AGUINALDO POR NAVIDAD (CANASTA NAVIDEÑA Y OTROS)

The legal framework of the function of trade unions in strike resolution relates to the Trade Union Law, Collective Contract Regulation, and tripartite coordination system. In the absence of a legal basis for the trade union to support strikes, the law rules out collective action as a legitimate form of union strategy.263

When strikes occur, the trade unions are required to resolve the disputes. Article 27 of the Trade Union Law specifies the role of the trade union in resolving a strike.264

It stipulates ‘When a strike or stoppage occurs in an enterprise, the union shall represent workers to negotiate with the enterprise or with relevant parties, express workers’ ideas and demands, and give the union’s proposal. The enterprise shall resolve workers’ reasonable requests. The union shall assist the enterprise to restore production and working order as fast as it can.’ The 1992 Trade Union Law (Article 25) stated, ‘when the strike or stoppage occurs in enterprises, the union shall work with enterprise administration or relevant parties, to negotiate to resolve workers’ reasonable requests which can be resolved, and restore production orders as fast as it can.’

Several implications can be drawn from the comparisons between these two regulations. The 2001 law enhances the union’s representation of workers, and it also regulates the enterprise’s duties in positively resolving the conflict. But the law does not provide the union with a right to strike, as was in the 1992 law. An implicit implication is that the union shall adopt methods of representing workers to negotiate, as well as methods in the workers’ favour, such as persuading, reminding, assisting, impelling workers, to go back to work. (Though Article 27 of the 2001 Trade Union Law may treat strikes as normal and allow space for the union to play a more forceful role on behalf of workers in the event of a stoppage, the article also tellingly states, “The trade union shall assist the enterprise or institution in properly dealing with the matter so as to help restore the normal order of production and other work as soon as                                                                                                                

263 _{Chen, F. (2003), ‘Between the State and Labour: The Conflict of Chinese Trade Unions’}

Double Identity in Market Reform’, p. 1018, in The China Quarterly, No. 176 (Dec., 2003), pp. 1006-1028.

264 _{In terms of strike resolution, there are a number of relevant laws providing provisions.}

Martial Law (1996), Civil Servant Law (2005), etc., ban strikes in a martial period or those conducted by civil servants.

possible.” Thus, the ACFTU’s subordination to the Party and State ensures that it is impossible for the union to initiate strikes and protests on behalf of its members.265

) The Collective Contract Regulation (2004) is among the few national laws regulating the resolution of disputes arising from the signing of collective contracts. Although it does not provide strike resolution, the principles it contains may be instructive to understand the authorities’ preference in utilising resolutions in the summer 2010 strike waves, since these disputes concern the matters falling outside established laws or rights.

The Collective Contract Regulations adopt a tripartite principle that is to be employed in the resolution process. Article 49 provided, ‘one or both parties can bring forward the application to the administrative department for coordinated resolution; if there is no application, the administrative department can in a coordinated way resolve the dispute when necessary.’ Article 50 provides, ‘Administrative departments for labour shall organise the trade unions at the corresponding levels and the representatives of enterprises, jointly coordinate the collective labour disputes.’ In regulating disputes arising from establishing a collective labour contract, this regulation states the duty of the negotiation parties (which here mostly refers to the workplace trade union and the manager) that they shall ask for government bodies to coordinate the dispute resolution.

This regulation does not see strikes as a normal part of collective negotiation. But the regulation indicates similar principles for the trade union’s role in collective labour disputes as those in the trade union law. It prescribes the trade union’s function in strikes as both a representative of workers at the workplace and a coordinator with the government in a tripartite framework at higher levels. The law also indicates the primary responsibility of the government in resolving disputes. In addition the law empowers the government with ‘active intervention’, that the government can intervene when ‘there is no application’. By 2012, 87% of provinces had promulgated their own provincial regulations on collective negotiation. Closer examination finds that, except for a few cases, these regulations on addressing collective disputes                                                                                                                

265 _{Elfstrom, M. and Kuruvilla, S. (2012), The Changing Nature of Labor Unrest in China, p.}

6, paper for the International Labor and Employment Relations Conference, Philadelphia, 2nd_-

seldom involve further provisions, but are simply a copy of the national provisions.266

This indicates a lack of specific legal guidance on the behavior of the authorities in strike resolution.

Since the 2000s, the tripartite system has been developed to resolve collective labour disputes.267

The institution of the ‘State Coordinating Labour Relations Tripartite Meeting’ (abbreviated as ‘tripartite coordination meeting’ or ‘TCM’) was formally created in 2001. It is constituted by chief members from MOLSS, ACFTU and CEC. Due to the fact that the CEC mainly represents public enterprises, there is tendency, especially at local levels, for including various enterprise organisations in the meeting institute, such as the All-China Federation of Industry and Commerce (ACFIC), employer associations, Chambers of Commerce, and other enterprise or entrepreneur associations. At the national level, the ACFIC was recently included to be the other employers’ representative at the national meetings. The TCM institution is chaired by the deputy minister of MOLSS, while the two vice chairs are from the other two parties. The institution extends from national, provincial and municipal meetings to local meetings at city, county/township/district levels, while the configuration remains the same. The TCM mechanism was set up comprehensively, by 2009, and all provinces had established the TCM system. Many of them reached down to the city, town, and street levels.

The TCM has four main functions: (1) making and implementing legislation and policy on major labour issues, (2) promoting collective bargaining at enterprises, (3) participating in labour dispute resolution, and (4) implementing the campaign of establishing harmonious labour relations in enterprises and industrial regions.268

The function of dispute resolution is prescribed to be ‘Investigating and analysing cross- region or national-wide factors influencing collective labour disputes or collective accidents, and proposing opinions and suggestions on their resolution.’269

From 2009, confronted with the dramatic increase in labour disputes, the national TCM adjusted                                                                                                                

266 _{Tu, W. (2013), ‘The current legislation of collective dispute resolution and its problems’,}

in Human Resource Development of China, 2013(21). In Chinese.

267 _{The term used here refers to both disputes of interests and disputes of rights.} 268 _{Renmin University Research Group, (2010), Tripartite Institute of Labour Relations}

Coordination – Analysis on its Improvement and Reform, p. 40-46, unpublished report. In Chinese.

269 _{‘Directory Opinions on the Establishment and Improvement of Tripartite Coordination}

its main functions. 270

In terms of dispute resolution, there were some additional emphases on collective dispute resolution:

• Strengthening the overall direction and service to local workers in coordinating labour relations, and establishing information communication and coordinated handling mechanisms.

• Working out resolutions together, adopting consistent actions in a co- ordinated way, and proposing opinions and suggestions on resolution.

But it rarely functions. Some of its professional committees only exist on paper. 271

An important reason is the government’s overwhelmingly dominant role in the operation of the mechanism while the organisations’ representativeness is questionable, thus lacking adequate credibility with their members.272 _{In some regions, the tripartite}

meetings are actually operated by a joint meeting between the government and the trade union, while the number of union officials involved compared with government officials is relatively few.273

Owing to these weaknesses, apart from a few cases, it has not been widely adopted in strike resolution.