论用人单位规章制度的公示与告知义务

On Obligation of Employer to Publicize and Inform its Rules and Regulations

我国《劳动合同法》第4条关于规章制度"公示或者告知"义务的规定存有漏洞,依目的性限缩方法,用人单位履行公示义务不足以保障劳动者知情权的,应当履行告知等义务。违反公示与告知义务将影响规章制度的效力,这与法律法规的生效情形不同:法律法规与规章制度存在可选择性、可推知性、主动获知义务强度、负面影响程度等方面的差异,故法律法规采"一体生效主义",而可能对劳动者利益产生不利影响的规章制度宜采"各别生效主义"。此外,对于资格条件型规章制度,用人单位违反公示与告知义务的,应对劳动者承担损害赔偿的法律责任,赔偿数额可相当于劳动者重新就业的成本。

There exist some serious flaws in the article 4 of Labor Contract Law on the obligation of employer to publicize and inform its rules and regulations. In accordance with the limit and shrinkage method of objective, when employers do not fulfill their obligation to publicize the rules and regulations well, they need to supplement the informing obligation to make sure that the employees know the rules and regulations. The violation of the em- ployer＇ s informing obligation will affect the efficacy of the rules and regulations, which are different from the laws issued by the parliament and congress in four ways： optionality, predictability, the intensity of actively learning obligations, and the level of negative impact. Therefore, the law issued by the parliament and congress will work for everyone once it is published, while the employer＇ s rules and regulations should adopt individual validity doc- trine, not work for everyone when it is published. In addition, for those rules and regulations with prerequisites, if employer breaches its obligation to publicize and inform, the employer should bear the legal liability to compen- sate the damages, and the amount of indemnity could be equal to the costs which the employee spend in finding a new job.