The Supreme Administrative Court rendered the 109-Pan-421 Decision of August 6, 2020 (hereinafter, the “Decision”), holding an enterprise that has changed the terms of labor for its employees without negotiating with the labor union has in fact unilaterally weakened the terms of work, and it cannot be determined that the enterprise has not engaged in an unfair labor practice because the negotiation is still ongoing and the enterprise and the labor union can still agree to favorable terms.
According to the facts underlying this Decision, the Intervenor (Company A’s corporate labor union) filed a complaint with the Appellee (the Ministry of Labor) on the ground that the Appellant (Company A) had unilaterally modified its Rules for the Application for Preferential Air Tickets, which constitutes an unfair labor practice under Article 35, Paragraph 1, Subparagraph 5 of the Labor Union Law. The Appellee subsequently held that the Appellant’s act constituted an unfair labor practice under Article 35, Paragraph 1, Subparagraph 5 of the Labor Union Law (hereinafter, the “Original Disposition”). Dissatisfied, the Appellant brought an administrative action, seeking to set aside the Original Disposition. The original decision was subsequently rendered to dismiss the administrative action. Still dissatisfied, the Appellant appealed.
According to the Decision, Article 21 of the Collective Agreement Law provides: “If the term of a collective agreement has expired and a new collective agreement is not yet executed, the stipulations concerning working conditions in the original collective agreement shall continue to be the contents of the labor contract between the interested parties to the collective agreement before a new labor contract is concluded.” In addition, Article 77 of the collective agreement between the Appellant and the Intervenor contains similar a similar provision.
This Decision further stated that, pursuant to Article 21 of the Collective Agreement Law and Article 77 of the collective agreement, the Appellant and the Intervenor were required to discuss the renewal of the agreement after the original collective agreement expires, and the stipulations on the labor contract under the original collective agreement would continue to serve as the labor contract between the parties to the collective agreement before the new collective agreement is otherwise concluded. Article 62 of the collective agreement provides: “Party B’s members may apply to Party A for preferential air tickets in accordance with the qualifications and procedures set forth in the Rules for the Application for Preferential Air Tickets. In case of any amendment to the Rules for the Application for Preferential Air Tickets that affects the rights and interests of the employees, Party B’s representatives will be invited to participate in the discussion.” Therefore, modifying the Rules for the Application for Preferential Air Tickets has been considered by the Appellant and the Intervenor to be important to the rights and interests of the workers and included as part of the covenants in the collective agreement and of the terms of labor. In addition, Article 17 of the collective agreement provides that in the event the Appellant changes and discuss about the terms of labor or work environment, the Intervenor should be invited to send people to participate in the negotiation. Therefore, amending the Rules for the Application for Preferential Air Tickets certainly requires a negotiation with the Intervenor pursuant to the agreement. The Appellant changed the above contents, resulting in relatively unfavorable results to its employees’ terms of labor and failed to negotiate with the Intervenor pursuant to the original collective agreement. Therefore, this was unfair labor practice that weakened the labor union by improperly impacting and undermining the activities of the labor union. The Appellant’s failure to negotiate with the Intervenor before amending the rules for preferential air tickets can be considered to unilaterally reduce the Intervenor’s terms of work. Therefore, it cannot be concluded that the Appellant did not engage in an unfair labor practice on the ground that its collective agreement was not interrupted and that the Appellant and the Intervenor could still agree to more favorable terms in a future collective agreement.
Therefore, the Original Disposition, which concluded that the Appellant’s unilateral modification of the rules for preferential air tickets constituted an unfair labor practice under Article 35, Paragraph 1, Subparagraph 5 of the Labor Union Law, is not unlawful.