The so-called anonymous trade unions bring in practice a number of friction surfaces and problems associated with the interpretation of the legal regulation of several aspects of the relationship between the employer and the trade union.
She is a member of the Czech association of lawyers specializing in labor law CzELA Mgr. Veronika Bočanová, therefore decided to adopt an expert opinion regarding the interpretation of two provisions of the Labor Code, which are related to the activities of anonymous trade unions and in practice bring the most question marks - specifically § 277 (providing funds for the activities of a trade union organization) and § 61, paragraph 2 (termination of an employment relationship union official).
Opinion of CzELA
The new phenomenon of emerging anonymous trade unions represents a current topic in practice, which is associated with numerous practical and interpretive problems.
Anonymous trade unions formally present themselves to employers as representatives of employees, but in fact they refuse to carry out their activities directly with the employer on the grounds that they are anonymous, and therefore the fulfillment of information, consultation and other obligations towards employees at the employer's workplaces would allegedly violate the anonymity of their members. In addition, employers invoice considerable sums for their (often only external and undocumented) activities. The activities of these trade unions therefore give the impression that their real purpose is not to protect the rights of employees, but rather to gain their own financial benefit, possibly to gain access to the personal data of employees, etc. Anonymous trade unions do not fundamentally disclose information about the members of their bodies to the employer, so that the employer ratio of resignations or immediate terminations, he was never sure whether he was firing a union committee member or not. In this context, CzELA decided to adopt a position regarding the interpretation of two legal provisions that are related to the above-mentioned areas - they are § 277 and § 61, paragraph 2 of the Labor Code.
Pprovision of funds for activities frombororganizations
According to § 277 of the Labor Code, "the employer is obliged, at his own expense, to create the conditions for the proper performance of their activities for the employee representatives, in particular to provide them with rooms with the necessary equipment to a reasonable extent according to their operational capabilities, to cover the necessary costs of maintenance and technical operation and the costs of the necessary documents ".
In our opinion, the cited provision cannot be interpreted in such a way as to encourage the misuse of (fictitious) union activity for the mere creation of profit. In the case of unilateral invoicing by the trade union, without substantiating the amount and necessity of the claimed expenses, the employer cannot be placed in the role of a passive payer of the requested claims, the adequacy or justification of which cannot be verified.
As is clear from the diction and meaning of the above provision of the Labor Code, its aim is to enable trade unions carry out their proper activities, the content and scope of which are generally determined by the Labor Code and related legal regulations – these are inspections of safety and health protection at work, investigations into the causes of occupational accidents, negotiations with the employer within the framework of collective bargaining and the fulfillment of negotiation and information obligations, as well as the granting of prior consent or joint decision-making, whereas, by the nature of the matter, this primarily occurs at the employer's workplace or in cooperation with his employees.
We are of the opinion that e.g. the following activities no longer fall under this range of regular activities, which the employer should cover at its own expense to the trade unions:
- international cooperation of trade unions;
- trade union communication externally with the public;
- the activity of the reminder point of the state administration;
- legal analyses;
- marketing activity;
- labor law consultancy, etc.
In practice, these "additional activities" are usually carried out by central trade unions, which finance this "higher service" as an added value and benefit of trade union association from the membership fees of their members, similarly to the way they also pay for any remuneration to their officials, collaborating external consultants, etc. in this way.
In the event that the trade union unilaterally invoices the employer for these other activities, we are convinced that the employer is not obliged to pay them, as the Labor Code does not consider this activity as an activity carried out by the trade union at the employer. This does not exclude situations where the employer has expressly agreed with the trade union on the reimbursement of these above-standard activities in a collective or other agreement. Even in such cases, however, the trade union should be able to prove the legitimacy and specific content of the individual invoiced activities (from our experience, these are listed very generally on the invoices of anonymous trade unions). In fact, under "international cooperation" one can imagine both plane tickets to Brussels to visit a sister trade union organization, as well as, for example, joint European projects, etc.
A more complicated situation arises, okd any agreement specifying § 277 of the Labor Code between the social partners has not been concluded or it is impossible to reach it. Even in such a case, the employer (to a reasonable extent and taking into account the factors listed below) has a legal obligation to provide the trade union with at least a certain basic minimum that will enable it to properly fulfill its legal obligations.
The basic minimum to which the trade union is entitled in our opinion, it consists in providing, or enable use:
- rooms for carrying out meeting activities (at least in the form of the possibility of booking a conference room or canteen, in which chairs should be available);
- bulletin boards;
- lockable boxes for the purpose of delivering documents at the employer's headquarters,
- lockable cabinets for the purpose of safe storage of documents (if interested);
- internet access;
- access to a fixed telephone line;
- access to a printer and scanner, all at the employer's expense.
