论用人单位工作规则制度完善及劳动管理法治之实现

工作规则,也就是我们一直所称的“用人单位劳动规章制度”,系达到法定雇用人数之用人单 位依据法定程序制定的“内部规则”。其性质尽管存有多种学说,但其规范性却被理论与实务界所接受。换言 之,它对劳动者和用人单位皆具相应的约束力。工作规则是否完善关涉劳动法是否有效实施,亦可称其为劳动 关系是否和谐的衡量器。《劳动合同法》第 4 条规定了“用人单位劳动规章制度”,但仅仅一个条文不可能将 该项制度应有的内容全部规定其中。我国学界与司法实务对其名称、属性、效力的认知尚处于初级阶段的水准。 劳动者常常被“违反用人单位规章制度”所左右,而制度的边界又模糊不定,执行用人单位规章制度往往成为 管理者的借口和托词。因此,完善工作规则制度,塑造其中法理,是劳动者之劳动能够有章可循、用人单位管 理避免恣意而为的根本所在,亦是创建和谐劳动关系的重要指标所在。

The Improvement of Employment Rules and Regulations of Employers and Realization of Rule of Law in Labor Management

Employment rules, known as "labor regulations and rules of the employer", are "internal rules" formulated by the employer in accordance with legal procedures for employing a certain number of people. Although the nature of such rules varies among various scholarly viewpoints, their normativity has been accepted in both theoretical and practical circles. In other words, employment rules have corresponding constraints on both employees and employers. The completeness of employment rules, which can also be regarded as a measure of harmonious labor relations, is related to the effective implementation of labor laws. Whilst article 4 of the Labor Contract Law stipulates the "Labor Regulations and Rules of the Employer", a single article cannot cover all the contents of this system. As the current academic and judicial practice in China is still in the early stage of understanding the name, nature, and effectiveness of the employment rules system, employees are frequently infl uenced by "violations of employer rules and regulations". In addition, as the boundaries of such rules are unclear, implementing the employment rules and regulations of employers often serves as excuses and pretexts for employers. Therefore, improving the employment rules and regulations and shaping its legal principles are the key to having organized labor and avoiding arbitrary employer management, as well as providing an important indicator for creating harmonious labor relations.