The Legislation of Collective Contracts in China: Predicaments, Reasons and the Way Out

AuthorSu Huaye
Pages66-93
SU (DO NOT DELETE) 2014-1-29 12:37 PM
66 TSINGHUA CHINA LAW REVIEW [Vol. 6:65
THE LEGISLATION OF COLLECTIVE CONTRACTS IN
CHINA: PREDICAMENTS, REASONS AND THE WAY OUT
SU Huaye
The rights of employees can be understood in terms of statutory
standards, corporate rules, collective contracts, and labor contracts.
In recent years, the labor contract system in China has made
remarkable progress, especially after the Labor Contract Law came
into force in 2008. This law has been put into practice rapidly since
then. Heated public debates on the labor contract system and
abundant cases revolving around it have made this law useful to the
Chinese legal system and increasingly important in defending
employee rights. At the moment, Chinese labor law is mostly
focused on individual labor relationships coordinated by labor
contracts.
Compared with the attention paid to the development of the labor
contract system, the collective contract system still lacks a
meaningful presence in Chinese labor law legislation. However,
frequent collective labor disputes, or so-called labor emergencies,1
call for the law to change its attitude towards collective contracts. A
collective labor system is urgently needed to satisfy the requirements
of social justice. In support of this goal, this article discusses labor
contract and collective contract theories, discerns between these two
systems, and advocates for the independent legislation of a collective
contract system conducive to Chinas national conditions. This
article also examines legislation in other legal systems on collective
contracts and identifies key elements that should be incorporated into
the collective contract system of China.
I. PAST ATTEMPTS TO LEGISLATE A COLLECTIVE AGREEMENT ACT IN
THE REPUBLIC OF CHINA
There are two major approaches to legislating a collective
contract system. One is to draft a general labor law code that
exhaustively covers the specific needs of a collective contract
system. The Labor Code of France (Le Code du Travail) is a popular
example. The other approach is to introduce the basic contents via
1 In theory, a lawful strike carried out by workers should meet several requirements, a qualified
subject being one of them. In other words, a strike is legal only when it is organized by a labor union. In
China, without the endorsement of a union, work stoppage by laborers does not meet the legal
requirements to be considered a strike. Hence, such striking is understood as “unofficial strikes” or
“labor-emergencies” in China.
SU (DO NOT DELETE) 2014-1-29 12:37 PM
2013] COLLECTIVE CONTRACT IN CHINA 67
independent legislation, such as the Collective Agreement Law of
Germany.
The Collective Agreement Act of the Republic of China was the
first concrete attempt at independent legislation of the collective
agreement system in Chinese legislation history. Although much
time has since passed and both the social and economic
circumstances have changed, the system created then still has much
to teach us today.
The Collective Agreement Act, which came into effect in 1932,
consisted of 31 articles, including general provisions and restrictions,
as well as enforcement, duration and supplementary provisions. The
first article stated that a collective agreement is a written contract
signed by employer groups and employee groups, both with the
status of a legal entity, for the sake of establishing labor
relationships.2 That the two parties concerned must be individuals or
groups with the status of a legal entity distinguished this law from a
normal labor contract law. The contracting parties of the employee
groups were workers who were supposed to contract with their
employers individually. Any negotiation was limited because the
content of a collective contract was defined within the scope of
regulating a bilateral labor relationship. By prescribing this limit,
interference induced by strikes in support of other striking workers
(and not resulting from direct grievances against an employer) and
other issues irrelevant to the labor relationship could be avoided.
Only a collective contract in written form was accepted.
In the articles covering enforcement, Articles 16 to 18, the
Collective Agreement Act provided for the connection between the
enforcement of collective agreements and labor contracts. In light of
these regulations, the stipulated labor constituted the content of the
labor contract. Parts of the labor contract that contradicted the
collective agreement were invalid and had to be replaced by the
relevant provisions of the collective contract. During the interval
between the old and new collective contracts, the replaced contract
would function as the content of the labor contract if there was a
conflict. Rights, once endowed by a collective agreement, had to be
preserved, and employees who claimed these rights could not be
fired because of this requirement.
Confined by circumstances, the Collective Agreement Act was
never put to full use since its adoption in 1932. Nonetheless, if we
look back on the law from a modern perspective, there are still
elements of it that were ahead of its time. Among these advances, the
2 Shi Shangkuan (史尚宽), Laodong Fa Yuanlun (劳动法原论) [The Theory of Labor Law] 100
(1934).

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