Study On The Right To Work

In modern society, work is not only a means to earn a living, but an important criterion for division of social classes and allocation of social resources. In the context of social transformation and unemployment treatment, how to treat and understand workers'rights has become an important academic issue and practical problem. In the existing study of labor law, the connotation of the right to work is not clear, related system security mechanisms also need further. In response to the voice for the right to work proposed by workers, aiming to clarify rights and obligations of the state, employers and workers, this dissertation tries to explain a range of issues through the central notion of the right to work: what is the right to work and how to protect this right; what differences exist between workers, and the resulting hierarchical structure of workers has what effect on the realization of the right to work; what differences exist between employers, and the resulting hierarchical structure of employers has what effect on the protection of the right to work; what are the obligations of the state on the protection and remedy of the right to work; what differences exist between the unemployed and employed workers on the right to work; how to build and improve the protection and remedy mechanism of the right to work based on the hierarchical structure of right subjects, etc.The dissertation can be divided into six chapters as follows:Chapter one explains the basic theory the right to work, that answers three basic questions including why the right to work is a legal right, how it becomes a right and what right it is. In the general context, there is no strict distinction among labor, work and employment. This article will define the work as professional subordinative laboring, which characterized by the subject of employee and employer, the essence as a kind of exchange relation, and the key point of direct supervision. On this basis, the paper discriminates the academic theories explaining the right to work, in particular to clarify the relationship of labor right and the right to work, and thus make the point that the right to work is enjoyed by workers to obtain employment assistant and stability, which value embodies safety, efficiency and freedom. The right to work has its specific historical development path in becoming a legal right. It transits from right call to right declaration, then to legal right in west countries, but China first transplanted Western concept and rules of the former Soviet Union successively, and made provisions based on its own conditions. It can be discovered through history that the economic basis of the right to work is the market economy, the political basis is democracy, and the ideological basis is the care for the weak. In the right system, right to work is derived from the right to survive, subordinate to the labor right system, and coordinated with the right of management.Chapter two analyzes the subject structure of the right to work, sets off the hierarchical structures of workers and employers. The tripartite mechanism in labor law and the slant protection principles are based on the weakness hypothesis of workers. However the difference of weakness among workers is extending increasingly. Thus mode and extent of slant protection should be adjusted by dint of the "specific person, the difference person "research perspective. The working group is disintegrating into layers in the context of social transformation and delamination. In order to estimate the identity of worker, the double criterions should be introduced, which is based on subordination. The chief one is "to use productive resources of employers and labor for an employer under direct supervision", and the supplementary one is "to get the same treatment as the other workers". Meanwhile, the levels of workers could be classified as wealth-based workers, the average knowledge-based workers, poor knowledge-based workers based on the standard of "knowledge". The types of employers could be divided into companies, individual businesses and other organizations. There is an evident discrepancy for different types of employers in the labor law practicing. Therefore, large enterprises should be treated differently from the small and medium ones so to better the protection of the right to work.Chapter three refines the right to work of unemployed persons, namely, the right to employment, also discusses the secondary rights including the free choice of employment, the equal right to employment and the right to employment assistance. The right to employment is for the unemployed workers to gain employment assistance, as well as autonomy, equality in the process of seeking to establish professional subordinative affiliation. As the need for employment rights to be protected requires the state to fulfill its obligations, so according to such obligations, the right to employment can be divided into the free choice of employment, the equal right to employment and the right to employment assistance. Free choice of employment ensures workers to choose job according to their own desire, so as to realize their own development. Equal right to employment protect workers to have equal job opportunities, which include formal equality and substantive equality, in other words, former one of equality is for the anti-employment discrimination and exclusion unfair treatment; substantive one of equality is to enable the weaker employment population to participate in competing job opportunities. The right to employment assistance is to guarantee workers the access to national job training, employment guidance and job referral and other employment assistance.Chapter four analyses the right to work of the employed persons, namely, the right to security of tenure, and also describes the limitation of the employer's right to dismiss and the balance of worker's right to resign. The right to security of tenure is for the employed workers to gain access to employment stability and security, which is not only protect the interests of workers, but to balance the rights of both employers and employees, and achieve harmonious and stable labor relations. On one hand the right to security of tenure limits employer's right through the rules of dismissal protection, open-ended employment contract and severance pay. On the other hand the right to security of tenure balances worker's right to resign, thus to applies the service period regulation properly. With such an analysis perspective to review the existing law, the nature of severance pay should be defined as social security payment, and its scope should be adjusted; dismissal protection have laid too much emphasis on the rigidity of the system and should be adjusted under the subject hierarchy; the right to resign is too tilted to the workers, while some necessary restrictions should be imposed; service period regulation should be linked up with other rules by adjusting its scope and liquidated damages and so on.Chapter five discusses protection and remedy mechanisms for the right to work. The protection mechanism should be improved through legislation, institution -building and policy choices -pronged approach: improve the labor contract legislation, make amendments to the system of dismissal protection, severance pay and resign rules so as to set a reasonable allocation rights and obligations of both employers and employees; strengthen the public employment service institution, which is necessary to ensure that financial support and consolidate the social forces to provide quality and efficient employment services; promote the development of the labor market for workers in different levels by establishing corresponding flow mechanism; support special populations'employment, enhance their employability to achieve equal employment. The remedy mechanism should focus on practical results of dispute settlement. Therefore, the justifiability of the right to work should clarified to ensure related disputes could receive judicial review; rules should be established to judge employment discrimination with the objectivist model legislation, to achieve effective management of both direct discrimination and indirect discrimination; labor disputes handling system should be reformed, including the reconstruction of the labor dispute mediation system and the establishment of independent labor dispute litigation, so as to better protection of the legitimate rights and interests of workers.