Taking into account the judgment of the Supreme Court of the Czech Republic dated January 28, 2013, file no. Stamp No. 21 Cdo 974/2012, this minimum can be further discounted in exceptional cases when, for example, a trade union does not actually carry out its activities for a long time and/or has a very low number of members, or is not a representative representative of employees for any other reasons. The amount of the proposed minimum may also vary depending on the nature of the employer - if, for example, all employees work from home, the employer understandably does not have any meeting rooms available, if the employer does not have an internet connection, it would be unreasonable to require the employer to introduced only for the needs of the trade union. This is also confirmed by Article 2 of the Convention of the International Labor Organization No. 135, on the protection of representatives in the company and the reliefs to be provided to them, from 1971, according to which, when providing the material background of trade unions, it is necessary to take into account the "needs, size and possibilities of the relevant enterprise". Other factors that must be taken into account are described in the already mentioned judgment of the Supreme Court of the Czech Republic (file no. 21 Cdo 974/2012), which, in addition to the already mentioned number of members, the degree of activity of the trade union at the employer, its participation in labor relations and popularity for employees who are not unionized, he recommends also taking into account the real needs of a specific trade union in its activities at the employer, the real purpose for which it was founded and the extent to which it is dependent on the creation of conditions by the employer. It can be assumed, for example, that a trade union with sufficient financial resources will not even require many of the above-mentioned items from the employer.
All items exceeding the above minimum are subject to agreement and cannot be unilaterally enforced on the employer. In a situation where the employer offers the trade union premises directly at the workplace and the trade union expressly rejects them, the employer is not obliged, for example, to reimburse the trade union for office rental invoices outside the employer's workplace. In other words, a trade union cannot argue § 277 of the Labor Code in an attempt to re-invoice the employer for the costs of services and products that it purchased on the commercial market at its discretion, even though the employer was able and willing to provide it with a sufficient and cheaper alternative for it.
Membership in a trade union committee
According to § 61, paragraph 2 of the Labor Code, it is possible to give notice of employment to a member of a trade union body/immediate termination of employment only after the employer has asked the trade union for its consent to this step. If the trade union denies its consent in writing to the employer within a period of 15 days, the notice/immediate termination of employment of a trade union official is invalid according to Section 61, paragraph 4 of the Labor Code, unless the employer, after taking into account other factors, cannot fairly be required to continue to employ this employee.
The problem arises in the case of anonymous trade unions, which, with some exceptions, do not disclose the names of their officials to the employer, and whose statutes in some cases allow employees to be appointed to the committee very quickly. Trade unions can abuse this procedure and promise employees that they will be immediately co-opted into the committee in the event that their employment is threatened. In our opinion, this procedure is in direct contradiction to the meaning of the increased legal protection of trade union officials and is therefore a circumvention of the law. At the same time, such a procedure puts the employer in an unsolvable situation, since the employer is not, according to § 316 paragraph 4 letter e) of the Labor Code is authorized to request information about the membership of employees in a trade union organization and is therefore not able (or authorized) to actively find out whether or not the dismissed employee is a trade union official.
The Supreme Court of the Czech Republic also expressed itself in this sense in its current judgment of 27 August 8, file no. no. 2019 Cdo 21/641, which deals with the fulfillment of the condition that at least 2018 members of the trade union are employed by the employer in order for the trade union to work for the employer in the sense of § 3, paragraph 286 of the Labor Code. The Supreme Court states in it that "the meaning and purpose of the legal regulation of the position of a trade union in labor law relations is not for the employer to search for whether such a trade union is active in his company and to investigate the facts about its operation". The Supreme Court expressly adds to the obligation of a trade union to prove its existence that "the legislation in this way seeks to remove legal uncertainty regarding the operation of a trade union at an employer so that there are no situations where the employer learns only afterwards that the trade union operates, and when for this reason alone he did not fulfill his obligations towards her (e.g. he did not respect the increased protection of trade union officials according to the provisions of § 3, paragraph 61 of the Labor Act)".
It is therefore purely in the interest of the trade union that the employer has up-to-date information about the members of its committee, and thus has the obligation to ask the trade union in these cases for its consent to the termination of the given person's employment. If the trade union does not inform the employer about the members of its committee, it creates obstacles for the employer to fulfill its legal obligations.
The purpose of the discussed Section 61, paragraphs 2 and 4 of the Labor Code is to provide protection to persons who are actually engaged with the employer and may therefore become a "thorn in the side" of the employer, not to a person whom the employer does not even know is a union official and who (in the case of the immediately preceding co-optation) never actually did anything for the trade union. In addition, the employee should be alert when handing in the notice/immediate cancellation and inform the employer of his membership in the committee, otherwise silence is also to his detriment. In contrast to an objective fact in the form of, for example, pregnancy, when the employee is protected even if she does not know about her pregnancy, it can be assumed that the union official is aware of his function and related rights and obligations. If the employer does not know the names of the members of the trade union committee and cannot clearly infer them even from the circumstances (for example, a certain person has been acting on behalf of the trade union organization for a long time towards the employer), in our opinion, these persons do not enjoy legal protection according to § 61 paragraphs 2 and 4 of the Labor Code .
The authors of this opinion conclude by pointing out that this is only their non-binding legal opinion. The aim of this opinion is to emphasize that benefits provided under § 277 of the Labor Code should (with the possible exception of the minimum described above) always be the subject of an agreement between social partners, not a unilateral dictate of a trade union and/or a means of generating profit by legal entities that are trade unions by name only. Similarly, § 61 paragraphs 2 and 4 of the Labor Code do not serve to protect persons who, as protection before the end of their employment relationship, ask a trade union to be co-opted as a member of the committee only in an attempt to abuse this provision and make it impossible for the employer to unilaterally terminate the employment relationship.
The authors of this opinion believe that the above conclusions will (continue to) be confirmed by court jurisprudence.
Czech Employment Lawyers Association, zs
