企业误读了《劳动合同法》吗?——兼论劳动立法中的三方合作原则

Whether Employers Misunderstood the Labor Contract Law or Not——Remarks on Tripartism Principle in the Legislative Process of Labor Law

劳动立法应遵守三方合作原则。《劳动合同法》客观上增加了企业的用工成本,诱发了企业的一些规避行为。但企业的行为是理性的,政府应当理性对待,不应将其一概视为违法。而且,企业的规避行为不仅是出于成本原因,也是因为该法的立法过程未能有效地贯彻三方合作原则。劳动立法中,不能以社会多数意见取代三方协商,依靠惩罚性赔偿不可能建立真正和谐的劳动关系。因此,我国应尽快完善三方合作机制,改革妨碍《劳动法》实施的旧体制。

Tripartism principle must be followed in the legislative process of labor law. Labor Contract Law increases labor cost of enterprises and thus employers tend to escape from its application. However, the response of enterprises was rational, and government should treat them rationally. The resistance of employers is not because of cost only, but also because of the failure of application of tripartism principle in the legislative process of Labor.Contract Law. Tripartism principle shall not be replaced by opinions of majority. Moreover, punishment damage is not good for establishing harmony industrial relations. Our country shall improve the tripartism cooperation system and reform the old regime which has impeded full implementation of Labor Law.