Research On Protection Of Employees In Business Transfer

Business transfer,as a widespread trading activity,plays an significantly important role in the field of modern market economy.Through the acquisition or transfer of operating assets,enterprises can reduce operating costs and enhance market advantages in order to seek better development.Business transfer is way for profits.In a transferring contract,both parties of the transaction will treat transferred property as an organism with no legal personality not affecting the enterprises' independence.Business transfer,together with the merger and separation of enterprises,constitutes three important types of organizing methodology of corporate governance.As one of the stakeholders of enterprises,employees will be greatly affected in this transaction.A vital impact strikes on their occupational stability,directly related to their survival.Via analysis of general provisions of the existing legislation and case,it is found that the problem of labor relations in business transfer involves the state of labor autonomy,the employer has the power to determine whether to protect employees' career,and the employees are in a very passive position.It is manifested in four aspects: lack of employees' right to choose "leave or stay",mandatory buyout of employees' working life,improper dismissal and adverse changes of employees' career,and obstacles in realizing labor creditor's rights.The analyses also indicate that the relevant provisions of the existing legislation are too abstract and general,for example the issue of whether the labor relationship in business transfer should be inherited in accordance with Article 34 of the Labor Contract Law or whether employers could apply non-fault dismissal in this scenario.In addition,the inadequate operability of provisions leads to the uncertainty of judicial awards,the court might be unpersuasive in argumentation,thus the interests of employers and employees cannot be effectively balanced.The employer is in advantageous position in the labor relations.Whether it is necessary to carry on the inheritance and protection of the labor contract in business transfer,the article demonstrates the following three points:Firstly,from the perspective of the change of the main parties of the labor contract,the paper proves the feasibility of the transfer and inheritance of the labor relationship in business transfer,accompanied by the theory that the labor relationship is the combination of means of production and labor force.Secondly,based on the concept of corporate social responsibility,business transfer should pay attention to the protection of the rights and interests of workers as stakeholders.Thirdly,as it is indicated in the orientation of labor law,the inclined protection should be implemented in business transfer.It emphasizes on maintenance of occupational stability of labors,in order to realize the dynamic balance of labor relations.To further tilt the protection of workers in business transfer,the article focuses on three extraterritorial protection modes.According to extraterritorial experience and Chinese practice,it is concluded that the mode of general inheritance of labor contract should be adopted in business transfer.In the last part of the paper,it researches on the formulation of relevant supporting measures to ensure the flexibility and operability of the rules under the generalized succession model,that is,to justifiably allocate the rights and obligations to employees and employers in the process of business transfer: beforehand,in the process and afterwards.Consequently,it is essential to set codes to strengthen labors' right to know and to negotiate,accompanied by the right of dissenting,to prohibit improper dismissal or unfavorable alteration and claims on the joint liability of enterprises to labor debts.