集体合同效力的生成与实现——以营造“和谐劳动”为目标

Generation and Achievement of the Effectiveness of the Collective Contract: Aiming at Creating “Harmonious Labor”

集体合同能否发挥实现劳资团体自治和营造和谐劳动的制度功能,取决于其效力的生成与实现状况。我国劳动立法秉持集体合同效力肯定观,为集体合同的效力生成与实现提供了法律保障,立法态度和精神值得肯定。但现行立法并未对集体合同效力具否之判定、效力射程之厘定、效力可诉性之有无等问题作出系统、明确的规定,需要在立法论和解释论层面上予以弥补。集体合同效力的实现及其治理功能的发挥,深受工会体制和团体机制的制约,也需要探寻改革和破解之道。

The extent to which the effectiveness of the collective contract has been generated and achieved determines whether the contract is able to play the institutional functions of achieving autonomous governance for labor and capital organizations and creating a harmonious relationship between the labor and the capital. The positive view on our labor legislation on the effectiveness of the collective contract provides a legal guarantee for its generation and achievement. This type of legislative attitude and spirit is worthy of approval. However,the current legislation fails to systematically specify for the effectiveness of the collective contract such issues as the determination of its existence,the definition of its range,and its justifiability. This inadequacy should be overcome at the levels of legislative theory and interpretative theory. The achievement of the effectiveness of the collective contract and the development of its management functions,deeply restricted by the trade union system and the organization mechanism,need to find a way out of the difficulties through reform and innovation.