Since the introduction of the multiple unions system in July 2011, workers who had not been able to join a trade union previously, are now allowed to form new trade unions. New unions for office workers, researchers, and contract workers will likely appear, and unions for workers in management positions or higher could also be established. In order to respond to these changes, existing trade unions are trying to expand the eligibility for workers to join their unions. With this expansion of scope, existing trade unions can strengthen their representation and reduce the possibility of multiple unions being established. Existing trade unions can also improve their financial situation if more workers become eligible to join them.
The attempt by trade unions to expand the scope of union membership takes various forms. Unions formed for manufacturing workers may also embrace office workers or include workers in management positions or even higher, as potential union members. There have even been instances where company-level union branches affiliated with industry-level trade unions have admitted in-house sub-contract workers.
Expanding the scope of workers who can join trade unions will increase the burden on companies. If companies have previously been concerned with the possibility of multiple trade unions being established, now is the time to consider the possible repercussions from that the existing unions are expanding the scope of union membership, and implement measures to address the problem. The following case study of Company “A” elaborates the possible problems that can arise when a trade union unilaterally changes its own rules and expands the scope of union membership.
Limitation on expanding the scope of union membership by modifying trade union rules
The trade union of public company A is currently initiating its election pledge and expanding the scope of union membership. The union has insisted that it can apply more pressure on the company through the admission of more members, and is planning to modify the current rules and even include deputy general managers in its potential membership.
Is it legal for the trade union to extend the scope of its membership without consultation or discussion with the company? The answer is “yes.” Extending the scope of trade union membership can be done simply by changing the trade union rules since it is an internal issue of the union. Agreement between the company and the union is not required for this. Nevertheless, the trade union cannot extend its scope on an unlimited basis.
The Trade Union & Labor Relations Adjustment Act (TULRAA) does not allow an employer or other persons who always act in their employer’s interest, to join a union. Thus, even if the trade union of Company A changes its rules and allows for workers at the management level, it is illegal for a person who acts in the employer’s interest to join the union. For example, team chiefs or general managers are not allowed to join a trade union if they are in a position of acting in the employer’s interests through responsibilities such as directing tasks or evaluating performance. In this case, the company can make an appeal and ask the Ministry of Employment & Labor (MOEL) to issue a corrective order to the union.
If the trade union allows such personnel to join the union despite the corrective order, the company can then consider relieving the personnel concerned from the position. In this case, it is possible that the union would insist that the company is engaging in unfair labor practices. However, this case could not be assumed as being intended as an unfair labor practice since it is aimed at the prevention of damage to business activities and protection of the trade union autonomy. Still, companies need to minimize possible problems during the process of changes in the status of personnel, even though the change may be legal.
Companies need to fully explain to the employees about the purpose behind the change of the position, and provide ample opportunities to choose between joining the trade union and retaining the position. Also, it is important to have a written agreement between the company and the employee which states that the employee will not object to the company’s decision to change the employee’s job position.
Difference in the scope of union membership as defined by trade union rules and collective agreements
The collective agreement of Company A states that ‘employees may join the trade union except for the personnel in certain positions.’ Therefore employees in the particular positions, professions, and occupational groups are not allowed to join the union.
According to the collective agreement, managers or those in higher positions cannot join the union. Would this still be legal even with the inconsistency between the trade union rules and the collective agreement?
In principle, there is no problem with this even though the scope of trade union membership is stated differently in the collective agreement and the trade union rules. The Supreme Court considers that regulations defining qualification for union membership under trade union rules and collective agreements are different. According to the Supreme Court decision, the trade union regulation is about ‘qualification for union membership,’ whereas the regulation under collective agreements is about the ‘application scope of collective agreements.’
Therefore, even if the trade union of Company A changes its rules and includes managers or personnel in higher positions, those workers cannot be subject to the existing collective agreement. The trade union would need to make a new collective agreement in order to settle the problem of some union members not being affected by the collective agreement.
Nevertheless, it is possible to apply the existing collective agreement to the new union members if the existing collective agreement does not stipulate the scope of union membership. To minimize the impact of the trade unions’ decision to expand the union membership, it is recommended that companies clearly stipulate the scope of such application in their collective agreements.
Flexible measures needed to deal with extending union membership, considering current labor relations
Extending the scope of potential union membership does not always disadvantage the companies concerned. Companies can have discussions concerning grievances of workers in the various occupational categories, and it may be more cost-effective than dealing with multiple trade unions. Therefore, it is recommended that CEOs have a flexible view of the issue by analyzing possible problems and also considering factors such as labor practices, characteristics of the union, capabilities for labor management, etc.