Bargaining principle under multiple union system
① With the implementation of multiple union system at the enterprise level starting July 1, 2011, the unifying of bargaining channels is mandated in the Trade Union Act to avoid possible confusion, under which the principle of ’One Company, One Bargaining Channel, One Collective Agreement’ should be respected.
– Separate bargaining may increase bargaining costs, and raise the possibility of fierce competition between trade unions and controversy over unfair labor practice.
※ Unifying of bargaining channels is an imperative law which all trade unions must follow.
Responding to bargaining demands from trade unions
① An employer should refuse to bargain if a trade union demands collective bargaining before July 1, long before expiration of the existing collective agreement.
– If an employer accepts a union demand for collective bargaining, he/she may avoid possible confusion in the short run (caused by implementation of the multiple union system) regarding the collective bargaining structure. Yet at the same time, the employer may have to deal with protracted collective bargaining with existing trade unions and legal disputes with newly established ones.
② If an employer is already engaged in collective bargaining with an existing trade union before July 1, 2011, the employer may refuse to bargain with any new trade unions established after July 1.
– Pursuant to the Trade Union Act, a trade union already engaged in collective bargaining with the employer as of July 1, 2011, is recognized as the bargaining representative union. Even if a new trade union is established, unifying the bargaining channels would not be necessary.
※ There are different perspectives regarding the implementation date of the revised labor law; January 1, 2010 and July 1, 2011. Those who view the implementation date as January 1, 2010 argue that bargaining channels should be unified and the bargaining representative union selected from all unions including new ones even if an employer is engaged in collective bargaining with existing trade unions as of July 1.
③ An employer may refuse a demand for collective bargaining if the demand is raised more than 3 months before the expiration date of the existing collective agreement.
– A trade union may demand collective bargaining from 3 months prior to the expiration of the existing collective agreement, whereas an employer may refuse any demand for collective bargaining if the trade union demands it earlier than that.
④ An employer should refuse demands for collective bargaining by a trade union not participating in unification of bargaining channels or that has dropped out of the procedures.
– Unless an employer agrees to bargain separately, trade unions in a workplace should select their bargaining representative union (Trade Union Act, Article 29.2). The employer may refuse to bargain with a trade union not participating in the unification process, or that has dropped out of the process.
⑤ If there is a demand from an industry-level union for collective bargaining, the employer should verify whether his/her employees have membership in the industry-level union.
– An employer may refuse to engage in collective bargaining with an industry-level union if it’s not clear whether his/her employees belong to the industry-level union. In this regard, an employer needs to verify first whether his/her employees have joined the industry-level union when the demand for collective bargaining is made.
⑥ An employer should refuse any demands for collective bargaining from trade unions which have not reported their establishment.
– Only trade unions or trade union branches which have been issued a certificate of establishment from the relevant administrative authorities are permitted to demand collective bargaining.
⑦ A trade union that makes a written demand for collective bargaining without its official name or the name of its representative is excluded from the bargaining channel unifying process.
– The Trade Union Act stipulates essential details to be included in the written document demanding collective bargaining. Trade unions demanding collective bargaining without the essential information in the document shall not be permitted to participate in the bargaining channel unifying process.
Unifying bargaining channels
① An industry-level union should also participate in the unified bargaining channel process. Otherwise bargaining authority will not be granted.
– Unless an employer agrees to bargain separately or the Labor Relations Commission decides there is a need for separate bargaining, an industry-level or regional union should also participate in the unified bargaining channel process. In this regard, an employer may refuse a demand for collective bargaining from an industry-level union which was not selected as the bargaining representative union.
② An employer needs to consider carefully whether to agree on separate bargaining upon the request of unions by taking into account the circumstances of the company and the impact of his/ her decision.
– An employer is the one who decide to agree on separate bargaining if there is a request from trade unions. If a trade union pushes for separate bargaining through illegal methods, the employer concerned should take a stern action under civil or criminal law.
③ If separate bargaining is unavoidable, the employer should clearly state the effective period of separate bargaining.
– The Trade Union Act does not stipulate any details regarding separate bargaining. In order to avoid unnecessary conflicts, it is desirable for an employer to make a written notification to the union of his/her agreement to engage in separate bargaining, with the effective period included.
④ Even if an employer agrees to bargain separately, a new trade union established after the confirmation of participating trade unions cannot demand bargaining.
– An employer’s obligation to engage in collective bargaining is limited to ‘the (confirmed) participating trade unions’. Even if an employer agrees to bargain separately, he/she may refuse to bargain with trade unions which are established after confirmation of the participating trade unions or that did not participate in the unified bargaining channel process.
