Viewpoint | (I) about the workers' congress
Published:
2023-03-06
Workers' congresses and workers' congresses may be relatively unfamiliar in some enterprises, especially in small and medium-sized enterprises, where almost all decisions of enterprises fall within the scope of the authority of the management. therefore, many enterprises think that it is not necessary to establish workers' congresses and workers' congresses, or they can only play a temporary role when needed. And this is actually a misunderstanding of the workers' congress system. This series will explain the legal issues related to the workers' Congress one by one by way of questions and answers. You are also welcome to inform us of the issues you want to know about the workers' Congress by leaving a message. We will select some hot issues to be included in this series to let more people know about the workers' Congress. 1 What enterprises must establish the system of workers' congress? The workers' congress is a form of democratic management in enterprises. At the legal level, only Article 18 of the Company Law stipulates that "the company implements democratic management through the workers' congress or other forms in accordance with the provisions of the Constitution and relevant laws" involves the workers' congress, while Article 2 of the Regulations on the Workers' Congress of Industrial Enterprises Owned by the Whole People stipulates that enterprises owned by the whole people must establish the system of workers' congress, others, such as the "Regulations on the School Staff Congress", "Measures for the Implementation of the Railway Enterprise Staff (Representative) Congress", "Regulations on the Staff Congress of Enterprises and Institutions in the Water Conservancy System", "Regulations on the National Financial System Staff Congress", etc., stipulate that schools, railways, Enterprises and institutions in water conservancy, finance and other industries should establish a staff congress system. Many provinces have also stipulated by local laws and regulations that enterprises should establish workers' congresses. Specific to Shandong, Articles 2 and 3 of the "Regulations on the Workers' Congress of Shandong Enterprises" clearly stipulate that enterprises in the administrative region of Shandong Province should establish and improve the system of workers' congresses or workers' congresses. 2 What are the legal consequences of not establishing a system of workers' congresses? Article 54 of the the People's Republic of China Trade Union Law stipulates that "in violation of the provisions of this Law, any of the following circumstances shall be ordered by the people's government at or above the county level to make corrections and be dealt with in accordance with the law: (1) those that hinder the trade union from organizing workers to exercise their democratic rights in accordance with the law through workers' congresses and other forms; ......" Article 27 of the Shandong Enterprise Workers' Congress Regulations stipulates that "an enterprise and its staff violate the provisions in one of the following circumstances, the trade union or the relevant parties have the right to request the people's government at or above the county level and the relevant departments to deal with it according to law: ...... (II) refuses to establish the system of workers' congress; ......" It can be seen from the above provisions that those who fail to establish the system of workers' congress should be dealt with according to law, but what kind of treatment has not been clearly defined by specific laws and regulations, and the existing provisions are too general and lack of operability. At the level of this issue, Shanghai has set an example for us. Article 46 of the "Regulations of Shanghai Municipality on Workers' Congress" clearly stipulates that "the municipal and district federations of trade unions shall incorporate the implementation of the workers' congress system in enterprises and institutions into the supervision and inspection of labor laws and regulations of trade unions. For enterprises and institutions that violate the provisions of these regulations, they may issue labor law supervision and rectification opinions of the trade union, requiring enterprises and institutions to make corrections within 90 days. If an enterprise or institution fails to make corrections within the time limit, the municipal and district federations of trade unions may, as needed, submit a proposal for labor law supervision and handling of the trade union to the state-owned assets, education, science and technology, culture, health and other administrative departments at the same level and the administrative departments of human resources and social security. For enterprises and institutions that violate the provisions of these regulations and cause group labor disputes, as well as enterprises and institutions that have issued labor law supervision and handling proposals by trade unions, state-owned assets, education, science and technology, culture, health and other administrative departments, and human resources and social security The department shall investigate and deal with it in accordance with the law, and urge enterprises and institutions to make corrections within 30 days. If an enterprise or institution fails to make corrections within the time limit, the Municipal Federation of Trade Unions shall incorporate the information into the municipal public credit information service platform in accordance with the relevant regulations of the city's social credit management. For violations of labor security laws and regulations, the human resources and social security administrative department shall make administrative treatment in accordance with the law." The author believes that this should also be the future legislative direction of Shandong Province. 3 Whether the formulation of enterprise rules and regulations must go through Adoption by the Workers' Congress? Article 18 of the "Company Law" "When a company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations, it shall listen to the opinions of the company's trade union, and listen to the opinions and suggestions of employees through the employee representative assembly or other forms." It only stipulates that the opinions of employees should be heard through the form of employee representative assembly. As for the rules and regulations involving the vital interests of workers, although Articles 20, 21, and 22 of the "Regulations on the Workers' Congress of Shandong Province" stipulate that the enterprise workers' congress shall review various systems and plans of the enterprise, however, according to the second paragraph of Article 4 of the Labor Contract Law of the upper law, "When the employer formulates, modifies or decides on labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, employee training, labor discipline, and labor quota management, etc. When rules and regulations or major matters directly related to the vital interests of workers, they shall be discussed by the workers' congress or all employees, and plans and opinions shall be put forward, it shall be determined through equal consultation with the trade union or employee representatives." Therefore, the formulation of rules and regulations requires enterprises to go through democratic procedures, which can be discussed with all employees and then determined through equal consultation with trade unions or employee representatives.
