Research On The Effective Range Of China's Industrial Collective Agreements

In recent years,the number of collective agreements in China has shown a blowout growth,and the coverage of collective agreements has been further expanded.Among them,Wuhan,Shenyang,Hainan and other places continue to break out the restrictions of the existing “Labor agreement Law” on “areas below county level”,and creatively carry out industry collective consultation in sub-provincial cities and even the whole province creating a new situation of collective consultation.This not only benefits from the natural and irreplaceable advantages of the industry collective agreement in improving the coverage of collective bargaining,but also benefits from regulation of the general binding on collective agreement by Article 54 of the Labour agreement Law.The collective agreement of the industry is binding on the employing units and workers of the whole industry,regardless of whether the employer belongs to the member of the employer organization or not,and whether the worker belongs to union members or not.However,it presents a chaotic situation in the process of releasing Article 54 of the Labour agreement Law,which is not only reflected in the inconsistency of the promise on the scope of agreement validity between different industry collective agreements,but also is reflected in the inconsistency of the scope of collective agreements in different periods of the same industry.There are only two reasons for this chaos: one is that the theory of collective agreement in China comes from Differenzierungstheorie in Germany,which divides collective agreements into schuldrechtliche Wirkung and normative Wirkung.But in the process of internalization,because the stipulation is too rough,the normative wirkung has carried on the excessive expansion.In the absence of the tarifautonomie soil,it is impossible to present the complete theoretical logic and the original system requirements.The second is that the legislation of collective agreement from the central to the local is more chaotic in our country,whether the collective agreement of the industry is binding on the employing units and workers of the whole industry is different and inconsistent,which directly leads to the chaos of local practice.In this regard,it is generally stipulated in foreign countries that collective agreements are legally binding not only on the parties(trade unions / employer organizations)to the agreement,but also on the parties(trade members and members of employer organizations)to the agreement.This is the proper meaning of the union theory(Verbandstheorie in German),and it is also the basic rule to determine the scope of the effectiveness of the general national collective agreement.At the same time,in order to expand the coverage of collective agreement or to meet the needs of the public interest,the scope of validity of collective agreement may be extended and expanded.A large number of non-workers and members of non-employer organizations who are originally outside the scope of collective agreement are placed under the radiation of collective agreement effectiveness,and collective agreements that are extended in whole or in part in accordance with certain criteria are exempted through exemption mechanisms for small and medium-sized employers.By tracing back to the source of the theory of collective agreement effectiveness,this paper examines the portability of the applicable rules and the exemption system of small and medium-sized employers in China,and puts forward the basic ideas for perfecting the scope of effectiveness of collective agreements in China.In the scope of application to people,this paper makes differentiated institutional arrangements for collective agreements of different industries.In principle,the effectiveness of an industry collective agreement is only limited to the negotiating parties and their members.However in a highly homogeneous industry,when the industry collective agreement meets the existing coverage requirements or the needs of the public interest,it can be extended to the employing units and workers of the whole industry,and the extended application can be balanced through the exemption system in order to unify the working conditions of the industry.In terms of time effectiveness,when the provisions of the collective agreement are amended or formulated,the provisions of the residual effect should be added to solve the problem of the protection of the time and space between the new and the old collective agreements.In terms of spatial effectiveness,it establishes the applicable rules for the overlap of the spatial validity scope of the industry collective agreement.Since then,the three dimensions of the validity scope of the industry collective agreement have been basically determined.