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Resolution of collective disputes
A collective agreement is a consensual instrument that serves to regulate the rights of employees in labour relations, as well as the rights or obligations of the parties to the agreement, i.e. most often the employer on the one hand and the trade union on the other. However, provisions of the collective agreement that impose obligations on employees or curtail their rights under the Labour Code are disregarded (they are treated as if they do not exist). A collective agreement can be concluded by one or more employers or one or more employers’ organisations with one or more trade unions (see Negotiations with trade unions).
When negotiating a collective agreement, disputes may arise over its conclusion and later over the fulfilment of obligations arising therefrom. As for disputes regarding the fulfilment of obligations that do not give rise to claims for individual employees, these are resolved by mediators and arbitrators. This concerns disputes between the parties to the collective agreement, i.e. between trade unions and employers (or employers’ organisations) arising from the conclusion of the agreement or the obligations arising for them from the collective agreement. As for obligations that give rise to rights for individual employees, they are exercised and enforced in the same way as obligations under an employment contract, an agreement to perform work or an agreement to complete a job. Individual affected employees are the ones responsible for the exercise of these rights.
Dispute resolution process
First stage: proceedings before a mediator
If the parties fail to agree on the content of or amendment to the collective agreement or are in dispute over the fulfilment of obligations arising therefrom, the first stage of collective dispute resolution is reached. This stage is both preferred and mandatory for the further procedure and is referred to as the proceedings before a mediator. The parties may jointly appoint any legally competent individual or legal entity who has their full confidence and the necessary skills to resolve the dispute as a mediator. The proceedings before a mediator are initiated upon acceptance of the request by the mediator. Otherwise, i.e. if the parties have not agreed on the person of the mediator, the Ministry of Labour and Social Affairs (hereinafter the “Ministry”) will appoint the mediator, but only upon the proposal of one of the parties and from the list of mediators and arbitrators maintained by the Ministry. The proceedings are initiated upon the delivery of the decision on the mediator’s appointment.
At this stage, the parties seek to reach an amicable settlement and, therefore, proceed in cooperation with the mediator. However, the mediator may not decide the dispute but merely communicates the proposed solution in writing to the parties who then decide whether or not to accept the solution. If the dispute is not resolved within 20 days (or such other time as the parties may agree) of the date of receipt of the request for mediation or the date of receipt of the decision to appoint a mediator, the mediation proceedings will be deemed to have failed and may be followed by a request to the Ministry to appoint a new mediator or proceedings before an arbitrator.
Second stage: proceedings before an arbitrator
These proceedings differ from the previous type primarily in that the arbitrator does not merely propose a solution but has the power to decide the dispute directly. The proceedings are initiated upon the receipt of a request submitted by the parties to the collective agreement to the arbitrator to decide the dispute. Only a legally competent citizen registered in the list of mediators and arbitrators maintained by the Ministry may be appointed as an arbitrator. If the parties fail to agree and if it is a dispute over the conclusion of a collective agreement arising in the workplace where strikes are prohibited or a dispute over the fulfilment of obligations arising from the collective agreement, the same procedure can be applied as in the case of a mediator, i.e. the arbitrator is appointed by the Ministry and the proceedings are initiated upon the delivery of the Ministry’s decision to the arbitrator. At the same time, it should be emphasised that it is not permissible for the same person to act as both mediator and arbitrator in the same collective dispute. At this stage, the parties are obliged to proceed in cooperation with the arbitrator. Once the arbitrator renders an award and delivers it in writing to the parties within fifteen days of the commencement of the proceedings, the collective agreement is thereby concluded. An appeal may be brought before a court only if the arbitrator’s award concerns a dispute over the performance of a collective agreement. In this case, either party may file a motion to annul or alter the award of the arbitrator within fifteen days of its delivery, which will be decided by the competent regional court by a ruling; an appeal against such ruling or renewal of proceedings are inadmissible. If the court annuls the arbitrator’s award, the arbitrator is then bound by the court’s legal opinion. Where no motion to annul or alter the arbitrator’s award is filed or where the proceedings have been discontinued, the arbitrator’s award on the performance of obligations under the collective agreement becomes legally effective upon delivery and, as such, is judicially enforceable.
Strike
A strike is one of the oldest and relatively widely used instruments to promote the collective interests of employees (the counterweight is a lockout, which can be used by the employer). A strike may be declared as a last resort in a dispute over the conclusion of a collective agreement if the collective agreement is concluded even after proceedings before a mediator and the parties do not apply for an arbitrator’s award on their dispute. A strike is a total or partial interruption of work by employees (however, it is not an interruption of work due to downtime and other obstacles to work, see Obstacles to work). A strike in a dispute over the conclusion of an enterprise collective agreement is generally declared and its commencement is decided by the competent trade union if at least two-thirds of the employer’s employees participating in the voting on the strike to whom the agreement is to apply agree with the strike, provided that at least one-half of all the employer’s employees to whom the agreement is to apply participated in the voting. The trade union then notifies the employer of when the strike will take place, for what reasons and what its purpose is, as well as of the number of employees who will take part in it. Participation in a strike is voluntary and no one may be forced to join it or prevented from joining it.
What issues do we typically handle for clients in relation to the resolution of collective disputes?
- How to enter into a collective agreement?
- What is the procedure for handling collective disputes?
- How to designate a mediator to resolve a collective dispute?
- How do I appeal to court if I disagree with the arbitrator’s award in a collective dispute?
- How and when can a strike be called?
- Assessment of employees’ rights to strike
- Representation of the strike committee
- How to proceed during a strike?
- How to exercise the right to lockout?
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