On March 1, 2021, a comprehensive amendment to the Labor Code came into effect, introducing several changes to the regulation of labor relations. In this article, we would like to clarify the new Section 230a, which addresses disputes regarding the activities of a trade union at an employer’s premises.
When does a dispute arise regarding the operation of a labor union?
The right of employees to organize in labor unions is a constitutionally guaranteed right. The right of employees to form labor unions is matched by the employer’s obligation to allow them to operate in the workplace. Since the amendment took effect (March 1, 2021),the employer is obligated to allow a trade union to operate at the workplace only if there are membersof that trade union among the employees in an employment relationship.
From a grammatical interpretation of the provision of Section 230(2) of the Labor Code (the highlighted portion of the new provision above), it can be inferred that to meet the newly introduced condition, it is not sufficient if there is only one member of the relevant trade union among the employees working for the employer (note: the extent of employment is not specified by law and is therefore not specifically required) is a member of the relevant trade union organization; rather, it should be sufficient if the trade union organization has two or more members who are simultaneously employed by the employer at which the trade union organization intends to establish its operations.
With this provision, the legislature responded to the fact that, in practice, trade unions often operated whose members had no relationship with the employer, were not employed by the employer, and thus the objective of such activity could not be the actual purpose of a trade union’s operation as presumed by law. In practice, we have encountered cases where the establishment of a trade union was abused solely for the purposes of individuals, without any connection to the employer. The aim of the amendment is to provide employers with protection and certainty that only trade unions that genuinely represent the interests of employees operate in their workplaces. We view this change very positively.
The amendment incorporated a new Section 230a into the Labor Code, which regulates the legal procedure in the event of a dispute over whether a trade union meets the above-mentioned criteria. Prior to the adoption of the amendment, the employer had no means available to determine whether a trade union actually represented its employees, since under the applicable legal framework, the list of trade union members is confidential and the employer has no right to request it.
A dispute regarding the operation of a trade union at an employer’s premises arises if the employer or the trade union operating at the employer’s premises has doubts as to whether there are members of the trade union among the employees in an employment relationship, provided that the trade union has informed the employer in writing of the commencement of its activities. The dispute shall be resolved by an arbitrator agreed upon by the parties to the dispute; otherwise, at the request of either party to the dispute, the Ministry of Labor shall appoint an arbitrator from the list of arbitrators it maintains pursuant to a special regulation.
A prerequisite for serving as an arbitrator is that the arbitrator agrees to accept the resolution of a dispute regarding the activities of a trade union organization at the employer’s premises.
Procedure for resolving a dispute regarding the operation of a trade union:
The arbitrator appointed by the parties to the dispute or by the Ministry of Labor shall notify the parties to the dispute and the employer (if the employer is not a party to the dispute) that he or she accepts the request to resolve the dispute regarding the operation of a trade union at the employer’s premises.
The arbitrator shall then set a deadline by which:
the employer is required to provide the arbitrator with a list of employees in an employment relationship,
the trade union is required to provide the arbitrator with a list of employees in an employment relationship with the employer who are its members, and at the same time to prove their membership in the trade union.
The parties to the dispute are also required to provide the arbitrator with any other necessary cooperation, and failure to do so shall be to the detriment of the party that failed to cooperate. The arbitrator is required to maintain confidentiality regarding facts learned during the resolution of the dispute.
The arbitrator should resolve the dispute within 30 days of accepting it.
Arbitrator’s fee:
An arbitrator who resolves a dispute regarding the activities of an employer’s trade union is entitled to a fee agreed upon by the parties to the dispute. If no such agreement is reached, the law provides that the arbitrator is entitled to a fee of 500 euros for resolving the dispute. The fee is paid to the arbitrator by the trade union if the arbitrator determines that there are no members of the trade union among the employees in an employment relationship. Conversely, if it is proven that the trade union meets the new criteria and represents the employer’s employees, the remuneration shall be paid by the employer or the trade union that initiated the dispute.
Consequences of the dispute:
For a period of 12 months from the date of notification that the trade union does not represent employees in an employment relationship, this trade union is not considered a trade union operating at the employer.
A trade union which, according to the arbitrator, does not have members among employees in an employment relationship may, once within 12 months from the date of such notification, request an arbitrator from the list of arbitrators maintained by the Ministry of Labor pursuant to a special regulation to reassess whether it has members among employees in an employment relationship. If the arbitrator accepts the request, they will resolve the dispute in the manner described above. The arbitrator is entitled to a fee of 1,000 euros for such an assessment, which is paid by the trade union organization.
The team of experts at the law firm Hronček & Partners, s. r. o. is ready to assist you in resolving issues related to collective labor relations. If you need advice or assistance with any labor law matter, please do not hesitate to contact us.