Workers' congresses and workers' congresses may be relatively unfamiliar in some enterprises, especially in small and medium-sized enterprises, where almost all decisions of enterprises fall within the scope of the authority of the management. therefore, many enterprises think that it is not necessary to establish workers' congresses and workers' congresses, or they can only play a temporary role when needed. And this is actually a misunderstanding of the workers' congress system. This series will explain the legal issues related to the workers' Congress one by one by way of questions and answers. You are also welcome to inform us of the issues you want to know about the workers' Congress by leaving a message. We will select some hot issues to be included in this series to let more people know about the workers' Congress.
1
What enterprises must establish the system of workers' congress?
The workers' congress is a form of democratic management in enterprises. At the legal level, only Article 18 of the Company Law stipulates that "the company implements democratic management through the workers' congress or other forms in accordance with the provisions of the Constitution and relevant laws" involves the workers' congress, while Article 2 of the Regulations on the Workers' Congress of Industrial Enterprises Owned by the Whole People stipulates that enterprises owned by the whole people must establish the system of workers' congress, others, such as the "Regulations on the School Staff Congress", "Measures for the Implementation of the Railway Enterprise Staff (Representative) Congress", "Regulations on the Staff Congress of Enterprises and Institutions in the Water Conservancy System", "Regulations on the National Financial System Staff Congress", etc., stipulate that schools, railways, Enterprises and institutions in water conservancy, finance and other industries should establish a staff congress system. Many provinces have also stipulated by local laws and regulations that enterprises should establish workers' congresses. Specific to Shandong, Articles 2 and 3 of the "Regulations on the Workers' Congress of Shandong Enterprises" clearly stipulate that enterprises in the administrative region of Shandong Province should establish and improve the system of workers' congresses or workers' congresses.
2
What are the legal consequences of not establishing a system of workers' congresses?
Article 54 of the the People's Republic of China Trade Union Law stipulates that "in violation of the provisions of this Law, any of the following circumstances shall be ordered by the people's government at or above the county level to make corrections and be dealt with in accordance with the law: (1) those that hinder the trade union from organizing workers to exercise their democratic rights in accordance with the law through workers' congresses and other forms; ......" Article 27 of the Shandong Enterprise Workers' Congress Regulations stipulates that "an enterprise and its staff violate the provisions in one of the following circumstances, the trade union or the relevant parties have the right to request the people's government at or above the county level and the relevant departments to deal with it according to law: ...... (II) refuses to establish the system of workers' congress; ......" It can be seen from the above provisions that those who fail to establish the system of workers' congress should be dealt with according to law, but what kind of treatment has not been clearly defined by specific laws and regulations, and the existing provisions are too general and lack of operability.
At the level of this issue, Shanghai has set an example for us. Article 46 of the "Regulations of Shanghai Municipality on Workers' Congress" clearly stipulates that "the municipal and district federations of trade unions shall incorporate the implementation of the workers' congress system in enterprises and institutions into the supervision and inspection of labor laws and regulations of trade unions. For enterprises and institutions that violate the provisions of these regulations, they may issue labor law supervision and rectification opinions of the trade union, requiring enterprises and institutions to make corrections within 90 days. If an enterprise or institution fails to make corrections within the time limit, the municipal and district federations of trade unions may, as needed, submit a proposal for labor law supervision and handling of the trade union to the state-owned assets, education, science and technology, culture, health and other administrative departments at the same level and the administrative departments of human resources and social security. For enterprises and institutions that violate the provisions of these regulations and cause group labor disputes, as well as enterprises and institutions that have issued labor law supervision and handling proposals by trade unions, state-owned assets, education, science and technology, culture, health and other administrative departments, and human resources and social security The department shall investigate and deal with it in accordance with the law, and urge enterprises and institutions to make corrections within 30 days. If an enterprise or institution fails to make corrections within the time limit, the Municipal Federation of Trade Unions shall incorporate the information into the municipal public credit information service platform in accordance with the relevant regulations of the city's social credit management. For violations of labor security laws and regulations, the human resources and social security administrative department shall make administrative treatment in accordance with the law." The author believes that this should also be the future legislative direction of Shandong Province.
3
Whether the formulation of enterprise rules and regulations must go through
Adoption by the Workers' Congress?
Article 18 of the "Company Law" "When a company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations, it shall listen to the opinions of the company's trade union, and listen to the opinions and suggestions of employees through the employee representative assembly or other forms." It only stipulates that the opinions of employees should be heard through the form of employee representative assembly. As for the rules and regulations involving the vital interests of workers, although Articles 20, 21, and 22 of the "Regulations on the Workers' Congress of Shandong Province" stipulate that the enterprise workers' congress shall review various systems and plans of the enterprise, however, according to the second paragraph of Article 4 of the Labor Contract Law of the upper law, "When the employer formulates, modifies or decides on labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, employee training, labor discipline, and labor quota management, etc. When rules and regulations or major matters directly related to the vital interests of workers, they shall be discussed by the workers' congress or all employees, and plans and opinions shall be put forward, it shall be determined through equal consultation with the trade union or employee representatives." Therefore, the formulation of rules and regulations requires enterprises to go through democratic procedures, which can be discussed with all employees and then determined through equal consultation with trade unions or employee representatives.
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