Case Description

An enterprise has decided to eliminate some departments and positions for the sake of its business development, and the department where Wang, the non full-time trade union chairman of the enterprise, belongs is also being eliminated. The enterprise and Mr. Wang failed to reach an agreement after negotiation on changing their job positions and job content, and therefore intended to terminate their labor contract with Mr. Wang in accordance with Article 40 (3) of the Labor Contract Law. However, Wang raised an objection to the enterprise, arguing that as the chairman of the labor union, he is specially protected by laws, regulations, and relevant normative documents such as the Labor Union Law. Even if there are significant changes in the objective situation, the enterprise may not terminate the labor contract in accordance with Article 40 (3) of the Labor Contract Law.

Lawyer Analysis

There is currently no clear provision as to whether the provisions of Article 40 (3) of the Labor Contract Law, which provide for significant changes in the objective situation, can be applied to non full-time trade union chairmen in enterprises. Article 2 of the Labor Contract Law of the People's Republic of China (2012 Amendment) stipulates: "Enterprises, individual economic organizations, private non enterprise units, and other organizations within the People's Republic of China (hereinafter referred to as employing units) establish labor relations with workers, conclude, perform, modify, terminate, or terminate labor contracts, and this Law is applicable." Accordingly, the chairman of the part-time labor union of an enterprise, as a worker, has signed labor contracts with the enterprise, In principle, the provisions of Article 40 (3) of the Labor Contract Law can be applied to the modification and cancellation of labor contracts between them and enterprises.

However, because laws, regulations, and relevant normative documents such as the Trade Union Law provide special protection for the performance of the labor contract of the trade union chairman, the modification and cancellation of the labor contract between the enterprise and the trade union chairman should also comply with these special protection provisions. These regulations prohibit the transfer of a trade union chairman's job at will before the expiration of his/her term of office, and explicitly require that the consent of the trade union committee at the corresponding level and the trade union at the next higher level should be obtained when the work requires the transfer of the trade union chairman's job, and that a report and record should be submitted to the higher level trade union before the change, cancellation, or termination of the trade union chairman's labor contract.

Therefore, in this case, an enterprise cannot directly negotiate with Wang to change or terminate the labor contract in accordance with the provisions of Article 40 (3) of the Labor Contract Law, just as it treats ordinary employees. Instead, it should report to the enterprise's labor union committee and superior labor union in advance and obtain the consent of the same level of labor union committee and superior labor union before implementing it.