meltdown was another major blow to Xiao Yan: it had been a full year since her husband had left home to make a living in Indonesia.
In March last year, Guo Peiyang and four other co-workers were introduced to work in the nickel mining park in Sulawesi, Indonesia, without knowing the nature of the visa. However, a number of cases show that in the places where they work, the seizure of passports, non-compliant visa entry, non-compliance with contracts or non-signing, and deduction of wages are more common. After much deliberation, Guo Peiyang and five other workers decided to resign and return to China in June 2021, but they waited for three months and could not get their passports back, nor did they obtain arrangements from the outsourcing company and the head office to return to China.
On 19 September 2021, the families of the five received urgent information for help and found that five laborers had been smuggled to Malaysia through "smugglers" from Indonesia and Malaysia, and were quickly arrested by local troops off the coast of Johor. It turned out that the five people were desperate because they could not return to China, and under the persuasion of the rampant local "snakehead group", they decided to take a desperate risk and smuggled into Malaysia to try to return to China under the arrangement of the snakehead.
Subsequently, the five detainees were detained for a long time at the Pekanana Immigration Office. From December 24 last year to the end of February this year, four workers have returned to China one after another. At present, only Guo Peiyang is still waiting for repatriation at the Immigration Bureau.
"As long as there is any hope, I will find a way to work hard, I only hope that my husband can return to China as soon as possible." In an interview with the surging news (www.thepaper.cn), Xiaoyan said, "He is alone in the immigration bureau, which is particularly difficult. I get his phone calls occasionally, and I'm sad to hear him. ”
The ticket agent and The Little Goose communicate about the flight circuit breaker
When will the last worker return home?
According to Xiao Yan's account, Guo Peiyang's unfinished road back to China can be described as a series of twists and turns.
On November 17, 2021, Wang Lan, the wife of detained worker Zhang Qiang, grabbed five Xiamen Airlines tickets through tickets, each 28,000 yuan, scheduled to return to China on December 3, 2021. The family members thought they would soon be able to return home, but after sending the ticket number and itinerary file to the embassy, they received a reply: according to the epidemic prevention requirements, each immigration detention camp in Malaysia can only arrange for up to 4 people to be repatriated on each flight.
On November 18, 2021, Xiamen Airlines made a decision to refuse to board due to the epidemic. After the family fought with Malaysian lawyer Liu Yilong, and the Chinese Embassy in Malaysia communicated with Xiamen Airlines, Xiamen Airlines finally agreed to transport 5 people. However, no more than 2 people can be boarded at a time and must be divided into 3 batches: 24 December 2021, 14 January 2022 and 4 February 2022.
The family members had difficulty deciding the order of return of the five laborers, and they hoped from the bottom of their hearts that the five could return to China together, which made the five wives feel tormented and entangled.
However, wei Pengjie was the only one who successfully boarded the december 24, 2021 flight. For ordinary passengers, there is still a chance for retesting of abnormal nucleic acid tests; but for these workers waiting for repatriation, as long as one step of the testing link is abnormal, it means that the repatriation opportunity is invalid and must be postponed.
Guo Peiyang became the one who was unfortunately hit. He did two nucleic acid test results as required before boarding in January this year, one clinic was negative and the other was positive, because he could not apply for retesting in time, Guo Peiyang directly lost the opportunity to repatriate, and thus became an "infected person" identified by Xiamen Airlines, and needed to wait 3 months to board the Xiamen flight.
In January, when Guo Peiyang lost a precious opportunity, four wives, including Xiaoyan, could not wait for their husbands to return. It was not until February 4 that Zhang Qiang and Tian Mingxin flew back to China by plane in Malaysia, and on February 28, Zhang Zhenjie successfully returned to China via Malaysia Airlines flight.
On January 26, guo Peiyang applied for a nucleic acid test result that was negative. After Liu Yilong reflected the test results to the Chinese Embassy in Malaysia, the embassy responded that Guo Peiyang was a qualified person to be repatriated. For Xiaoyan and Guo Peiyang, the only obstacle to achieving reunion is the proper flight arrangement.
