On The Right To Organize

The constitution of the harmonious labor relations attaches great importance to both the individual labor relations and the collective labor relations.Not only in the theoretical researches but also in the practice of systems,there existing the ignorance of the collective labor relations for a long time.With the deepening of the socialist market economic system reform,the harmony of the labor relations need more and more effect of the collective labor law.As the core of the collective labor rights,the right to organize should be the key point of the collective labor law system.This research chosen the right to organize as the object,analyze the norm of system design of the right by discussing the origin and the legitimacy of it,try to find some useful advice for the constitution of the system of the right to organize in China.Besides the introduction and the conclusion,this dissertation includes four chapters.Chapter one is the basic theory of the right to organize.This chapter explained some concepts of the right to organize in academia at first,gave a clear concept of the right to organize by comparing the right to organize with the freedom of association,observing the right to organize in the collective labor rights system,analyzing the relations among the right to organize,the collective bargaining right,the right to strike and the democratic participation right.The right to organize is the laborers'right to organize unions and take part in union activities.In terms of the nature of the right to organize,the fundamental rights of citizen developed from liberal rights to social rights.On the form side,the right to organize is a kind of liberal rights,but on the purpose side,the right to organize is a kind of social rights,because the performance of the right to organize depends on the laborers' own free will,but the purpose of the right to organize is to protect the survival and development of the laborers as the socially disadvantaged group.This chapter debated the value of the right to organize in the end,substantive equality principle,the differential treatment principle and the weak protection principle are the most important value foundations of it,and the efficiency analysis of the right to organize can response to the query that the right will undermine the social economic efficiency.Not only the social value,but the right to organize also has some individual values to the laborers,which include the satisfactions of individual demands and the cultivation of individual virtues.Chapter two is the structure of the right to organize.The subject of this right is only the labors,and the concepts of the labor are different in the individual labor relations and the collective labor relations.They differed in the judgement standards mainly.In the individual labor relations,the judgement standard of the laborer is the dependency theory or the control theory,but in the collective labor relations,the standard should beyond the scope of the dependency theory or the control theory.In this way,more laborers can be absorbed in the scope of the subject of the right to organize.It's necessary to make some restrictions for the concept of the laborer in the right to organize,which are the occupation,the position and the nationality of the labor.From the perspective of the gender theory,there were some gender problems existing in the history of the system practice of the right to organize,such as the gender exclusion and the male dominance.As a result,the contemporary legislations of the right to organize usually stipulate both the formal equality in gender and the special protections for female.The realization carrier of the right to organize is the trade union.The emergence and development of the trade unions were following the laborers'demand to protect their own legitimate rights.The trade unions need some constitutive requirements,which include purity,independence,for the purpose of the improcement of the working conditions,persistence and the ability to achieve purposes.The functions of the trade unions include economic constraint,work constraint,social reform,membership service,self-realization and force concentration.By different standards,the trade unions can be divided into different types,such as the free trade unions and the official unions,the occupational unions,the industrial unions and the enterprise unions,the unified unions and diversified unions,the in-system unions and the outside-system unions.The types of trade unions in Chinese union system mainly include the grass-roots trade unions and their unions,national and local industrial unions,local federation of trade unions and ACFTU(All China Federation of Trade Unions).Then,this chapter dissected the content of the right to organize,which includes the freedom to form a union,the equality to join a union,the freedom to join a union and member right in a union.Chapter three is the legal remedies of the right to organize:the legislations on the unfair labor practices.The legislations on the unfair labor practices are the legal remedy of the right to organize,and the two most popular legal systems of the unfair labor practices are in America and Japan.In the meantime,some legislations on the unfair labor practices are found in the legislative documents of the International Labour Organization.According to the background of creation of the legislations on the unfair labor practices in America,the legislative value of it lies in promoting free trade,maintaining the equalization and balance of the industrial relations.In theory,the types of the practices include both the employers'unfair labor practices and the trade unions'unfair labor practices,but in the legislations of some countries,the types of the practices just include the employers'unfair labor practices.Comparing the remedy procedure of unfair labor practices in America with the remedy procedure in Japan,it's discovered that their remedy procedures are both including administrative remedies and judicial remedies.However,the difference mainly exists in the range of the claimants,the initiation of the remedy procedure,the leading institutionsog the remedy and the operation of the remedy procedure.Chapter four is the investigation and improvement of the system of the right to organize in China.The investigation includes the system design and the system operation.The main problems were found and analyzed by investigate the legislations of the right to organize,the establishment situation of the trade unions and the juridical practices about the right to organize.The improvement of the system of the right to organize should carry out in the following thoughts:strengthening the trade unions'function to protect laborers'rights,maintaining the trade unions' purity and independence,paying equal attention to the substantive rules and the procedure rules.Finally,based on the specific practices,this paper brought up some specific system designs,which included the permission of the laborers'stike,the crystallization of the subject of the right to organize,the improvement of the systemof membership dues,the improvement of the system of representative action of the trade union and the improvement of the legislations on the unfair labor practices.