Because according to Article 18 of the Trade Union Law, the full-time chairman, vice-chairman or member of the grass-roots trade union will automatically extend the term of the labor contract from the date of taking office, and the extension period is equivalent to his term of office; If the term of office of the part-time chairman, vice-chairman or member is shorter than the term of office, the term of the labor contract will be automatically extended to the expiration of the term. However, unless the individual is seriously negligent during his tenure or reaches the statutory retirement age.
Trade unions represent and safeguard the legitimate rights and interests of workers, and trade union staff are protected by law in performing their duties. Giving full play to the due role of trade unions and their staff is conducive to promoting social and economic development and maintaining harmonious and stable social relations. According to the Trade Union Law of People's Republic of China (PRC) and the Articles of Association of China Trade Union, grass-roots trade unions can set up trade union committees, funds review committees, women's committees and other institutions, and the members of the above-mentioned internal institutions, that is, trade union committees, funds review committees and women's committees, should belong to the scope of trade union committees. The members of the trade union funds review committee and the female staff of the women's committee shall belong to the trade union members, who are part-time trade union members as stipulated in Article 18 of the People's Republic of China (PRC) Trade Union Law. As the unfulfilled labor contract is shorter than the term of the trade union members, according to Article 18 of the Trade Union Law of People's Republic of China (PRC), the term of the labor contract will be automatically extended until the term expires (for details, please refer to the Civil Judgment No.315 of Foshan Intermediate People's Court (2006)).
Case: 1
Xiao Zhang went to work in a private enterprise in a city from June 5438 to 10, 2000, and signed a three-year labor contract. In May, 2002, a new trade union committee was elected by the general meeting of trade union members of this enterprise, with a term of three years, and Xiao Zhang was elected as a female worker. In June 5438 +2003 10, the boss of this enterprise informed Xiao Zhang that the labor contract was expired and would not be renewed. Xiao Zhang believes that according to the trade union law, her labor contract should be automatically extended until May 2005, and enterprises should not terminate the labor contract on the grounds that the original labor contract expires. After failing to negotiate with the enterprise, Xiao Zhang reflected the matter to a city Federation of Trade Unions. After learning about it, a city Federation of Trade Unions immediately notified the city labor security supervision brigade. After investigation, the labor security supervision brigade found that the enterprise's practice violated the Trade Union Law and ordered the enterprise to make corrections within a time limit according to law. The enterprise will resume Xiao Zhang's work within a time limit.
[analysis]
This is a typical case of violating the trade union law and illegally dissolving the labor contract of grass-roots trade union staff.
Grass-roots trade union workers are prone to conflict with enterprise administration when representing and safeguarding the legitimate rights and interests of employees, and are subject to retaliation from time to time. In order to safeguard the rights and interests of grass-roots trade union workers, the Trade Union Law has made a series of special protection provisions for grass-roots trade union workers. According to the Decision on Amending the Trade Union Law of People's Republic of China (PRC) issued by the 24th Session of the Ninth NPC Standing Committee on October 27th, 2006/KLOC-0, Article 18 of the revised Trade Union Law stipulates: "The full-time chairman, vice-chairman and members of a grass-roots trade union will automatically extend their labor contracts from the date of taking office, and the extension period is equivalent to their term of office; If the term of office of the part-time chairman, vice-chairman or member is shorter than the term of office, the term of the labor contract will be automatically extended to the expiration of the term. However, unless the individual is seriously negligent during his tenure or reaches the statutory retirement age. " In this case, after Xiao Zhang was elected as a member of the trade union, his labor contract should be automatically extended until the expiration of his term of office, that is, in May 2005, the enterprise ignored the provisions of the trade union law and illegally terminated Xiao Zhang's labor contract. It is correct for a city's labor security supervision brigade to order enterprises to make corrections within a time limit according to the relevant provisions of the trade union law, which has effectively safeguarded the legitimate rights and interests of grassroots trade union workers.