In an email communicated between Xiaoyan and the embassy in Malaysia, the embassy said that Guo Peiyang had "recovered and confirmed".
Because the procedures required by Malaysia Airlines are simpler than those of Xiamen Airlines, Xiao Yan decided to buy another Malaysia Airlines ticket. According to Malaysia Airlines' requirements, if a passenger is unable to board the aircraft due to an abnormal nucleic acid test, the airline cannot pay compensation. "Even so, I still have to choose Malaysia Airlines." It is better to gamble, and be sure to let your husband go home earlier. Xiao Yan said.
After applying for his family and coordinating with his lawyer and the Malaysian Immigration Bureau, Guo Peiyang was scheduled to board Malaysia Airlines' return flight on April 18. The meltdown order issued on March 22 once again shattered Xiao Yan and Guo Peiyang's dream of reunion.
It's late April. Unable to wait for her husband Guo Peiyang to return for a long time, Xiao Yan really felt that "living like a year". In addition to digesting the emotions of not being able to reunite with her husband, she also needs to take care of the elderly and children at the same time; the cost of airfare and nucleic acid testing has added to the financial burden of the already poor family, so Xiaoyan chose to go out to work and work hard with Guo Peiyang's father.
"I haven't seen him in a year, and my heart is particularly difficult." If it could be swapped, I'd rather be in the immigration office myself and let him be outside. Xiao Yan sighed.
Today, Malaysia Airlines has "no way to go", and Xiaoyan is back on the road of bringing her husband back to China through Xiamen Airlines. When purchasing a Malaysia Airlines ticket, she "gritted her teeth" and did not return the ticket and repatriation seat of Xiamen Airlines, hoping that her husband would not fall into the despair of not being able to return home; in addition, because the Malaysia Airlines flight was cancelled by the circuit breaker order, rather than the passenger's personal nucleic acid testing situation, Xiao Yan could get a full refund.
According to the xiamen flight arrangement, Guo Peiyang is expected to board the return flight on May 20. At this time, the requirements of Xiamen Airlines that "people infected with the new crown need to recover for 3 months before boarding the flight" have been met. Xiao Yan said, "I have no other expectations, I only hope that Guo Peiyang can come back quickly." As long as others set foot on Chinese territory... I don't want him to be depressed and miserable in the immigration office, or even die in a foreign country. ”
Since this time, Xiaoyan has been sending emails to the Embassy in Malaysia and Xiamen Airlines, hoping to get a clear answer on Guo Peiyang's itinerary. "Every day is very anxious, and only by doing a little bit of work can you feel solid." Xiao Yan said. Her emotions are already struggling to sustain new changes.
"We confirmed with Xiamen Airlines how to conduct nucleic acid testing 24 hours and 12 hours before departure." Liu Yilong told the surging news.
Email of communication between Xiao Yan and the Embassy in Malaysia. Xiao Yan hopes to do everything possible to get her husband to return to China as soon as possible.
Why is the road to repatriation so difficult?
As early as October 6, 2021, the Malaysian side made a decision not to prosecute Guo Peiyang, Zhang Qiang, Zhang Zhenjie, Wei Pengjie, Tian Mingxin and five other people who had smuggled into the country, and directly started the repatriation procedure.
However, the initiation of the repatriation process means that another round of tests for the five workers and their families has just begun: the repatriation process involves the purchase of tickets through non-ordinary passenger channels, the application for repatriation quotas and "card slots", multiple rounds of epidemic prevention testing, the struggle for isolation in overcrowded detention camps, and the need to communicate between family members, detained workers, family members and workers' lawyers, various airlines, local immigration bureaus, and the mainland's embassy in Malaysia.
