Navigating Trade Union Memberships: Legal Insights for Collective Bargaining

In the realm of trade union practice, a pertinent question arises: Can employees belong to a trade union operating in a different collective bargaining sector from their employer? This query carries significant implications for collective bargaining dynamics.

In recent legal practice, we have observed a recurring, at least questionable, situation relating to the membership of employees in certain bargaining sectors in trade unions set up by employers operating in other sectors. For example, employees of an employer in the mining sector join a trade union set up in the transport bargaining sector. This practice raises important questions about the validity and effectiveness of collective bargaining.

Trade Union Constitution – What the Law Says

 Law No 362/2022 on Social Dialogue specifies that at least 10 employees/workers from the same unit or at least 20 employees/workers from different units of the same collective bargaining sector are required to form a trade union.

The same law defines a unit as a form of organization of an employer, operating as an enterprise, company, cooperative organization, society, public institution/authority or any other form of organization, according to the law, with legal personality, in which employees/workers perform work in a specific field of activity.

 According to the Order of the Ministry of Labor and Social Solidarity No 2311/2023, the classification of the unit in a collective bargaining sector is carried out according to the main NACE activity code.

The above three provisions lead to the conclusion that a trade union set up at the level of a unit can only have members from the same unit or from units operating in the same collective bargaining sector, i.e. with the same main NACE activity code. A conclusion to the contrary would be unfounded.

Non-Compliant Practices

 In practice, however, we have observed situations where workers of one employer become members of a trade union set up at the level of a unit operating in another bargaining sector. Moreover, the trade union in question tries to negotiate the collective bargaining agreement (CBA) applicable to the unit from which its new members come through the representative federation at the level of the collective bargaining sector to which that unit does NOT belong.

Hypothetical example: The employees of the Alfa Company working in the collective bargaining sector Publishing, printing and distribution services decide to join the Beta Trade Union set up at the level of the Beta Company activating in the collective bargaining sector Culture, and, after joining, the Beta Trade Union initiates the negotiation of the CBA at the level of the Alfa unit through the representative federation at the level of the collective bargaining sector Culture.

 Collective Bargaining Agreement Negotiation

 The law on social dialogue expressly states that the CBA is negotiated at unit level:

• by legally constituted and representative trade union organizations at unit level,
• by the trade union federations representative at the level of the collective bargaining sector, at the request and on the basis of the mandate of the non-representative trade unions in the unit affiliated to them, if there are no trade union organizations representing employees/workers,
• by non-representative trade union federations in the collective bargaining sector, which are members of nationally representative confederations, at the request and on the basis of a mandate from their affiliated non-representative trade unions, where there are no organizations representing employees/workers,
• by all non-representative trade unions in the unit, where there are no organizations representing employees/workers.

The provisions cited impose two cumulative conditions for participation in bargaining by a trade union federation:

1. representativeness of the trade union federation at the level of the collective bargaining sector to which the unit at whose level the CBA negotiation has been initiated belongs, and
2. the mandate received from the non-representative trade union/trade unions in the unit affiliated to them.

Collective Bargaining Validity and Effectiveness

In the hypothetical example given above neither of the two conditions is met. The federation called upon by the Beta Trade Union to negotiate the CBA at the level of the Alfa Company is not representative at the level of the bargaining sector where the company operates. In addition, the mandate received by the trade union federation from the Beta Trade Union is not valid since that trade union operates in a different bargaining sector from the one to which the Alfa Company at whose level the CBA negotiations have been initiated belongs.

To argue the opposite of the above is to agree (a) that, for example, the trade union federation representative at the level of the collective bargaining sector Energy, Oil and Gas and Energy Mining will be able to negotiate the CBA at the level of a unit in the Air Transport and Related Services sector, which would lead to the conclusion that the separate regulation of collective bargaining sectors is of no practical relevance and that (b) a trade union constituted at the level of a unit in the Post and Courier sector can admit as members and represent in the negotiation of CBAs employees of units in any other sector/sectors, which would make the regulation of the stratification of collective trade union organizations into federations (constituted at the level of one sector of activity) and confederations operating at the level of several sectors pointless.

Drawing Informed Conclusions

The complexities of trade union memberships and collective bargaining legality underscore the importance of adherence to established laws and regulations. As readers, it is imperative to evaluate these insights and draw informed conclusions regarding their implications for collective bargaining practices.