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3.Case 1: Specific application of collective bargaining and collective contract.
1. Background information:
The labor union of a company conducts collective negotiation with the enterprise on behalf of employees on employee welfare matters. On May 20, the union submitted the proposal for collective bargaining to the enterprise, requesting that the collective bargaining be held on June 25. In the collective bargaining proposal, it is stated that a total of 8 employees participated in the negotiation. One of them is a university professor and the other is a lawyer. On June 20, the company replied orally that because the union had invited people from outside the company to participate, they did not agree to collective bargaining. The trade union applied to the Labor Dispute Arbitration Commission for arbitration, and the Labor Dispute Arbitration Commission made a decision not to accept the case after study.
2. Questions: 1) According to the provisions of China's current laws and regulations, please point out the errors and explain the reasons.
Answer: 1) According to the relevant laws and regulations, one party to the negotiation may hire a person from outside the enterprise to serve as its own negotiation representative, but the number of its own negotiation representatives shall not exceed one-third of the number of its own negotiation representatives. In this case, a total of 8 employees participated in the negotiation, but the hiring of 3 personnel from outside the enterprise did not comply with the provisions of the above-mentioned laws and regulations. 2) The relevant laws stipulate that if one party submits a collective bargaining proposal to the other party in writing, the other party shall give a written reply within 15 days from the date of receipt of the collective bargaining proposal. In this case, the trade union handed over the collective bargaining proposal to the enterprise on May 20, and the enterprise replied orally on June 20, which did not comply with the provisions of the above-mentioned laws and regulations.
2) Whether the decision of the labor dispute arbitration commission not to accept the case is correct and why?
Answer: 1) The relevant laws and regulations stipulate that in the event of a dispute arising from the performance of a collective contract, one party may apply for arbitration or file a lawsuit in accordance with the law. This case is a dispute arising from the signing of a collective contract, which should be handled by the labor and social security administrative department in accordance with the law. 2) If an enterprise refuses a trade union's request for collective bargaining, the trade union may request the labor and social security administrative department to coordinate the handling. In this case, the trade union's application to the labor dispute arbitration commission for arbitration did not comply with the provisions of the above-mentioned laws and regulations, and the labor dispute arbitration commission could not accept it in accordance with the law.
3.Case 2: The nature of trade unions in China.
1. Background information:
A wholly foreign-owned enterprise has not established a trade union for more than two years, and the superior trade union goes to the enterprise for coordination and communication according to the feedback of the company's employees, and the general manager of the foreign party believes that there are two major reasons for not establishing a trade union: First, the company is headquartered abroad, and the company has repeatedly asked the headquarters for the establishment of a trade union but has not replied, so it is not easy to handle. Second, the company believes that the establishment of a trade union is the autonomy of the enterprise, and the higher authorities have no right to intervene. In interviews with employees, the higher-level trade union found that 70% of employees had the desire to form a trade union.
2. Question: If you are a member of a superior trade union, how can you reason with it according to law?
Answer: 1) The formation of a trade union does not require the consent of other institutions. According to the nature of trade unions in China as stipulated in the Trade Union Law, trade unions are mass organizations of the working class voluntarily united by workers, and trade unions carry out their work independently and autonomously in accordance with the law with their colleagues who uphold the Constitution. 2) The Trade Union Law stipulates that higher-level trade unions have the right to help and guide enterprises and institutions to form trade unions in accordance with the law. 70% of the employees of the enterprise are willing to form a trade union, and the superior trade union has the right to enter the enterprise to help the enterprise form a trade union. 3) Legal liability stipulated in the Trade Union Law: Any unit or individual who obstructs the establishment of a trade union shall bear legal responsibility.
3.Case 3: Protection of trade union cadres.
1. Background information:
In order to strengthen labor management, an enterprise has made a series of new regulations on job competition and contract term, but in the team meeting, 6 of the 8 teams in the factory have objections to the re-signed contract period, which is reflected to the trade union. According to the opinions of the employees and with reference to the spirit of the relevant laws and regulations, Li Gang, part-time chairman of the trade union, put forward opinions and suggestions to the management of the enterprise. After communication and coordination, the matter was properly resolved. Three months after the incident, the company suddenly informed Li Gang that he had not cooperated well with the management of the company's labor contract and that his term of office was about to expire (the term of office of the trade union was still 3 months, and the term of the labor contract was still 2 years), and proposed two options for him. 1 If the company chooses to terminate the contract, the company will pay one year of compensation and one month's economic compensation. 2. If you do not choose to terminate the contract, you will face the adjustment of the position (the salary of the intermediate technical personnel agreed in the labor contract is 3,500 yuan, and the salary of the general operator will be 1,200 yuan).
2. Questions: 1) Do you think the company's approach is right?Why?
A: The way the company asked the union president to choose was wrong. 1) The procedure for transferring the chairman of the trade union is illegal. If the chairman of the trade union is transferred, the consent of the trade union committee at the same level and the trade union at the higher level shall be sought in accordance with legal procedures. 2) If the chairman of the trade union does not choose, the enterprise cannot unilaterally terminate the labor contract of the chairman of the trade union. In this case, in order to safeguard the legitimate rights and interests of the employees and reflect the opinions of the team, the chairman of the trade union should give him economic compensation of not less than twice his annual income in accordance with the provisions of the Trade Union Law.