Xiamen Airlines has always required that repatriated personnel need to do nucleic acid testing and chest CT every 7 days starting from 21 days before departure after purchasing entry tickets, and two more nucleic acid tests at two different hospitals two days before taking the plane. All 4 nucleic acid tests must be negative before boarding is allowed. To board the plane successfully, you can't make a mistake at every step.
Xiamen Airlines' latest requirements have compressed the time of the two "double nucleic acid" tests before boarding to 24 hours in advance and 12 hours in advance.
According to workers and their families, waiting for repatriation is a long and iterative process. Due to Malaysian epidemic prevention policies, it is difficult for the lawyers representing the five workers in Malaysia to contact them directly, and the families must pay an additional fee to the Malaysian immigration department administrators to obtain telephone calls with the workers, so as to understand the needs, physical and mental conditions of the workers and the situation in the detention camp.
Families and lawyers need to coordinate with all parties to finalize the repatriation process that is specific to the individual. The repatriation schedule and timing of the five workers varied, and it was not possible to repatriate five workers at the same time. In addition, in order to meet the needs of epidemic prevention, the five-person lawyer needs to apply for a COVID-19 nucleic acid test from the Malaysian Immigration Bureau for each worker several times, and each person needs hundreds of yuan for each test.
With limited seating for repatriation flights, workers to be repatriated are under enormous mental stress. "We don't think about it every day, and we are afraid that we will die in the detention camp." Wei Pengjie, who successfully returned to China at the end of December last year, told The Paper. Poor sanitation in the pediment camps in Pekanana has left workers constantly worried that they will contract COVID-19 or other diseases due to unhygienic food and overcrowding of camp personnel. Because of this, once their COVID-19 testing goes wrong, they have to spend more time and money waiting for their test indicators to meet the requirements.
But detention camps have never been as comprehensive as quarantined hotels for ordinary passengers, so workers have repeatedly been caught up in the process of waiting and anxiety, which has also made families as far away as China feel more anxious.
The burdens of life and the question of rights
Four of the five workers have returned to the country. On the one hand, they have to re-assume family responsibilities and go out to work to help the family and pay off debts. On the other hand, the five believe that they are victims of the phenomenon of illegal transnational labor dispatch and are preparing materials in the hope of seeking justice through administrative and legal means.
Wei Pengjie and four others have successively completed the epidemic prevention and isolation procedures required for the place of entry and place of origin, and have now returned to work. Wei Pengjie told the surging news that he was learning pump truck technology and hoped to apply it as soon as possible; Zhang Zhenjie was also "looking for work" to do it.
The four were also concerned about Guo Peiyang's progress. "At that time, when I saw Guo Peiyang's test results, I felt very uncomfortable, and I was even worried that this was the snakehead retaliating against us." Wei Pengjie said, "I will also call Xiaoyan and Guo Peiyang, hoping to comfort their husband and wife." ”
The road to the rights of the five people is not easy. The first difficulty is to determine the relationship of authority and responsibility. Zhou Zhen, a lawyer at Beijing ProMed Law Firm, told The Paper that according to the available public information, it is still uncertain whether there is an employment relationship between them and Jiangsu Delong Nickel Co., Ltd. According to the contract text provided by the five people, the agreed employer is Jiangsu Rongcheng Environmental Protection Engineering Co., Ltd.
However, Zhou Zhen also believes that although the above five people are recruited through intermediary agencies, sign labor contracts, and establish labor relations with intermediary agencies, Jiangsu Delong Company is still an employing unit for them, with obligations such as providing corresponding labor conditions and labor protection, informing work requirements and remuneration, conducting necessary training, and not reassigning workers to other employers.
Liang Weiyan, head of the "Handshake Worker Hotline Project" of the NGO Yingnuo Community Development Agency, analyzed to the surging news that although the five workers believed that the contract provided to them was a "overlord contract" and therefore did not sign it, whether the labor contract involved the "overlord clause" needed to be proved by judicial procedures.
Liang Weiyan is also pessimistic about Jiangsu Delong Company's responsibility for the five-person incident, because there is no evidence that there is an employment relationship or labor relationship between Jiangsu Delong Company and the workers.
