|
Company A entered into a collective agreement with its trade union where they agreed to keep one paid time-off employee and one unpaid full-time union official, instead of the 5 paid full-time union officials it used to allow before. The trade union notified the company that it had chosen Mr. Lee and Mr. Park, two previous paid full-time union officials, to be the paid time-off employee and unpaid full-time union official, respectively. However, the management was uncomfortable with this, as it needed Mr. Lee and Mr. Park to manage a new factory. The management is concerned that it would face criminal charge if it does not accept the decision of the trade union, and is confused as to whether the two workers are legally considered the paid time-off employee and unpaid full-time union official once the union has made its decision.
|
Introducing the time-off system
The time-off system was introduced in 2010 to do away with the unfair labor practice which had many companies paying wages to full-time union officials. Many workplaces did what Company A did: approve both paid time-off employees and unpaid full-time union officials, instead of reducing the number of paid full-time union officials.
Companies are not obligated to keep paid time-off employees or unpaid full-time union officials, even if the company has a trade union. However, employers are providing some assistance for union activities by stipulating articles about paid time-off employees or unpaid full-time union officials in their collective agreements.
Nevertheless, it is a great loss for a company when it has hired talented personnel but cannot use them for work. This is the reason why most employers hesitate when their trade unions seek to designate those personnel as union officials. Employers should be aware that they can face criminal liability for unfair labor practice if they continually reject demands from trade unions without good reason. This is a very sensitive issue for employers since orders to return to work or restrictions on paid time-off employees and unpaid full-time union officials can sometimes be determined as unfair labor practices.
Designation of unpaid full-time union officials and paid time-off employees
Labor Law defines “unpaid full-time union official” and “paid time-off employee”, but it does not specify the process for designation or their return to work. Thus, labor and management must work together on how to solve those issues through their collective agreements. Nevertheless, while the number of full-time union officials and paid time-off employees is usually stipulated, few workplaces have collective agreements that outline the process of designating unpaid full-time union officials and paid time-off employees or their return to work. These insufficient regulations are sometimes the cause for disputes between labor and management.
Generally, designation of full-time union officials starts with a decision by the trade union, which then notifies the employer of the certain member(s) it wishes to appoint. The process completes when the company agrees. But will Mr. Lee and Mr. Park be designated as the paid time-off employee and unpaid full-time union official if the company does not agree?
The courts have already ruled that the paid time-off employee and unpaid full-time union official will be confirmed only if the company agrees to the appointments, since the company approved the existence of unpaid full-time union officials only for the convenience of the trade union. There has been no ruling related to paid time-off employees yet, but the same view is expected since the existence of paid time-off employees was approved for the convenience of the trade union.
Thus, the new positions for Mr. Lee and Mr. Park will not be confirmed before the company’s final approval, even if the trade union has notified it of their decision. The company is not required to agree with the union in this case.
As has been previously described, companies can postpone realization of union demands if it has a good reason to do so, such as, in this case needing to keep workers with particular job skills in management positions at a new factory. However the company should let the union know the circumstances around their rejection of such a decision by the union as soon as possible. Delaying personnel changes without communicating the reasons to the union can lead to criminal liability for unfair labor practice.
Returning to work: the unpaid full-time union official and paid time-off employee
Unpaid full-time union officials and paid time-off employees returning to work is a more sensitive issue than designation, since the return is related to termination of their positions. Employers should pay close attention to the reasons for the return, the process, and the duties of the employees concerned after their return.
Most of the time, previously active union officials will return to where they used to work. But in Company A’s situation, it is also possible that these returning employees would be needed at a new workplace. This will not be problematic if the returning employees agree, but if the collective agreement stipulates ‘workers shall return to where they used to work at the point of return,’ the employees may object to their new location.
The courts state that employers can place returning employees at a new workplace if appropriate reasons exist and if it does not harm the returning employees’ interests, despite a collective agreement that states ‘workers shall return to where they used to work at the point of return.’
It is therefore possible for Company A to place Mr. Lee and Mr. Park at the new workplace as long as the return does not severely disadvantage them and the new workplace requires the two workers. It is recommended though that the company explain the necessity for the new placement for their return and give them a chance to express their views of the new placement.
Unlike unpaid full-time union officials, time-off employees are exempted from a certain number of working hours, but still work for the company and receive wages. Therefore, companies may not need to order time-off employees to return to work, but instead may simply notify them of the expiration of their time-off status.
Wise decisions regarding time-off system are required for soft landing
Since the revised Trade Union and Labor Relations Adjustment Act (TULRAA) was introduced, designation of the paid time-off employee and unpaid full-time union official and their return to work has become very sensitive issues in workplaces which had to reduce the number of paid full-time union officials according to the Act.
Of primary importance is that there must be thorough consultations between labor and management before beginning the process for designation and return to work.
Management should also specifically stipulate and notify the union and returning employee(s) of the reasons for returning to work, as well as the schedule, place, and expected tasks. Companies also need to train and/or educate the returning employees to aid them in their return. Wise management decisions are needed more than ever to prevent disputes with labor and facilitate acceptance of the time-off system.