Research On The Legislation Of Employers' Unfair Labor Practices

Since the state-owned enterprise reform,the imbalance between labor and capital has become increasingly obvious in the labor market.In order to effectively protect employees' interests and balance labor relations,laws and regulations,such as “The Labor Law,”“The Labor Contract Law,”“The Labor Dispute Mediation and Arbitration Law,” “The Trade Union Law” and “The Collective Contract Regulations”have been gradually enacted.The current plight of insufficient protection for employees has not yet been effectively eased.The fundamental reason is that the above-mentioned legislations only seek solutions from the government-individual perspective,ignoring the complexity of labor relations,the importance of“Three Labor Rights,” and the way to increase the collective strength of employees so as to solve labor disputes.One of the most concentrating representations is that there are no legislations aiming at collective labor relations,including failing to put the concept and content of “Three Labor Rights” into labor laws,and lacking specific provisions on regulating the employer's unfair labor practice,which leads to the failure of putting“Three Labor Rights”on the ground,and has greatly limited the functions of traditional measures.The legislation on employer's unfair labor practice is conducive to restrain employers from encroaching on “Three Labor Rights,” promote the balance of labor relations,protect the interests of employees,and ultimately help establish a standardized labor relations.The“employer” in employer's unfair labor practice needs extensive interpretation.In addition,we should make it clear that the employer's unfair labor practice is a kind of special tort involving collective labor relations,which is different from the general civil torts,so the legislation on unfair labor practice is irreplaceable.Moreover,the legislation on the employer's unfair labor practice has the legal nature of social law.It is the state's public power that intervene in labor relations to reverse the imbalanced labor relations through a second legislation based on the autonomy between employers and employees,which is free from the limitations of traditional remedies.Finally,in determining the employer's unfair labor practice,certain standards should be followed,including the subjective and objective requirements and the general principle of the distribution of burden of proof.There are many problems regarding the scope of “employer”and the provisions on the refusal of collective bargaining,interference with labor unions and other employer's unfair labor practices,including the narrow scope of employer's unfair labor practice,vague standards for determining employer's unfair labor practices,limited employers' legal liability for unfair labor practices and a shortage of the mechanism for regulating unfair labor practices conducted by employers.Carefully comparing and learning from legislations and practical experiences in two mature market economy countries,the United States and Japan,and China's Taiwan region in regulating employer's unfair labor practices,which includes the scope of employer's unfair labor practices,the judgment standards for unfair labor practices,legal liability for employer's unfair labor practices,and the mechanism for dealing with employer's unfair labor practices,etc.,can provide legislative guidance for employer's unfair labor practices in China.In consideration of the existing problems in the legislation on employer's unfair labor practice in our country,the legislative proposals ought to aim at solving these problems from the following perspectives,including the main scope of the employer's unfair labor practices,the judgement standard for determining employer's unfair labor practices,the employer's legal responsibility for unfair labor practices,the establishment of mechanisms for dealing with employer's unfair labor practices and other supplementary measures.