Trade Union's Legal Function On Protecting Members' Rights In China

Trade union is an organization at workplace via which employees seek to improve their working as well as living conditions in market economy. The second article of the Trade Union Law of PRC revised on the 24th meeting of the standing committee of the Ninth National Congress of People's Representatives on 27th Oct. 2001 stipulates that "trade union is a mass organization organized voluntarily by the working class. All China Federation of Trade Union and other trade unions represent the interests of the working class and protect them according to law." The sixth article stipulates that "the protection of the legal interests of the working class is the fundamental task of trade unions." This stipulation not only make clear the fact that the protection of the interests of the working class is the fundamental task of trade unions, but also specifies the legal position of trade unions as the representative of the interests of the working class. But law will not realize itself automatically, at present, there are still some barriers in the process of the protection of the interests of the working class by trade unions, and they need to be resolved by long-term efforts. Efforts have been made towards this end with as the starting point the legal position of trade unions and the approaches of the realization of the above-mentioned functions of trade unions. Problems and deficiencies of the different mechanisms in the protection of interests of working class by trade unions have been elaborated from the perspectives of law as well as reality. With this as a basis, suggestions have been given concerning the institutional construction of collective contacts on equal and deliberative terms. Systems of democratic management of employees should be strengthened and mechanism of resolution of labor conflicts perfected, hence effective protection of the legal rights of workers. The structure of this paper is as follows:Chapter one focuses on the discussion of the nature and legal position of trade unions in China with attention directed mainly toward the latter. Trade Union Law grant trade unions with the position of legal person. If we look at the trade unions of industrialized market economies, they are private legal persons. While on the other hand, there is no denying the fact that they also have some tinge of public legal persons to a certain degree. Although trade unions should be private legal persons with characteristics of public legal persons in China and are stipulated in Trade Union Law and Labor Law accordingly, in actual practice, trade unions are developing towards the opposite direction, that is, public legal persons with characteristics of private legal persons. The legal position of trade unions is a key to the understanding of trade unions in China, a media to know them and a premise and condition for the advancement of their function in the protection of the interests of the working class.Chapter two dwells on the function of the protection of interests of the working class of trade unions from three perspectives, with as a focus the discussion of the practical approaches. Trade unions can perform social functions like the increase of salaries and the improvement of welfare of the working class, the development of industrial democracy, the promotion of production efficiency and the maintenance of social justice. These functions will be realized via political participation and consultation, collective deliberation, the signing of collective contracts, democratic organization of employees, three-party deliberation and the resolution of labor conflicts.First, the political participation and consultation of trade unions include the participation of trade union representatives in the National People's Congress. Trade unions have their own representatives in different levels of People's Congress. This is a stage on which trade unions participate in legislation, influence government policy and protect interests of the working class in a legislative way. The system of affiliated meetings refer to the co-sponsored meetings by trade unions and governments of different levels. They discussed problems of common concern and exact resolutions to these problems. Most of these problems can be solved effectively by these meetings. This not only protects the rightful interests of the workers, promotes the performing ability of trade unions, broaden the working space of trade unions, enhance and improve the position and profile of trade unions, but plays a vital role in the democratic and scientific governing of governments.Second, the Trade Union Law specifies collective deliberation and collective contract as the major means for the protection of the interests of the working class. Meanwhile, is also stipulates the rights of trade unions to perform collective deliberation and sign collective contracts. While in fact, trade union often unite into one the function of the protection of interests of the working class and that of management, with the latter bigger than the former. As the basic law of trade unions, the Trade Union Law also emphasizes the legal position of trade unions as public legal persons, while somewhat neglecting the source rights of the rights of trade unions, that is, the definition and protection of the rights of trade union members. This leads to the absence of the legal position of private legal person. This absence further leads to the confusion of the role of Meeting of Representative as a key organization of democratic management of workers and that as the trade union of companies. It also results in the weakening of the bargaining power of trade unions in collective deliberation. There are some defects for collective contracts in terms of legislation. The features of the organizational system of trade unions determine the fact that collective deliberation and collective contract can only be performed within the range of relevant companies.Third, companies carry out democratic management of workers with as its basic form the meeting of representatives of workers, with a view to the maintenance of democratic decision-making, democratic management and democratic supervision. Trade unions are the organizers and supervisors of democratic management, and as standing institutions of the meeting of representatives of workers, it enhances the function of the meeting of representatives of workers as the basic form of democratic management, and increase the atmosphere of democratic management. The fundamental problems in the system of the democratic management of workers lie in the administrative tendency and the insufficiency of representation. If trade unions do not do away with these two problems, it will be hard for them to receive the trust of workers, and the participation of workers will not be successful without a strong leadership. Moreover, there is a certain contradiction between the leadership of government and the independent development of democratic management. Principles like "the absolute leadership of the Party", "the Party take care of affairs concerning leaders" result in the leadership of the Party over trade unions. Consequently, the Party can in fact take control of the meeting of representatives of workers via its leadership over trade unions, interfere into the field of production and management, and exert its administrative influence.Fourth, trade unions, governments and employers form three parties, and they participate together, influence and promote each other and can mutually counterbalance themselves. The fundamental problem of this three-party system lies in that government exceeds its power, organizations of employers are absent, while trade unions are weak and distorted. This will long bother the three-party system and it will to a certain extent weaken the effect of it.Fifth, the system of the resolution of labor conflicts is an indispensable way for the resolution of conflicts between labor and capital and at the same time, it is also one of the effective mechanisms for the protection of workers'interests. Via participation of resolution of labor conflicts, presiding over the intercession of labor disputes, taking part in arbitration of labor conflicts, trade unions can help resolve all these conflicts in time. While on the other hand, there are still many problems yet to be solved and they include:the preposing of arbitration leads to the over-length of procedure and too high cost; there lacks necessary supervision over labor arbitration, which tends to lead to administrative interference; the redressing power of laborers are relatively weak and the supervision over labor cannot form effective executive limitation upon employers.Chapter three is about the legal thinking over the function of trade unions for the protection of workers'rights. The construction of collective contract via collective deliberation should be strengthened, including the clarification of the nature of trade unions as private legal persons. Regional and professional system of contract should also be improved. Under the help of the three-party system, the system of collective contract should be furthered. The system of the democratic management of workers should be promoted, including the perfection of legislation, the carrying out of direction election of president of grassroots trade unions. Government should consciously take good care of the dignity of law and grant workers with "bottom line" rights, the right for strike. And last but not least, the system of the resolution of labor conflicts should be perfected, so should the system for the protection of the rights of individual workers. The mechanism of lawsuits represented by trade unions should be furthered, together with the system of supervision over work.