集体行动的制度替代:我国集体利益争议处理机制的困境与出路

The Alternative Mechanism of Collective Action: The Dilemma and Outlet of China's Collective Interest Dispute Settlement Mechanism

集体利益争议处理机制以第三方介入争议解决替代劳资双方的自力解决,制度目的在于尽可能地避免或减少罢工带来的高昂成本。集体利益争议处理机制中最常见的是调解和仲裁制度,二者在制度功能与角色上存在着差异。调解的制度功能在于协助协商,更注重对协商过程的把握;仲裁的制度功能在于终结争议,所做出的裁决能够代替协商结果。我国集体协商争议处理机制目前面临的主要问题是制度层面集体协商争议终结机制的缺失与实践层面集体协商争议解决模式的运行之间形成了一种规范与现实的落差。美国、加拿大等国家的强制利益仲裁机制通过制度设置来替代集体行动成为促进集体协商的有效压力手段,对解决我国目前的困境具有启发意义。

The collective interest dispute settlement system is the mechanisms which replace self-settlement by labor and management with involvement of a neutral third party. The purpose of the system is to avoid or reduce the high costs of strike as far as possible. Mediation and arbitration, the most common collective interest dispute settlement mechanisms, are different in the functions and roles. The function of mediation is to promote negotiation, and mediation emphasizes the control of the negotiation process. Whereas the function of arbitration is to terminate disputes, so the arbitral award can substitute the outcome of the negotiation. The main problem currently facing the collective negotiation dispute Settlement in China is that the lack of the mechanism for the termination of collective negotiation dispute and the practice of the collective negotiation dispute settlement form a gap between legal and reality. Under this circumstance, the compulsory interest arbitration mechanism in the United States and Canada, which replaces the collective action with a legal procedure to promote the agreement of collective negotiation, may be enli^htenin~ to solve our current problems.