A Study On Collective Bargaining Rights

Labor relationship is one of the key social relationships. Our country is in theimportant period of strategic opportunities, the contradiction of labor relation issharper while the individual labor relations is transforming to the collective laborrelations. The collective bargaining system is considered as a great social invention ofwest countries, it can effectively resolve the class contradiction between employeesand employers as well as collective labor conflicts, thus is a promising solution forimproving the construction of harmonious labor relations in our country.This dissertation specifies the definition of collective bargaining rights from theperspective of interpretation theory. In order to stay more practical, the deconflictedlegal words like “collective negotiation” and “collective agreement” are avoided. Thecontents, rights, and the infringements of collective bargaining are analyzed for thepurpose of improving legislation while directing practices. Key issues of mostconcerns including the legislation of the right to strike and the independenceconfirmation of labor union are comprehensively analyzed and interpreted for buildinga well-functioned collective bargaining system.First of all, the research significance is illustrated, the values of collectivebargaining in both theory and practice are analyzed, the urgency and importance ofcollective bargaining system are addressed. Furthermore, the research methodologiesare explained, semantic analysis is adopted on defining concepts, empirical analysis isadopted on explaining labor dispute cases, comparative study is adopted on referencingand transplanting legislation experience of foreign countries. Finally, expectedtheoretical breakthroughs are forecasted, the ultimate goal of the dissertation is tocontribute to the legislation of collective bargaining rights by carding and constructingthe collective bargaining system theory while analyzing the abstentions andinfringements of subject of rights.The multi-dimensional explanation for the collective bargaining right is provided. To begin with, the definitions of “collective bargaining”,“collective negotiation” and“collective agreement” are discriminated from the perspective of social conflict theoryby Georg Simmel and Lewis Coser, so that the legal definition of “collectivebargaining” can be accurately defined. Moreover, the legal attributes of the collectivebargaining right are explored from the angles of human rights, worker rights and civilrights. In the end, the legal value of the collective bargaining right is discussed by wayof justice, freedom and efficiency principles.Explicit and clear definition for the subjects of rights, subjects of obligations andspecial subjects is presented with respect to the collective bargaining right. Whileclassifying the subjects of rights, the labor union is considered as the representative oflabors, its key position and embarrassing situation in the collective labor relations isindicated as a “dual representative”. While classifying the subjects of obligations, theemployer organization is enlisted to reflect the practical status that our country needsto establish collective bargaining system of both profession level and region level.While classifying the special subjects, the government is enlisted to reflect itsindispensability in playing the role of “the third party” in collective bargaining, as wellas the necessity of its positioning. This section stays as the foundation and the originfor researches of infringements and legal remedies.The system construction of collective bargaining is studied. First, the contents ofcollective bargaining currently available in our country are enriched throughreferencing the American collective bargaining system. What is missing for the systemis fulfilled, the collective salary bargaining is illustrated explicitly since it is consideredthe key issue in the construction of collective bargaining system. Second, the programof collective bargaining is carded, including preparation stage, process stage and resultstage. In the process stage, the importance of establishing representative and disclosinginformation are emphasized. In the result stage, the current status of collectivecontracts in our country is illustrated.A detailed analysis on the subjects abstentions and infringements is provided.While studying the cases of subjects abstentions, the legal culture angle of legal historyresearch is employed. The labors have a weak consciousness on their rights due to theaccumulation of legal culture and the lack of legal consciousness. They tend to waive their rights actively under the psychological phenomenon of “free riding”. The reasonsfor these phenomenons are analyzed in details. While studying the infringements ofobligations subjects, typical cases are given and analyzed where the employers failedto acknowledge the negotiation or failed to do it honestly. While studying theinfringements of special subjects, three infringement types of the government areaddressed, including the achievement-driven offside, the management-driven absence,as well as the profit-driven misplacement. Besides, the dilemma during the running ofcurrent collective bargaining system is analyzed from multiple angles and multipledimensions. Such analysis has made a preparation for the research in section six whichfocuses on the protection and remedy of collective bargaining rights.The remedy and protection of collective bargaining rights are explored. Theremedy types are classified, and the collective bargaining right is proven to be anactive right manner of self remedy. While studying the self remedy aspect, theempowerment theory of social work is introduced, the labors’ dilemma of individualempowerment is analyzed. This dissertation proposes to improve the individualempowerment by utilizing the benign intermediate forces plus the exogenic action oflabor union. In this way, the potential of labors can be stimulated and explored, thepersonal development of labors can be promoted, thus a thorough solution can befound. The role positioning of the labor union is fully studied, it is identified as therepresentative of rights subjects, it has to meet the requirement of “low coupling&high cohesion” so as to stand for the labors’ interests. While studying the protectionaspect, the fairness and justice of the society is emphasized for changing theunfavorable position of labors from the sources, the labor policy of the government hasto be fulfilled. The legislation of the right to strike is discussed, the concepts,development and problems with respect to striking are carded with the correspondingsolutions illustrated. The government needs to think out of the box and change the wayof managing the labor relationships, to move from “ethic of intentions” to “ethic ofresponsibility”, to become “law-based government”,“restricted government” and“well-organized government” with proper boundaries.Research on collective bargaining rights in this dissertation stands on top ofrelative academic theories and ideas. The content construction of collective bargaining rights is presented, typical collective labor conflict instances are concerned, theinfringement status is analyzed, and the legal remedy measures are constructed andimplemented. All in all, a relatively complete collective bargaining system is proposedin accordance with Chinese conditions, which takes the right to unity as foundationand the right to strike as protection.