Unveiling the legal effect of collective agreements in China

Published date25 November 2019
DOIhttps://doi.org/10.1108/ER-06-2019-0238
Pages366-380
Date25 November 2019
AuthorDong Yan
Subject MatterHR & organizational behaviour,Industrial/labour relations,Employment law
Unveiling the legal effect of
collective agreements in China
Dong Yan
School of Law, Beijing Foreign Studies University, Beijing, China
Abstract
Purpose The purpose of this paper is to examine the actual legal effect of collective agreements by
focusing on the litigation regarding the implementation of collective agreements in China where current
literature on the topic is scarce.
Design/methodology/approach This paper deploys both quantitative and qualitative methods to
investigate the features of litigation regarding collective agreements. The judgments on collective agreement
by peoples courts nationwide from 1 January 2014 to 31 December 2018 provide the primary empirical data.
The intrinsic features of collective agreement disputes are investigated to delineate different sorts of
theoretically presumed legal effect, namely contractual, normative and other (if any). A number of collective
agreement templates and texts have been gathered and analysed to further explore the factors leading to
collective agreement disputes. A dozen of labour law professionals, workers, scholars and trade union
officials, were interviewed to verify the findings.
Findings The number of collective agreement disputes is relatively small compared to the number of valid
collective agreements or the volume of other labour disputes. This study found no litigation initiated by trade
unions to claim a remedy against a violation of a collective agreement by an employer. However, a growing
number of cases were filed by individual workers to complain about the terms and conditions of their
individual employment agreements in contradiction to the existing collective agreement. These data do not
mean that collective agreements lack problems or have no significance in action. A novel effect a
substitution effect”–is evident in the existing labour litigations and relatively popular amongst employers,
as they often refer to the collective agreement when a written individual agreement, as the mandatory
document, is absent. The advent of substitution effect reflects a pragmatic view amongst Chinese labour law
professionals, employers and workers.
Research limitations/implications Due to the recent establishment of the online judgments database,
this study has focused on collective agreement litigation in peoples courts from 2014 to 2018, which is
representative of the national trend of such disputes and thus provides valuable insights. Future studies
should cover a wider time span and extend to the collective agreement disputes subject to labour arbitration
to provide a fuller picture of the challenges and potential solutions.
Practical implications By understanding the legal effect of collective agreements in reality, the
legislature, workers and employers can act accordingly to enhance or empower it. The insignificant volume of
both contractual and normative claims on collective agreements indicates the pressing need to inject
something concrete into both substantive rights and the implementation mechanisms of collective
agreements. The existence of substitution claims illustrates the room for further implementation of written
individual agreements to reduce the need to borrow from collective agreements to fill the void left by the
absence of individual agreements.
Originality/value This study uniquely evaluates collective agreement disputes in China to seek their true
legal effect, finding the substitution effect of collective agreements that was absent from the prior literature.
The features of collective agreements are reflected in this work, together with public policy and theoretical
implications.
Keywords Substitution effect, Chinese labour law, Collective agreement, Implementation of law,
Labour Contract Law, Labour disputes
Paper type Research paper
Introduction
In recent decades, a number of regulations have been issued to frame collective bargaining
and collective agreements in China[1]. In accordance with Chinese labour laws, at the
industrial sector and enterprise level, branches of the All-China Federation of Trade Unions
(ACFTU) represent workers to negotiate collective agreements with employers regarding
remuneration, labour protections or special instruments for vulnerable groups, e.g. female or
youth workers. In theory, as the safeguard of the fruit of collective bargaining, collective
Employee Relations: The
International Journal
Vol. 42 No. 2, 2020
pp. 366-380
© Emerald PublishingLimited
0142-5455
DOI 10.1108/ER-06-2019-0238
Received 6 June 2019
Revised 14 August 2019
Accepted 23 September 2019
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/0142-5455.htm
366
ER
42,2

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