摘要
The legislative evolution of labour rules and regulations in China presents a track of development from individual autonomy to collective autonomy. Although article 4 of the Labour Contract Law of the People＇s Republic of China defines the rules and regulations as the system of regulating the working conditions from the perspective of individual autonomy at present, the ＂determination based on the consultation on equal terms ＂ reflects a possibility of the development toward a regulatory mechanism from the perspective of collective autonomy. Such ＂ambiguous ＂ legislation has triggered a number of debates on legal issues related to the ＂unilateral determination by the management＂ or ＂co-determination by the management and the labour＂. Therefore, based on the strict distinctions between the two regulatory mechanisms of the working conditions, which are the individual autonomy and collective autonomy, the legislature in China should incorporate labour rules and regulations into the legislative framework of collective labour relationship which should focus on the formulation procedure, regulatory content and legal effect. It shall conduct an institutional design on the rules and regulations meticulously, which could connect and coordinate with the collective labour contract law system, so as to develop a sound ＂dual-track＂ collective labour law system in China.
我国劳动规章制度的立法沿革呈现了由个体自治向集体自治发展的轨迹。《劳动合同法》第4条虽将规章制度定位为个体自治层面调整劳动条件的制度,但"平等协商确定"又体现出规章制度向集体自治层面调整机制发展的可能。此"模棱两可"的立法引发了与"资方单决"或"劳资共决"相关的诸多法律问题之争。为此,我国立法者应在严格区分个体自治和集体自治这两种劳动条件调整机制的基础上,将劳动规章制度纳入集体劳动关系的立法框架中,围绕制定程序、调整内容和法律效力,对规章制度进行严格缜密的制度设计,与集体合同制度衔接配合,形成完善的"双轨制"集体劳动法律体系。
基金
the Shanghai Philosophy and Social Science Planning Youth Project Study on the Content Review of Labour Rules and Regulations(Project No.2016EFX002)
Young and Middle-aged Talent’s Research Project of the Ministry of Justice on National Rule of Law and Legal Theory Research on Judicial Review of Disputed Clauses in the Labour Rules and Regulations(Project No.15SFB3029)