However, Liang Weiyan added that foreign labor cooperation does increase legal complexity, but in the absence of a contract, the five people were organized to work abroad in itself in violation of the Regulations on the Administration of Foreign Labor Service Cooperation. Liang Weiyan said: "The product born on the basis of structural irrationality is not reasonable in itself. Instead of focusing on whether to sign a contract, we should let the workers who work abroad can clearly weigh and maximize their rights and interests from the source. ”
Zhou Zhen analyzed the surging news and said that if the actual rights and interests of labor service personnel abroad do not conform to the contract, the foreign labor service cooperative enterprise shall assist the labor service personnel to safeguard the legitimate rights and interests of the labor service personnel, and require the foreign employer to perform the agreed obligations and compensate for the losses; if the labor service personnel have not received the due compensation, they have the right to request the foreign labor service cooperative enterprise to bear the corresponding compensation liability. If a foreign labor service cooperative enterprise does not assist the labor service personnel to claim compensation from the foreign employer, the labor service personnel may directly claim compensation from the foreign labor service cooperative enterprise.
Zhang Zhenjie provided a screenshot of the contracting company's work group, which he used to refute Rongcheng Environmental Protection Engineering Co., Ltd.'s claim that "five Henan workers have nothing to do with the company".
According to Liang Weiyan's analysis, if no labor contract is signed, the worker can apply for arbitration through the labor arbitration commission of the place where the enterprise is registered, and claim compensation on the grounds of the existence of a de facto labor relationship. However, the establishment of de facto labor relations requires key and powerful evidence and basis. As far as migrant workers are concerned, if there is no labor contract signed, after returning to China, the laborer can apply for arbitration at the labor arbitration commission of the place where the expatriate enterprise is registered, and claim compensation on the grounds that there is a factual labor relationship; if the expatriate enterprise has overseas labor dispatch qualifications, but has not signed a contract with the migrant worker abroad, nor has it gone through formal procedures abroad and a dispute arises, the migrant worker can negotiate with the domestic expatriate enterprise to request assistance in claiming compensation from the foreign party, or require the expatriate enterprise to compensate The parties concerned and their close relatives may report to the relevant departments about the illegal acts of the expatriate enterprise, and once the government department intervenes, it can play a role in promoting the success of rights protection.
The four workers who have already returned to China are still waiting for Guo Peiyang to return to China. Once the five are reunited, they will initiate administrative and legal avenues for their rights protection. "If an employee enters into an employment relationship with an enterprise within the territory of China, requests confirmation of the labor relationship or payment of labor remuneration, or requests compensation for damages caused by a work-related accident, he may apply for legal aid in accordance with the law and obtain legal advice or legal services without compensation." (In accordance with the Legal Aid Law of the People's Republic of China). Zhou Zhen said.
"If there is an employment relationship between the employee and Jiangsu Delong Company, the company shall bear the main responsibility of the employer, pay labor remuneration, pay social insurance, and bear the liability for compensation for work injuries in accordance with the law." Zhou Zhen said, "If the worker has returned to China and the existing evidence can determine the labor relationship, the employee can apply for arbitration to the labor and personnel dispute arbitration commission in the place of residence of the employer, claiming wage remuneration and corresponding compensation or compensation." If the existing evidence cannot determine the labor relationship, the employee may collect evidence and file a lawsuit with the court of the place of residence of the employing unit on the grounds of labor dispute and claim labor fees; if there is personal injury, it can provide the laborer to file a lawsuit on the grounds of the dispute over the liability of the laborer to claim compensation for personal injury. At the same time, labor personnel have the right to complain to the administrative departments of commerce, public security and industry and commerce about the illegal contractual provisions of foreign labor cooperative enterprises or other acts that infringe on the legitimate rights and interests of labor service personnel. ”
Responsible editor: Zhang Wuwei Photo editor: Jiang Lidong
Proofreader: Ding Xiao