Font Size: a A A

Legal Issues Of Protection Of Right Of Labor On Merger And Acquisition Of Enterprises

Posted on:2011-10-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:B XiaoFull Text:PDF
GTID:1116360305958003Subject:Constitutionalism and the rule of law
Abstract/Summary:PDF Full Text Request
In modern society, except for a few who own property, most people and their family members must rely on labor to get labor income in order to maintain survival and development. Labor has a significant impact on fate of most people. Because the labor force and the laborers can not be separated that the protection of right of labor has special significance. Merger and acquisition of enterprises have become a surging trend in China. Merger and acquisition of enterprises which conducive to economic efficiency can enhance the competitiveness of enterprises, adjust industrial structure and promote local economic development. Through merger and acquisition of enterprises some subjects can gain enormous benefits, for example, the employers can achieve interests and the local governments can increase performance. In the process of merger and acquisition of enterprises,laborers are easily be neglected and precisely suffer the hardest hit caused by M&A. As the great change laborers'original normal life is completely broken. Reducing the staff and sudden change of working conditions, laborers are difficult to profit from M&A and the right of labor could even seriously trespassed. Encroachment on the right of labor causes laborers difficult to survive and not only affects the labor productivity but also provokes resistance and acts that disrupt social order. For a long time, laborers can not share benefits of enterprises' economic growth, so they can not obtain satisfaction of social reality and have made a negative assessment of cognition. The right of labor has been infringed repeatedly in the process of M&A and even the right of existence has been disfranchised. As a result, lots of laborers own a high degree of social tension due to extremely lack of security in the enterprises. Disenfranchisement of the right of labor leads to social distrust and a sense of social injustice. Disappointment and even angry intensify the conflicts of interests between employers and employees, and also deepen emotional confrontation between the rich and the poor. If the problems of protection of right of labor are not resolved well, not only the laborers but also the employers and the shareholders will become victims. The results of industrial conflicts will lead to excesses of violence of the laborers, meanwhile, the results will affect the social order and political stability, undermine people's stability and unity, give opportunities to those who carry ill intentions to sow discord and ultimately harm the country and the people. Issues of right of labor relate to social stability, the state transition and sustainable economic development.Only the problems of right of labor have been solved, the laborers, the employers and the state can gain co-benefits.On merger and acquisition of enterprises, enterprises of both sides are only concerned with whether a transaction is profitable. Whether China's current legislation or academic research, the main concern is the rights of buyers and sellers, as well as the loss of state-owned assets, such as the assessment of the state-owned enterprise assets, protection of shareholders'rights and interests, etc. Issues of the right of labor on M&A are neglected, while the legislation in many countries abroad not only focus on the protection of right of labor on M&A, but also make it as a prerequisite for approval of M&A. As China has gone deep into reform and opening, M&A has become frequent and laborers are often discharged in the process. Laborers who remain in the enterprises the right of labor is also infringed. Whether laborers are dismissed or not, the rights of labor are both likely to be infringed and the remedy has different emphases. The protection of laborers'right of labor on M&A has a significant relationship with the unity and social stability, but in the reality of society, especially in the process of M&A, laborers'right of labor throughout lack of effective safeguard. Infringement of the right of labor due to employers' chase of profits maximization and the negligence of laborers'legal rights. Labor employment legislation is not complete in our country, and the power between laborers and employers is seriously imbalanced. The pursuit of performance and introduction of foreign capital cause local governments'indulgence of illegal acts of employers.The protection of right of labor is a complicated systematic project, and the right of labor theories guide us to make a series of reasonable specific systems. The right of labor theories including theory of human rights, interests of the game theory, government's responsibility to protect the rights, theory of wealth creation, protection of vulnerable principle, theory of contracts inheritance, etc. Those theories illustrate the value of the protection of the right of labor and the value guide will consistently throughout the system construction of the protection of the right of labor. The aim of M&A is increasing the economic efficiency of enterprises, but the completion of M&A will not automatically increases economic efficiency. Laborers are the enterprises' wealth creators and the enterprises'long-term development is inseparable from the hard work of laborers. The protection of the right of labor is the protection of laborers. Older employees are the backbone of business, but the frail older laborers are precisely the most vulnerable group on M&A. The Art of War in particular about " win hearts and minds", those enterprises crazy squeeze on laborers to maintain hard-earned business will be eliminated in market competition. Enterprises should convert the concept of treating laborers. Through