Company A and its trade union president have concluded a collective bargaining agreement after lengthy negotiations.The union suddenly held a vote on the already-signed agreement, and declared the agreement null and void on the grounds of the voting outcome. Company A has no idea on how to handle the union’s unilateral decision on the collective bargaining agreement.
The main purpose for voting in general is to ensure a democratic and prudent decision-making process, and the same is true in labor-management relations. For this reason, a trade union holds votes in order to prevent decision-making from being in the hands of a few union officials, and to take the opinions of the entire membership into account to obtain consensus.
As Korean labor law provides only general rules regarding voting by union members (“direct, secret, and unsigned ballot,”) each trade union has their own bylaws on voting procedures in order to ensure democratic outcomes.
Under what circumstance would a trade union conduct a vote?
A trade union holds a vote on various matters such as changing its affiliation with a certain umbrella union, amending its bylaws, non-confidence motions against its leadership and industrial action. There may also be various agenda items brought to a vote in accordance with union bylaws. Voting, however, is sometimes the catalyst for generating unnecessary conflict or confusion at the workplace, contrary to its original purpose.
For example, suppose a union holds a vote on whether to go on a strike and only a few members vote in favor. In this case, the union might extend the voting period until obtaining an approval 50% of its members, which is the minimum required to authorize industrial action. Even should the union fail to receive enough favorable votes from its members, it sometimes extends the voting period until its general meeting, which is an ambiguous deadline, and then conducts another vote. It is preposterous to vote again on an already-rejected matter.
If a union conducts a vote repeatedly until it is satisfied with the result, this can be determined as illegal. However, such preposterous use of the voting right is a situation which many companies have experienced.
A vote held by a union on whether to approve a collective bargaining agreement is called an “approval vote.” Hereafter, we will look at the case of Company A and whether the collective bargaining agreement, which has been agreed to but not yet signed, can be nullified if union members vote against it.
Who has the right to bargain and make a collective agreement?
Normally, a collective agreement is signed immediately after concluding negotiations. A considerable number of unions, however, have bylaws requiring an approval vote (ratification) before signing any collective agreement.
While the anticipated outcome is that union members will vote in favor of the collective agreement, it may be rejected and trigger not only conflict between labor and management, but also between the trade union representative and union members, which in turn may result in other actions such as non-confidence motions against union officials.
Collective bargaining is the process of reaching agreement between labor and management, and the employer and trade union representative have the legal right to bargain and conclude collective agreements.
Accordingly, any collective agreement which an employer and the relevant union representative reach is considered valid. If a collective agreement signed by representatives of the employer and the trade union still requires approval from union members in a vote, this runs counter to the purpose for collective bargaining, and essentially means that the employer has been involved in lengthy negotiations with someone who has no authority to make agreements.
Is an approval vote required for a collective agreement to take effect?
While union bylaws requiring an approval vote can easily make such votes seem like a legal requirement, this is not the case. As mentioned above, the trade union representative has the authority to bargain and conclude collective agreements.
In this regard, the courts have ruled that any issues surrounding union leadership failing to hold an approval vote on a collective agreement are internal union affairs which may be subject to disciplinary action or non-confidence motions. That is, without an approval vote, the collective agreement is still valid regardless of an approval vote. This ruling indicates that union bylaws are supposed to regulate internal union matters and have no binding force on a collective agreement made by the employer and employee representatives.
If a union demands revision of an already-signed collective agreement due to rejection by the union in an approval vote, the employer can refuse and urge the union to find a way to implement it.
What should a company do if its trade union announces its plans to hold an approval vote before implementation of any agreement, prior to starting collective bargaining?
Given the fact that such an approval vote restricts the employer’s rights to collectively bargain, the employer can refuse to bargain with the union without fear of his actions being determined by law to be unfair labor practice.
>Joint labor-management efforts for effective bargainingAs Company A and the trade union representative have already signed the collective agreement, its collective bargaining is deemed to be legally concluded. Therefore, even though the union may claim that the agreement is invalid, Company A can carry on as normal, and fully expect that the agreement must be implemented.
How does an approval vote proceed at the workplace?
In many cases, employer and trade union representatives agree to sign a collective agreement depending on the result of an approval vote on a draft agreement. Because a trade union is holding a vote on the unsigned document, this is acceptable. If a trade union demands revisions to the draft agreement afterwards, this simply means that negotiations were temporarily suspended and now resumed.
An approval vote by a trade union may be thought of as only an internal procedure, but under some circumstances, it can be binding on both employer and union. In particular, if a collective agreement is not approved and should be negotiated again, this is an ineffective bargaining process that makes conflict between labor and management and between leaders and members of a union more difficult to handle. In order to ensure an autonomous labor-management relationship and stable bargaining, establishment of effective procedures is advised to communicate with the union and reach consensus.