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从中国法律上说,结社自由是中国公民的基本宪法权利;组织和参加工会是劳动者的基本权利。现实中,由工会组织建设(组建set up)来实现劳动者的结社权。中国工会的组建具有三种不同模式:体制内单一组建、体制内双重组建、体制化组建。本文主要分析针对被派遣劳动者的第二种组建模式:体制内双重组建。被派遣劳动者参加工会的典型形态呈现“体制内双重组建”特色:组织关系在劳务公司工会、活动关系在用工单位工会,其实质是工会会员权利被分割,其最大的问题是会员组织权利(如选举权、被选举权和表决权等)难以得到有效行使、劳动权益得到工会维护的权利基本缺失。本文就此提出了在现行体制下(“体制内双重组建”)保障被派遣劳动者工会会员权利的建议对策。
From Chinese law, freedom of association is the basic constitutional right of Chinese citizens; organizing and participating in labor unions is a basic right of workers. In reality, the union organization (set up) to achieve the worker’s right of association. The formation of the Chinese trade unions has three different modes: a single establishment within the system, a dual establishment within the system, and a system-based formation. This article mainly analyzes the second mode of setting up the dispatched laborers: double establishment within the system. The typical form of the dispatched workers to join the trade unions presents the characteristic of “dual establishment within the system.” Characteristics: Organizational relations Labor unions and labor relations are unionized in labor units. The essence is that the union members’ rights are divided. The biggest problem is that member organizations Rights (such as the right to vote, the right to be elected and the right to vote, etc.) are difficult to be effectively exercised, and the labor rights are fundamentally devoid of the right to be protected by the trade union. In this context, the paper proposes the countermeasures for safeguarding the rights of dispatched laborer union members under the current system (“double establishment within the system”).