Case: 2
Du Mou and Chen Mou are employees of a company. On June 6, 2006, Du was elected by secret ballot as the chairman of the trade union and as the propaganda committee member. On July 6th of the same year, the superior department of the company, Municipal Agricultural Machinery Bureau, approved the election results, and the Municipal Federation of Trade Unions also approved the company as a legal person of the trade union association, and Du was the legal representative of the association. At the beginning of Du and Chen's appointment, it happened that the Municipal Labor Dispute Arbitration Commission was handling the cases of three employees performing labor contracts. Because of the problem of proof, they asked the trade union to stand up for them. Du and Chen issued documentary evidence in the name of the trade union, confirming that the restructuring of the unit was not standardized, infringing on the legitimate rights and interests of employees, and re-signing the labor contract was illegal. On August 10, the municipal labor dispute arbitration commission held a court session, and the company lost the case. However, the company believes that Du and Chen abused their power to provide false evidence, and decided to hand over the seal of the trade union committee to the administrative office for management. /kloc-in September of 0/4, the company decided to re-elect the "two sessions" and the trade union at the same time on the grounds that the board of directors and the board of supervisors had no trade union members. 1June 10, the grass-roots trade union with a term of less than 4 months organized a general meeting for re-election (Du and Chen were not dismissed from their posts as trade union chairmen and members before re-election). The election result Chen is still on the list, but considering that Chen is involved in issuing false certificates and does not have the membership of trade unions, the company removed his name from the list submitted to the competent authorities. 165438+108, Minister Zhao, Vice Chairman of the Municipal Federation of Trade Unions and Minister of Justice and Industry, together with Secretary Zhu of the Commission for Discipline Inspection of the Municipal Agriculture Committee, went to the company to investigate and deal with it, seriously pointing out that the general election of the trade union committee was a serious violation of the trade union law, and ordered the original trade union committee to immediately resume and start working, but it did not attract the attention of the company. On February 29, 65438, Du He and others were both killed. On February 27th, 2002, in the case of unsuccessful mediation by the Municipal Federation of Trade Unions, the two filed a complaint and sued the company in the dock.
During the trial debate, Li Chendu, the plaintiff's agent, and Chen, the Minister of Law and Industry of the Municipal Federation of Trade Unions, were the legitimate trade union chairmen and members of the company, and Du was the legal representative with the legal personality of the trade union federation. According to the provisions of the trade union law, their term of office is three or five years. If the term of office is not full, the change is invalid, and the dissolution of the labor contract during the term of office is even more unfounded. Lawyer Zhai, the defendant's agent, believes that the general election is legal and valid on the grounds that the new trade union law was promulgated after the election, the old trade union law did not stipulate the term of office, and the complainant abused his power to issue false certificates (
Without proof), the General Assembly has the right to replace or recall them according to the actual situation. The complainant immediately denied issuing a false certificate, arguing that when three employees asked the trade union to prove their rights and interests, the trade union had the right to prove it realistically, and the recall or replacement must go through legal procedures. After a heated debate, the arbitral tribunal conducted mediation in court. No agreement was reached because of the great differences between the two sides. After deliberation, the arbitration tribunal held that Du, a part-time chairman and a part-time member of the trade union of a legal person enterprise, officially took office on July 6, 2006. Although the old trade union law did not clearly stipulate their term of office, the Constitution of China Trade Union promulgated by 1998 clearly stipulates that the term of office is 3 to 5 years, and the new trade union law clearly stipulates 3 or 5 years. Du and Chen did not have any serious personal faults after taking office. The company re-elected the trade union committee before the expiration of the term of the first trade union committee, and did not go through the recall procedures, which obviously violated the relevant provisions of the Trade Union Law and the Articles of Association of China Trade Union, and the re-election was invalid. Du and Chen's status as trade union chairmen and members should not be lost because of invalid re-election. Enterprises should extend the labor contract to the expiration of its term of office in accordance with the provisions of the trade union law, rather than just terminate it according to the time limit stipulated in the labor contract (200 1 year 65438+February 29).
Arbitral award:
1. Revoke the company's decision to dissolve the labor contract of Du and Er, and their labor contracts will continue until their term expires;
2. The company reinstated Du and Chen as part-time trade union chairmen and part-time trade union members, and reissued all the wages and benefits of Du and Chen since 2002 1 month until they were arranged to take up their posts.
[analysis]
This case is a dispute case of dissolving the labor contract. Due to the particularity of the identity of the object of the termination of the labor contract, this influential dispute case occurred. The key to this case lies in whether the trade union chairman and members of Du and Chen still exist and whether the new trade union committee after re-election is legal. To understand these two issues, first, it depends on whether the conditions for re-election of the trade union Committee are mature; The second is to see whether the procedures for the change of the trade union Committee are in place; Third, it depends on whether the re-election results are valid. In this case, the term of office of the company's trade union has expired for three months and it is not eligible for re-election. According to the Trade Union Law and the Articles of Association of China Trade Union, the term of office of the chairman and members of the trade union is three or five years. Before the expiration of the term of office of Du Fu and others, if there is gross negligence, they must first go through legal procedures of recall or replacement. If there is no recall or replacement, it means that the change procedure is not in place. The reason why the company re-elected the trade union committee is that there are no trade union members in the board of directors and the board of supervisors, so it cannot be established. Therefore, the re-election itself is illegal, and the result of the re-election is of course invalid. Therefore, it can be confirmed that Du and Ren are still legally recognized trade union chairmen and members of the company. The arbitration result of labor dispute is fair.