Study On The Judicial Application Of Article 43 Of Labor Contract Law In China

For a long period of time,the legal consequences of unilateral termination of labor contract by employers without notifying the trade union have been perplexing the academic and practical circles.Until the emergence of Article 12 of the Judicial Interpretation of Labor Disputes(IV),this problem has been solved to a certain extent.However,Article 12 defines the employer as "the employer that has established a labor union",but does not stipulate what legal consequences will arise if the employer without a labor union unilaterally terminates the labor contract without notifying the labor union.The practice circle and the theory circle hold different views on whether the employer without the labor union needs to notify the labor union when unilaterally terminating the labor contract.In order to make an in-depth analysis of the judicial application of Article 43 of the Labor Contract Law in the case of no labor union in the employer,this paper is divided into four parts besides the introduction,conclusion and outlook.The first part is the analysis of the judicial status quo.In view of Article 31 of the Labor Contract Regulations of Jiangsu Province,it is clearly stipulated that an employer without a labor union shall not be exempted from the obligation to notify the labor union by unilaterally terminating the labor contract,and the courts of Jiangsu Province almost without exception hold that an employer without a labor union shall be flexible in fulfilling the obligation to notify the labor union.However,in terms of alternative methods,the employer without a trade union should not fully comply with the provisions of Article 31,that is,the employer should notify the trade union in its locality to make a judgment,but propose or approve other alternative ways to fulfill the obligation of notification to the trade union.Jiangsu province other than due to a lack of formal legal source for non-union if unit of choose and employ persons needs to fulfill its obligation to notify the union made clear rules,the court on the issue of other provinces have larger discretion,so the other provinces of court for non-union of unit of choose and employ persons whether you need to perform the duty to notify the trade union has not yet formed a more unified the referee.In addition,there are other judicial application problems in Article 43 of the Labor Contract Law when there is no labor union in the employer.One is the court on the employer’s labor union other than the consequences of refusing to accept the employer’s notice to terminate the labor contract.Some courts think that the refusal of other labor unions to accept the notice of termination of the labor contract does not affect the determination of the obligation of the employer to notify the labor union.Some courts think that because other labor unions refuse to accept the notice of termination of the labor contract of the employing unit,the employing unit cannot be identified as having fulfilled the obligation of informing the labor union.Second,the court is not consistent with the distribution of the burden of proof of the employer’s labor union.Some courts investigate whether the unit of choose and employ persons has a trade union according to authority;Some courts hold that the worker should prove that the employer has a trade union,otherwise the employer does not have a trade union;Some courts hold that the employer should prove that it does not have a labor union,otherwise the employer is deemed to have a labor union.Third,individual judges on the employer to correct the notification of the labor union procedures of the time there are differences.In the second part,the employers in the first part of the flexible way to notify the trade union is typed analysis,found that there are mainly two flexible ways,one is to the workers’ representatives or workers(representative)conference to fulfill the notification obligation,the other is to other trade unions not the unit of the labor union to fulfill the notification obligation,In addition to notifying the local labor union of the employer,it also includes notifying the labor union of the parent company,the labor union of the parent company or the labor union of the enterprise group;To notify other trade unions the employees have joined;Inform the labor union of the employing unit,etc.The third part is to analyze the reasons for the problems existing in judicial practice.There are four aspects to the cause of norms.First,Article 43 of the Labor Contract Law does not specify the specific "trade union".Second,Article12 of the Judicial Interpretation of Labor Disputes(IV)does not specify "the situation in which there is no trade union".Third,the provisions of local judicial documents are different.Fourth,the relevant regulations on the employer’s unilateral termination of the labor contract burden of proof is not clear.The causes of practice are threefold.First,the phenomenon of avoiding proof of negative facts exists in judicial practice.Second,the court has differences on the establishment of the employer’s trade union.Some judges think that the establishment of a trade union is a right of the workers,the unit of choose and employ persons is not responsible for the consequences of not having a trade union.Some judges believe that the employer has the obligation to establish a labor union,and should be responsible for the illegal termination of the labor contract due to the failure to establish a labor union and the failure to notify the labor union.Third,judges misread and ignore the relevant norms.The fourth part is to put forward targeted countermeasures to the problems existing in judicial practice.There are four approaches at the standard level.First,it is clear through judicial interpretation that the employer without a trade union also needs to fulfill the obligation to notify the trade union and flexible fulfillment of the obligation to notify the trade union.The workaround method that the employing unit that does not have a labor union can take generally includes informing the worker representative,the worker(representative)assembly or the labor union of the location of the employing unit.In the respect of labor union of seat of unit of choose and employ persons,unit of choose and employ persons should inform its seat "small 3 levels" any one class labor union in basic level labor union organization.Location of unit of choose and employ persons does not have "small 3 levels" grass-roots trade union organization,notify the county-level trade union of its seat.Non-generic workarounds depend on specific circumstances.In the case that the employer is a subsidiary,the subsidiary may notify the labor union of the group or the labor union of the parent company of its unilateral termination of the labor contract.If the employer notifies the labor union of the parent company,it needs to prove that the labor union of the parent company can earnestly perform its duty of supervising the employer to unilaterally terminate the labor contract and safeguard the legitimate rights and interests of the employees of the subsidiary.In the case that the employer is a branch,the branch may notify the labor union of its head office of its unilateral termination of the labor contract.If no branch of the labor union chooses to notify the labor union of the head office,the head office shall make it clear that its labor union has the right to investigate and understand the working conditions of the employees of the subsidiary,so that the labor union of the head office can effectively safeguard the legitimate rights and interests of the employees of the subsidiary.Below the circumstance that joins other labor union to organize in laborer,unit of choose and employ persons removes the labor contract with laborer unilaterally the other labor union that can inform this laborer place to join.In the case of separation between the employing unit and the employing unit,the employing unit may notify the trade union of the employing unit of unilaterally terminating the labor contract.Second,it is clear worker is the main body that establishes the labor union of unit of choose and employ persons.Third,it is clear that the employer undertakes the burden of proof that there is no trade union.Fourthly,it is clear that the labor union refuses to accept the employer’s unilateral termination of the labor contract notice of the legal consequences.As long as the employer proves that it has effectively notified the union,even if the union refuses to accept the notice,it cannot deny that the employer has fulfilled its obligation to notify the union.The judicial response is twofold.One is to search for similar cases to reduce the phenomenon of different judgment in similar cases.The second is to train judges to improve their handling of cases.