从日本劳动立法看我国集体谈判权的保障

To View the Right on Collective Bargaining of China in the Perspective of Labor Legislation of Japan

集体谈判,对劳动关系的调节十分重要。尽管如此,很多国家并未把集体谈判权作为一项独立的权利加以保障。而且,即便确立了集体谈判制度,也并不意味着集体谈判权一定能够得到保障。我国现状即是如此。而日本劳动立法把集体谈判权的保障放在重要地位,对日本劳使关系的调节起到了不可低估的作用。检视日本劳动立法及其实践可以发现,建立行政救济制度,将拒绝谈判作为不当劳动行为加以规制;建立司法救济制度,将回应谈判、诚实开展谈判从法律上义务化,是保障集体谈判权的核心和关键所在。

Collective bargaining is very important to the adjustment of labor relations. However, the right on collective bargaining has not been protected as an independent right in many countries. And, even if the collective bargaining system has been established, it does not mean the right on collective bargaining will be protected. It is the case in China. Japanese labor legislation puts the right on collective bargaining in an important position and it has played a very important role of adjusting labor relations in Japan. To view the labor legislation and practices in Japan we can find that, the critical point of protecting the right on collective bargaining is to set up the administrative relief system so as to regulated the refusal to bargaining as unfair labor practice ; to set up the judicial relief system so as to make the respond to bargaining and honest negotiations as legal obligations.