the protection of the vulnerable groups of laborers enterprises demonstrate moral strength, so that the laborers have a sense of belonging and obtain strong identity. As the enterprises win the staffs'sincere, in the future development of the enterprise, the laborers will strive to provide better quality of labor to promote business growth of enterprises'assets.According to the consitution the state has obligations to protect laborers' right of labor. In order to protect the right of labor effectively, the state power must be enhanced and our country must establish a comprehensive and integrated protection system from three levels of legislative, executive and judicial. Through the continuous development of society and changing economic conditions, the legislative of state can not provide exhaustive and specific protection for laborers of all industries and areas in the complex reality of environment. However, every legal system aims to meet the needs of society. As long as the legislation of the protection of right of labor bases on laborers, through the formulation of laws and regulations we can achieve these objectives which including defining the degree and scope of protection of right of labor, prescribing the reasonable standard, regulating employers'acts and adjusting relationship concerning rights and liabilities between laborers and employers. Only when the legislation is resolved the other follow-up issues can be resolved. The legislation can not operate on its own. There will always be the distance between the rule of law and legal practice. The lack of implementation will inevitably make perfect legal system just to fight only on paper. To realize laborers'legal rights the state must exert administrative functions to protect right of labor and correct its guiding ideology. Meanwhile, the state shall make strict administrative penalties for illegal enterprises and improve the market rules and public policies to protect right of labor as the core. Through administrative enforcement and regulation of government to fulfil the protection, the rights need to be protected by the corresponding rules and full implementation. Judicial relief is an important way to ensure the realization of rights. In the judicial practice of rights relief laborers face difficult problems such as complicated procedures, high cost and difficulty in enforcement of cases. In order to resolvet these problems we need to establish labor courts, highlight the effectiveness of judicial relief in judicial reform and allow the court enjoy the right of supervisory review.Merger and acquisition of enterprises aggravate contradictions and conflicts between laborers and employers. There is serious imbalance between laborers and employers, so the attitude to lay aside the state power and insisting on laborers'autonomy under the reality of this situation is equal to stand on the strong position and regardless of the weak. Finally the weak laborers'rights and interests have been arbitrarily trampled again and again. In the field of labor and employment, the intervention of our country is not excessive but inadequate. The occupational safety of laborers and the protection of right of labor are based on harmonious and stable relations between laborers and employers. Harmonious industrial relations are not only directly related with the protection of right of labor and enterprises'long-term development, but also have a major impact on the maintenance of human living space in the society, the promotion of national economic prosperity and the strength of comprehensive national power. Laborers are the enterprises'wealth creators. In some cases, laborers and enterprises will appear antagonistic, but more often the employers and the employees are a interests community. The majority of industrial relations have shown a sharp confrontation, which mainly due to employers have always wrongly corporate profits and the protection of right of labor against each other. Labor creates wealth. Enterprises'culture, brand and market influence need labors'long-term accumulation of labor. The laborers are the key promoters of enterprises'long-term development. Enterprises should correct the misconception that laborers are burden. The construction of harmonious industrial relations needs correct ideals as guide, such as laborers-oriented, fairness and justice, community of interests of laborers and employers, obligations and responsibilities, etc. Through the legislation and public policies enterprises will take the obligation of protecting the right of labor. Establish a series specific systems which can form harmonious industrial relations, such as dismissal protection for laborers, laborers'participation on enterprises'management, vocational training of laborers, economic compensation of laborers, supporting of small and medium enterprises of creating jobs, etc. These specific systems will make industrial relations co-ordination and balance.The protection of right of labor in the process of merger and acquisition of enterprises concerning to the state, enterprises and other subjects of obligation take their own responsibilities. In this process, laborers can not await their doom. Just waitting passively for others'aids will only make the weak more incompetent. Laborers must enhance the overall quality of their own and cultivate the protection strength positively. Laborers should make full use of trade unions, staff representatives and even the non-governmental organizations to safeguard their rights. In order to avoid infringement to the right of labor, laborers should utilize anti-M&A measures to prevent the process of M&A. Laborers need to develop their own capacity effectively from various aspects to safeguard their rights.
Keywords/Search Tags:merger and acquisition of enterprises, protection of right of labor, legal issues, state power, industrial relations
PDF Full Text Request
Related items