A Trade union was recently established in Company A. Immediately after its establishment, the union held a press conference to announce that the company had not been paying for overtime and had been violating the Labor Standards Act and the Occupational Safety and Health Act, etc. The union requested a special labor inspection by the Ministry of Employment and Labor. It also recently filed a complaint against the company for unfair labor practices, insisting that the company had induced union members to withdraw from union membership, interfered with trade union activities, and deliberately postponed collective bargaining.
As with Company A, companies with newly-established trade unions face issues regarding unfair labor practices such as violation of trade union laws, restriction of trade union activities and collective bargaining, etc. Following are the key points and precautions concerning HRM rights upon establishment of a trade union.
Ensuring compliance with the TULRAA
The issue of compliance with the Trade Union and Labor Relations Adjustment Act (TULRAA) is quite challenging for management, especially with a newly-established trade union. Companies whose workers were previously unorganized usually do not have the knowledge, experience, or human resources to deal with trade unions, and in most cases, dealing with collective bargaining is beyond their ability.
On top of the new bargaining, inspections followed by a complaint will lead to more problems for management. Companies are therefore advised to fully comply with the TULRAA and implement compliance checks, with outside help to ensure this.
Companies with newly-established trade unions should pay close attention to unfair labor practice issues. The MOEL has enhanced inspections concerning such practices since 2017, and began carrying out special inspections on companies with allegations of unfair labor practices in 2018.
One of the major problems which can arise in the early period of a trade union is domination of or interference with the union by management. Examples are when CEOs or managers make negative comments about the union during formal meetings, or induce union members to withdraw their membership. If unfair labor practices are recognized, negative impressions against the company will be made externally, and internally, the workers’ trust in the company will be lost. Lost trust will lead to weaker bargaining power in collective negotiation.
Ignorance of the law often leads to unfair labor practice issues. However, ignorance of the law can never be a defense. Managers who have the potential to be agents of unfair labor practices should be educated properly and pay close attention to what happens in the workplace.
This does not mean that companies are expected to give up their personnel and management rights. Managers should take appropriate measures if trade union members or officials carry out union activities during business hours without management agreement, or violate the employer’s right to manage his/her facilities through the illegal installation of union banners inside the workplace.
Trade union activities should be done outside of business hours, if no consent is given by the employer. Of course, a union should not violate an employer’s right to manage his/her facilities. Companies are advised to communicate with the union about such inappropriate activities, and foster their promotion within legal boundaries.
Establish reasonable collective bargaining principles prior to actual bargaining
Once a trade union is established, it makes a bargaining demand. If the multiple-union system has been adopted, unions are required to appoint among themselves a single bargaining channel and the employer is required to recognize the representative bargaining union. If the union makes a written bargaining request with a specific date and time for bargaining before management recognizes the representative union, then management should notify the union that the procedure for unifying bargaining channels has started. The actual date and time for bargaining can be announced after the representative union has been determined. Delaying collective bargaining for such justifiable cause is not unfair labor practice.
Once a bargaining request from the representative union is made, companies should discuss bargaining schedules, etc. However, the union sometimes pressures management by complaining about unfair labor practice if management does not immediately respond to the union’s written request with a fixed date and time for collective bargaining.
Nonetheless, bargaining schedules etc. are determined through consultation between labor and management. Not responding to the request itself is not necessarily an unfair labor practice.
Prior to the actual bargaining process, companies are advised to establish basic principles, such as the period between each bargaining session, the date and time, locations, bargaining agents, etc. Entering into collective bargaining without these preparatory steps can lead to confusion throughout the whole bargaining process. Bargaining agents could be arbitrarily replaced, or repetitive bargaining requests made.
Rules and principles of collective bargaining can be decided through consultation between management and the union. The bargaining cycle and timing need to be determined after considering relevant factors. Too prolonged or too frequent collective bargaining sessions make it difficult to negotiate effectively, and therefore such practices need to be avoided.
When it comes to venue, dauntingly large places which hamper reasonable bargaining processes need to be avoided. Also, as too many bargaining members can hamper proceedings, it is recommended that a reasonable and consistent number from both management and the union participate in the process.
Sometimes, trade unions insist that the employer’s authority to engage in collective bargaining may not be delegated to others, and that the CEO must participate. However, it is legally permissible to delegate such authority and duty. It is totally at the CEO’s discretion whether to directly engage in collective bargaining or not.
Better to discuss the overall list of proposals from the union at once, and not make a draft agreement prior to negotiations.
Newly-established unions used to make a draft agreement and demand that it be agreedby the employer before starting the collective bargaining process. A draft agreement is normally about matters such as the settlement of delayed wage payments, paid time off, wage payment for union representatives engaging in collective bargaining, and check-off of union membership fees, etc.
Such a list of requests constitutes key issues in collective bargaining. The employer therefore needs to make it clear that the items in the union’s draft agreement should be discussed during the collective bargaining, together with other bargaining items.
When a union is newly-established a conflict of interest between the union and the employer may arise due to lack of experience and knowledge of the rules about collective bargaining. An emotional response or reaction could be cited as unfair labor practice at a later date.
However, if the employer turns a blind eye to excessive or unreasonable demands from the union during collective bargaining for fear of trouble such as complaints of unfair labor practices, the wrong practices and rules could become deeply entrenched. Employers have to keep in mind that an assertive attitude that respects the law and principles are a foundation of the establishment of rational labor relations in the long term.