중국 근로계약법상의 단체협약에 관한 규정

This paper aims at studying the collective agreement provisions in Chinese Labor Contract Law. China's first ever Labor Contract Law was passed on June 29, 2007 by the Standing Committee of the National People's Congress and will become effective on January 1, 2008. The legislative intention of the Labor Contract Law, which came out after a series of incidents of severe abuse of workers in China, is to better protect the lawful rights of workers and form a more stabilized employment relationship. A peculiarity of the Labor Contract Law stipulates that both labor contracts and collective agreements will be considered together. The Labor Contract Law should be read in conjunction with the Labor Law (1995), the Trade Union Law (1992, amended in 2001) and their respective subsidiary regulations, especially, Provisions on the Collective Agreement (2004 Provisions) issued by the Ministry of Labor and Social Security. There are conflicting problems concerning some regulations and their application. The enactment of the Labor Contract Law made a slight improvement in the Chinese collective agreement system as compared with the Labor Law, the Trade Union Law and the Provisions of the Collective Agreement. There are some improvements in the new Law, especially in the field of the main bodies(subjects) of the collective agreement, special field collective agreement, industrial collective agreement, regional collective agreement, the effectiveness of collective agreement and the remedy for rights disputes caused from a result of the implementation of the collective agreements etc.. There are still some problems in the collective agreement provisions in Chinese Labor Contract Law. First Even though the Labor Contract Law emphasizes the principle of equal negotiation in collective bargaining, it is very difficult to achieve it. Second Because the Labor Representative Conference in China is organized by both management and labor, it shall not be a party to or shall not be concerned in the collective negotiations on behalf of labor. Third In the 2004 Provisions as well as the Labor Contract Law, there is no remedy if an employing unit refuses to start collective negotiations. Fourth There are a lack of measures available such as the strike system to secure collective negotiations in China. Fifth The Trade Union Law will have to be revised in order to remove the conflict that exists between the Trade Union Law and the Labor Contract Law in the field of dispute settlements relating to the implementation of the collective agreement. Sixth The Collective Agreement system is an important legal method in adjusting labor relationships. However, the Provisions of the Collective Agreement are enacted as a type of Provisions(Guizhang) which is at a lower level of legislation, therefore it cannot rule the collective agreement system effectively. Seventh In order to correct the problems due to the conflict among the Labor Contract Law, the Labor Law, the Trade Union Law, the Provisions on Collective Agreement and their application, these Labor Laws should be revised. Eighth Because China entered into WTO, it should comply with the basic intention of WTO and the rule of trade, gradually accepting the right of Collective Bargaining as requested by international labor treaties. These problems remain as the tasks which China will have to resolve in the near future.