Striking the balance in industrial relations in China? An analysis of court decisions of 897 strike cases (2008–2015)

Tianyu Wang, Fang Lee Cooke

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5 Citations (Scopus)

Abstract

Labour legislation in China does not clearly stipulate the legality of strikes. The prevalent view amongst scholars is that strikes are legitimate because ‘everything which is not prohibited is allowed’. However, our analysis of court rulings on 897 strike cases between 2008 and 2015 indicates otherwise. The converse principle, ‘everything which is not allowed is prohibited’, seems to prevail. Of the two established doctrines (per se violation and rule of reason), the former appears to be preferred. The majority of court decisions routinely uphold the employer’s decision to dismiss strikers, on the grounds that the strikers violated work rules against work stoppages, and that the strike is illegitimate. Only a small number of decisions take into account the context of employees’ demands and the reasonableness of their conduct, and determine that they are engaged not in work stoppages but in ‘negotiations’. The disproportionate adoption of the principle of per se violation in collective action cases indicates a dominance of a formalist approach to legal reasoning, which is underpinned by the courts’ professional conservatism and political duty in the current Chinese politico-economic environment.

Original languageEnglish
Pages (from-to)22-43
Number of pages22
JournalJournal of Industrial Relations
Volume59
Issue number1
DOIs
Publication statusPublished - 1 Feb 2017

Keywords

  • China
  • court decision
  • labour dispute
  • labour law
  • right to strike

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