2) If you participate in the coordination of such a case, how should you make suggestions in accordance with the law?
Answer: The "Regulations of Shanghai Municipality on Trade Unions" stipulate that if the term of office of the chairman of a trade union has not expired, he shall not be arbitrarily transferred to a trade union post or a post agreed in the labor contract. If the enterprise needs to transfer the position of the part-time chairman of the trade union due to work, it is recommended that the enterprise should reach an agreement with the person in accordance with the principle of reasonable arrangement and go through the relevant formalities of legal procedures.
3.4. Case: Determination of the validity of the resolution of the workers' congress.
1. Background information:
In April 1999, a state-owned enterprise carried out the work of changing the term of office of the workers' congress every three years. In August 2005, when the company submitted its plan for employees' salaries and working hours to the workers' congress for deliberation and voting, it was opposed by the majority of employees. Employees believe that the workers' congress of the enterprise has expired and is not legal. In this regard, he visited the relevant departments of the city many times, and asked the higher-level departments of the enterprise to agree with their opinions and carry out the re-election of the workers' congress.
2. Questions: 1) Is the employee's opinion correct?Why?
Answer: The opinion of the employees that the workers' congress of the enterprise is illegal because of the expiration of the term of office is correct. The relevant provisions of this city make it clear that the term of the workers' congress of grass-roots enterprises and institutions is generally 3 years, and the workers' congress of the enterprise in this case should expire in April 2002, but by August 2005, after 3 years and 4 months, the enterprise has not yet changed its term, which is an overdue workers' congress and has lost its legal effect, so the opinions put forward by the employees are correct.
2) How should the operating procedures for the re-election of the workers' congress be carried out?
Answer: The re-election of the workers' congress is consistent with the preparatory procedures for the workers' congress. First of all, it will operate according to the basic rules for electing deputies to the workers' congress, and then operate according to the four stages of work of the workers' congress, and fulfill the rules and regulations of the enterprise and the remuneration system in accordance with the law.
Supplement: Determination of the validity of the resolution of the workers' congress.
1. Background materials.
An enterprise has a total of 190 employees. When the inaugural congress deliberated on the draft salary and bonus distribution, it was opposed by the workers' representatives. Employee representatives pointed out that the number of employee representatives of the enterprise is too small, only 18 representatives, and 11 representatives are still the general manager, deputy general manager, section chief, director of the unit, and the proportion of representatives is not right. As a result, they called for the re-election of employee representatives in accordance with the normative proportional representation structure.
2. Questions. 1) Are these opinions put forward by the employee representatives correct?
Answer: The opinions put forward by the employee representatives are correct.
2) Please explain the reason.
Answer: According to the regulations of the Shanghai Municipal Workers' Congress, if the number of employees is between 100 and 3,000, the number of representatives shall be based on 30, and the number of representatives shall not be less than 5 for every 100 additional employees. The composition of employee representatives should be mainly front-line workers, and no more than 20% of middle and senior management personnel. In this case, the enterprise had a total of 190 employees, and at least 30 representatives should have been there, but the actual number of employee representatives was only 18, which was less than the minimum number requirementMoreover, the proportion of leading cadres above the middle level is as high as 60 percent, which obviously does not conform to the regulations, so the opinions put forward by the employee representatives are correct, and the units should correct them in accordance with the requirements of the norms.
Effective procedures for the resolution of the staff congress.
1. Background materials.
An enterprise held a workers' congress on the afternoon of January 20 to review the draft plan for the use of employee benefits this year. On that day, only 26 of the more than 50 employee representatives came, and another 24 representatives were unable to attend the meeting due to some subjective reasons. Before the meeting, the conference group issued the draft plan, and the leaders of the enterprise briefly introduced the drafting process of the draft at the meeting, and then submitted the draft plan to the workers' congress for deliberation and voting, and a total of 20 employee representatives raised their hands to agree to the draft plan. The presiding officer of the meeting announced that the draft plan had received more than half of the votes of the actual deputies, and the plan was adopted and could be implemented.
2. Questions. What are the basic rules of the workers' congress that the company has violated?
Answer: The company violated four rules of the workers' congress: 1) The workers' congress can only be convened if more than two-thirds of all employee representatives are present. Of the 50 representatives of the enterprise, only 26 were present, apparently falling short of the required number of representatives. 2) Enterprises and institutions shall, seven days before the convening of the workers' congress, submit the draft review plan to the employee representatives and listen to the opinions of the employee representatives and the masses of employees. However, the enterprise only sent the draft plan to the employee representatives before the meeting, so that the employee representatives did not have time to review the draft plan and listen to the opinions of the workers. 3) The vote of the workers' congress shall be approved only by the affirmative vote of more than half of the delegates. However, the enterprise is based on the actual number of representatives, which obviously does not meet the requirements of the specification. 4) The plan for the use of employee welfare in state-owned enterprises should belong to the deliberation and decision power of the workers' congress, and the authority of the authority is to vote by secret ballot on the basis of deliberation, but the enterprise is carried out by a show of hands, which obviously does not meet the requirements of the norm.