⑤ Clauses on acceptance of separate bargaining should not be included in collective agreements.
– If such clauses are included in a collective agreement, a trade union is likely to take advantage of it by demanding separate bargaining. In order to avoid unnecessary conflict, it is desirable to keep such clauses recognizing separate bargaining out of the collective agreement.
⑥ If the Labor Relations Commission proceeds with separation of bargaining units, the unified bargaining channel process at a workplace should cease.
– If a trade union requests that the Labor Relations Commission separate their bargaining units, the unified bargaining channel process at a workplace halts. In this case, the employer should not proceed with the unification procedures even if other trade unions demand collective bargaining.
⑦ An employer should not accept a demand from trade unions for agreement on separating bargaining units.
– The Labor Relations Commission holds exclusive authority to decide separate bargaining units. An agreement on separate bargaining made between an employer and a trade union will not be recognized.
Bargaining procedures and concluding collective agreements
① Prior to collective bargaining, an employer should first decide on the rules for collective bargaining, such as the number of people involved in the bargaining, and who has the bargaining representative authority to conclude a collective agreement, and disallow additional bargaining.
– The Trade Union Act does not stipulate any rules for bargaining except unification of bargaining channels. The rules for collective bargaining need to be clarified before bargaining starts. These rules should include the number of people involved in the bargaining and who has the bargaining representative authority to adopt a collective agreement, and disallow working-level bargaining with each union.
② An employer should refuse trade union demands which may affect the purpose for unifying bargaining channels.
– Working-level bargaining with each union should not be accepted, nor a change of people involved in bargaining based on the issue.
③ An employer should not accept demands for additional collective bargaining even if the collective agreement made by the employer and bargaining representative union is rejected by the other trade unions.
– An employer should not accept demands for additional bargaining should the collective agreement be rejected by a vote of trade union members. Conflicts between trade unions may weaken the representative authority of the bargaining union and stability of bargaining procedures.
④ An employer should not accept arbitrary changes of bargaining representative union.
– Arbitrary changes of bargaining representative union should not be accepted as it may cause confusion during the bargaining process.
⑤ Any clause of a collective agreement which is likely to cause problems under the Multiple Union System should be revised in a rational manner. Possible areas of contention include the provision of facilities for trade union activities, allowing a single bargaining union and union shop clauses.
– Any clause of the existing collective agreement should be rationally revised since a new collective agreement under the multiple union system is likely to follow the previous collective agreement.
⑥ An employer should not accept any trade union demands that violate the duty of fair representation.
– An employer has the responsibility to provide fair representation, which precludes unfair treatment of trade unions without justifiable cause. In this regard, demands from trade unions for unequal treatment should not be accepted.
⑦ An employer should actively respond to any illegal industrial action by trade unions which may negatively affect the purpose for unifying bargaining channels.
– The bargaining representative union is the only union which can decide on industrial actions, and has the responsibility to guide, direct, and control industrial actions within the legal framework. In this regard, any industrial action led by other trade unions is illegal.
⑧ An employer needs to provide clarity on collective agreements regarding duplicate union membership and check-off of union dues.
– Under the multiple union system, employees are free to establish or join two or more trade unions. However, since duplicate union membership may cause confusion regarding the number of union members and increases in time for trade union activities, employers need to clarify application of the collective agreement on employees who have joined two or more trade unions and include methods for check-off in the collective agreement.
⑨ An employer should refuse trade union demands to specify violations of the duty of fair representation in the collective agreement.
– If violations of the duty of fair representation are specified in the collective agreement, these can serve as fair representation standards.
⑩ The time-off system is implemented based on the total number of union members at the workplace regardless of the number of bargaining units.
– Time-off is granted based on the total number of union members, covering all trade unions at a workplace. Whether bargaining units are separated or not has nothing to do with the time-off system.
Labor management under the multiple union system
① An employer should improve the current labor management system and ensure a labor management manual is in the workplace, in preparation for the multiple union system.
– In order to respond effectively to the multiple union system, measures need to be developed to improve the current labor management system in a workplace-oriented manner through the necessary means.
② An employer should be careful not to violate the duty of fair representation.
– New trade unions are likely to raise frequent legal issues related to violation of the duty of fair representation and allege instances of unfair labor practice as a way to strengthen their influence in the workplace.
③ An employer should actively respond to any action hampering the working atmosphere caused by conflict between trade unions.
– When the multiple union system comes into effect, competition between trade unions is expected to intensify, causing productivity to decline. It is therefore desirable for employers to take steps to improve working atmosphere and actively respond to disciplinary issues arising from activities which hamper the working atmosphere.