Study On The Legal Effectiveness Of Enterprise Labor Regulations

With the scale enlargement of the modern enterprises, the increasing number of employee and the complex of the labor division and coorporation, the contractual nature of labor relations confronts with more and more serious challenges. According to the contractual nature of labor relations, the related items in the labor relations, especially these related to the private interests of the labor directly, should be agreed by contract based on the negotiation. However, for the meeds of enterprise management and convenience and the costs saving, almost without exception, the modern enterprises tend to regulate the working conditions and rights and obligations of both employers and employees, which should be agreed by labor contract, by enterprise labor regulations unilaterally as the basis of contract and labor relations. As a result, labors have no choice except accept or refuse about the changes of labor regulations made by the enterprise. Therefore, enterprise can decide the contents of the labor contract and the working conditions unilaterally and the enterprise labor regulations become the main basis which regulate the workers rights and obligations. While, there are several questions arising: what kind of status of enterprise labor regulations in labor law? What is the legal basis on which it binds both relatives in labor relations? What are the relations among it and labor contracts and collective contracts? How to protect the labors' legitimate rights and interests? How to indicate the contractual nature of labor relations? etc.There are divergent views rather than consensus opinion about these questions. Given these confusions, this dissertation clarified the legitimate effectiveness basis, the necessities to "be effective" and "in force", legitimate contents and "invalidity" and "not rectification" of enterprise labor regulations, aimed at balancing the necessities of production and the protection of workers' rights, and coordinating the unilateral nature of the labor regulations' maker and the contractual nature of labor relations, and try to explore the legal effects and related issues of labor regulations in-depth.The dissertation can be divided into six chapters as follows:Chapter one introduces the conception and connotation of enterprise labor regulations. Having been influenced by the long-term plan economy, there are various views in China about the conception and connotation of labor regulations, and it's relations with labor contract, labor discipline, and command and management of enterprise, etc. This chapter points out that labor regulations bind the behaviour of workers and enterprise during the working process. It has dual purpose and function that is not only ensuring the realization of enterprises' productive purpose, but also protecting the workers' legitimate rights and interests.Chapter two narrates the legal nature and legislative model of enterprise labor regulations and demonstrates the evidences that the labor regulations have its legal effects. The chapter firstly analyses the different theories about the legal nature of labor regulations, then gets two basic conclusions: the direct reason for the legal nature of labor regulations is the contradiction between the dominant position of private enterprises and the legal effects of labor regulations, that is, the paradox of the reality that the enterprises can make or change the labor regulations unilaterally and the legal effects of labor regulations; the fundamental reason is the contradiction between the necessities of the enterprises' production and management and the protection of the workers' rights and interests. The second parts narrates the legal nature and the formulation and process to be in force of labor regulations. It maintains that the two basic elements of labor regulations are the requirements of the enterprises and the protection of the labors' rights, that is, labor regulations had been composed of the effective parts of the contract which based on the consensual decision of the employers and employees and the authorized legally binding parts which had been produced by the business management, thus the legal nature of it is multiple. As for its formulation and process to be in force, based upon the dichotomization of contents, in order to coordinate the relation of labor regulations and contract and maximum respect to the contractual nature of labor relations, this article makes different arrangements to the formulation and process to be in force of labor regulations according to the phase of labor contract, workers' legal status during the existence of labor relations and the fundamental difference of their legal relations. Parts three analyses our contemporary legal system of labor regulations, points out that the fully-authorized legislative model which is adopted in our country easily leads to an imbalance between employers and employees and the imaginary of labor contract, and advocates the implementation of limited-authorized legislative model based on the correct recognize of labor regulations.Chapter three narrates the necessities needed when the labor regulations are to "be effective" and to "be in force" for the first time in academia. The chapter firstly distinguishes the difference of labor regulations between "be effective" and "be in force", they have natural distinction. To "be effective" means the labor regulations that companies formulate or change is in conformity with the law and therefore has legal effectiveness. To "be in force" means the effective labor regulations can bind workers' requirements legally in reality. The effective labor regulations may not come into force, but the valid labor regulations should be certainly effective. Part two analyses the effective necessities of labor regulations from the maker, contents and process, etc. The third parts analyses the "in force" necessities of labor regulations, including the ordinary necessities and special necessities. The former represents the public process of the labor regulations. The latter represents in the stage of the labor relationships continue to exist, the enterprise has the right to make changes to the labor rules, but if the changes are adverse to the labors, they have to be consented by the labors, otherwise, they will be ineffective on the existing workers.Chapter four introduces the concrete contents of the legal effectiveness of labor regulations from the effectiveness scope and level, and points out that labor contracts and collective contracts take precedence over the labor regulations in the legal effect of hierarchy; However, if labor regulations is more favorable to workers than the labor contracts and collective contracts, they will have priority to apply the provisions of labor regulations. In response to the third chapter, chapter five narrates the reasons why the labor regulations is "invalid" and "not rectification", the legal consequences, and the specific ways to find the invalid labor regulations, that is, the workers' appeals process and the judicial relief procedures. "Invalid" means the labor regulations has no legal effect by itself, while "not rectification" represents that the enterprise should not force its legal effect on workers. The reason for "Invalid" includes the maker, contents and making process, on the other hand, the reason for "not rectification" Includes: first, enterprises had not make announcement publicly in accordance with the law. Second, during the existence of labor relations, the changes which are adverse to workers had not been consent with the collective labors.Chapter six talks about the protection mechanism of labor regulations, that is labor discipline and the enterprises' punishment rights. The chapter discusses the existence legal bases of the enterprises' punishment rights firstly, then points out that the reason why the law granted the enterprises punishment rights. That is based on the consideration about the needs of enterprise production and management and labor relations. Part two discusses how to limit the enterprises punishment rights. First, there must be legal punishment system in the company. Second, the implementation of punishment must have legitimacy, that is, workers' violations must comply with the relevant disciplinary requirements, punishment measures must be appropriate, punishment procedures must be legitimate. Parts three further points out that we should perfect the enterprises' punishment rights, the disciplinary system of supervision and relief procedures, in particular, improve the way of judicial relief. The last part advocates to reconstruct the enterprise punishment system of our country according to the requirements of market economy, in specific, first, to respect the contractual nature of labor relations and give the enterprise the necessary disciplinary autonomy, and gradually realize the transform from business discipline to the default relief. Second, to improve the disciplinary process, the main role of implementation must be neutral, labors must have the right to defense and the means to seek judicial relief, punishment action must be built on the foundation of truth on the public, in writing and be bound by the principle of limitation. At last, to remodel the type of enterprise disciplinary according to the requirements of market economy, to distinguish the enterprise punishment and administrative action, and remove the right to fine of companies and other types of economic punishments.