Problems of the Status of a Representative Trade Union
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Abstract
The article analyses the status of a representative trade union. First of all, the principle of equality of a representative trade union and a trade union is analysed in the article. The principle of trade unions’ equality can be derived from the ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise and the ILO Convention No. 144 concerning Tripartite Consultations to Promote the Implementation of International Labour Standards. A principle of trade unions’ equality is established in Article 50 of the Constitution of the Republic of Lithuania and reiterated in Article 3 (1) of the Law on Trade Unions. In the ILO Constitution as well as in ILO conventions the definition of a “representative organisation” is used. The principle of equality of representative trade unions is not explained in the ILO legal acts concerned. However, it may be concluded from the fact that both definitions are mentioned in the same legal acts that they do not contradict each other, but – on the contrary– they are complementary.
It may be concluded from the analysis of foreign practice, that an institution of a representative trade union is a certain conflict of law rule, which allows identifying the competent trade union which is able to act on behalf of workers. Several methods of representation criteria can be found in other countries. Firstly, representation criteria may be laid down in a law, like in France. The same method is applied when relationships of representation are regulated by by-laws or inferior legal power, for instance in Poland, by the Decision of the Council of Ministers of 15 February 1994. Secondly, the issue of representation may be regulated not only by a legal act, but by a general tripartite agreement (among a trade union, employers’ organisation and a Government), which is concluded by social partners only. The ILO Committee of Freedom of Association has acknowledged a definition of representation and an establishment of a representative trade union selection criterion was left to the national legal provisions; it only requires the criteria to be set in advance and be objective. A status of a representative trade union is valid in collective labour relations only. A specific status of such trade union is based on certain features, making it distinct from other trade unions without a status of a representative organisation. Such features are detailed in the provisions of collective labour law and are referred to as representation criteria in legal literature. Taking into account the practice of different countries, the following criteria could be mentioned: i. e. criteria of nomination, quantity, quality, functions, attribution and ideology, etc.
This article further analyses issues concerning the status of a representative trade union in Lithuania. Prof. I. Nekrošius and dr. T. Davulis allege that the Constitutional principle of trade unions’ equality should not be considered absolute, without denying equality of trade unions, because every trade union would be able to use additional rights ant powers acquired after fulfilling requirements established by law. However, the concept of a representative trade union is unknown to the Labour Code; although such legal concept is not used at all, certain signs of regulation of trade union pluralism may be traced. For example, according to Article 60 (3) of the Labour Code, if trade unions fail to agree on a formation of a joint representation for collective bargaining, a staff meeting (conference) shall decide upon the representation and that a “representative trade union in the company” is identified by an appointment. Besides, the Labour Code fails to shape trade union pluralism in any higher than company level. The grounds of representation during negotiations for national, sectoral or territorial level collective agreements are only established in the Statutes of the trade unions of a respective level. It is an evident deficiency of legal regulation, causing collision in such situations when there would be several trade unions in a certain territory or sector, being unable to cooperate. Such difficulties could be avoided, if the Labour Code were supplemented with a provision, establishing that in case of failure to agree, such trade union or an association of trade unions shall be entitled to conclude a collective agreement of higher than company level, which has more sub-divisions of an association of trade unions in respective enterprises. The trade union supported by a majority of staff should be entitled to collective bargaining and conclusion of an enterprise level collective agreement, i. e. the present regulation according to the Labour Code should remain. An additional concept of a “representative trade union” should be added to the Labour Code.
It may be concluded from the analysis of foreign practice, that an institution of a representative trade union is a certain conflict of law rule, which allows identifying the competent trade union which is able to act on behalf of workers. Several methods of representation criteria can be found in other countries. Firstly, representation criteria may be laid down in a law, like in France. The same method is applied when relationships of representation are regulated by by-laws or inferior legal power, for instance in Poland, by the Decision of the Council of Ministers of 15 February 1994. Secondly, the issue of representation may be regulated not only by a legal act, but by a general tripartite agreement (among a trade union, employers’ organisation and a Government), which is concluded by social partners only. The ILO Committee of Freedom of Association has acknowledged a definition of representation and an establishment of a representative trade union selection criterion was left to the national legal provisions; it only requires the criteria to be set in advance and be objective. A status of a representative trade union is valid in collective labour relations only. A specific status of such trade union is based on certain features, making it distinct from other trade unions without a status of a representative organisation. Such features are detailed in the provisions of collective labour law and are referred to as representation criteria in legal literature. Taking into account the practice of different countries, the following criteria could be mentioned: i. e. criteria of nomination, quantity, quality, functions, attribution and ideology, etc.
This article further analyses issues concerning the status of a representative trade union in Lithuania. Prof. I. Nekrošius and dr. T. Davulis allege that the Constitutional principle of trade unions’ equality should not be considered absolute, without denying equality of trade unions, because every trade union would be able to use additional rights ant powers acquired after fulfilling requirements established by law. However, the concept of a representative trade union is unknown to the Labour Code; although such legal concept is not used at all, certain signs of regulation of trade union pluralism may be traced. For example, according to Article 60 (3) of the Labour Code, if trade unions fail to agree on a formation of a joint representation for collective bargaining, a staff meeting (conference) shall decide upon the representation and that a “representative trade union in the company” is identified by an appointment. Besides, the Labour Code fails to shape trade union pluralism in any higher than company level. The grounds of representation during negotiations for national, sectoral or territorial level collective agreements are only established in the Statutes of the trade unions of a respective level. It is an evident deficiency of legal regulation, causing collision in such situations when there would be several trade unions in a certain territory or sector, being unable to cooperate. Such difficulties could be avoided, if the Labour Code were supplemented with a provision, establishing that in case of failure to agree, such trade union or an association of trade unions shall be entitled to conclude a collective agreement of higher than company level, which has more sub-divisions of an association of trade unions in respective enterprises. The trade union supported by a majority of staff should be entitled to collective bargaining and conclusion of an enterprise level collective agreement, i. e. the present regulation according to the Labour Code should remain. An additional concept of a “representative trade union” should be added to the Labour Code.
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