The evolution of individual and collective rights in the Chinese workplace

ABSTRACT

Due to the underdeveloped nature of organized labor, it is possible to view the ‘individual’ and ‘collective’ components of labor legislation in China as separate and severable. This article aims to challenge such thinking by arguing that collective labor law and collective bargaining practices in China have profoundly shaped the law of employment contracts and individual employment relations. To this end, analyzing the laws surrounding individual employment contracts should not proceed without considering collective labor law. This article investigates, in the first three decades following the establishment of the People’s Republic of China in 1949, the significance of collective rights to the underdevelopment of legal rules of employment rights and the emergence of the socialist social contract. This article also examines, after the economic reform of 1978, the various ways collective bargaining contributed to the transformation from the socialist social contract to the standard contract of employment and from an underdeveloped to a comprehensive framework of employment legislation. Finally, in the post-economic-reform decades, the analysis suggests that collective bargaining encourages the empowerment of trade unions with legislative and administrative efforts and facilitates the incorporation of terms and conditions improvement into individual employment contracts.

KEYWORDS:

• labor relations
• labor law
• employment contract
• trade unions
• labor history
• China

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The 1992 version of the Trade Union Law stipulated that trade unions should educate and mobilize workers to enhance productivity and protect company property (Article 8). The law also required trade unions to educate workers in supporting the modernization of China (Article 9).

2. Article 11 of the 2008 Employment Law states that ‘the labor compensation of the new employee shall be decided pursuant to the rate specified in the collective contract; where there is no collective contract or the collective contract is silent on the matter, equal pay shall be given for equal work.’ Additionally, similar wording is included in Article 18, which declares that ‘If there is no collective contract or the collective contract is silent on the issue of labor compensation, equal pay shall be given for equal work … ’

3. Article 28 of the 2008 Employment Contract Law states, ‘If an employment contract is confirmed as invalid and the employee has already performed labor … The amount of labor compensation shall be determined with reference to the labor compensation of employees in the same or a similar position with the employer.’

4. Article 85 of the 2008 Employment Contract Law indicates that ‘If payment is not made within the timeframe, the Employer shall be ordered to pay additional damages to the Employee at a rate of not less than 50% and not more than 100% of the amount payable’

5. Article 66 of the 2012 Employment Contract Law stipulates that ‘employment based on written contracts comprises the basic form of employment’

Additional information

Notes on contributors

Quan Zou

Quan Zou received the bachelor‘s degree from Jinan University, P.R. China. Her master degrees were earned from University of Southern California and her doctoral degree was granted by the University of Hong Kong. Her research interests include employment law, labor law and law and society.