June 2023
Elizabeth Pai and Weke Chen
A labor union signifies the implementation of employees’ solidarity right and involves a balance between the interests of employee and employer. Current laws and regulations provide certain protections for labor unions. Namely, employers would be sanctioned by the competent authority if they treat labor unions unfavorably or render unfair treatments in negotiations, and if they provide preferential treatment to specific labor unions without reasonable justification, they may be deemed to have violated the “neutrality obligation” by exerting control over labor unions.
This article considers the current situation of “multiple labor unions in the same enterprise,” defines the neutrality obligation of employers in practice, and enumerates the legal consequences when employers violate the neutrality obligation.
I. Potential multiple labor unions in the same enterprise
The legislation of enterprise unions in Taiwan adopts a “single union in single enterprise” principle. To wit, there should be only one enterprise union within the enterprise.[1] However, the organizational scope of enterprise unions includes “the same plant, the same business unit, or the same financial holding company group.” Therefore, from the perspective of the entire enterprise, there can still be two or more enterprise unions coexisting within the same enterprise or related enterprises. For example, according to the facts in the 110-Shang-321 Decision of the Supreme Administrative Court, Aerospace Industrial Development Corporation used to have the Enterprise Union of the Taichung City Aerospace Industrial Development Corporation, which was organized within the organizational scope of a business unit, and the Shalu Enterprise Union of Aerospace Industrial Development Corporation, which was organized within the scope of a plant. In addition, it is still possible to have “industrial unions”[2] organized by employees in related industries outside of enterprise entities and “professional unions”[3] organized by employees with related professional skills in the same municipalities under the direct jurisdiction of counties or cities, to potentially compete with enterprise unions for resources.
The “plant” is defined as a workplace having independent personnel administration, budgeting, and accounting, as well as the ability to handle factory registration, company registration, business registration, or commercial registration pursuant to law. Independent personnel administration, budgeting, and accounting should meet the following three criteria: (1) having the authority to decide on the recruitment or dismissal of the employees of the workplace; (2) preparing and implementing its own budget; and (3) establishing a separate accounting unit and maintaining accounting records to calculate profits and losses.[4] However, the broadness of the above-mentioned definition of a plant is linked to the ability of the employees to establish a labor union, and important matters such as the employees’ right of association should be stipulated by law or require clear authorization under the law. Since the definition of a plant in current Enforcement Rules of the Labor Union Act were found to lack clear authorization under the law and breach the principle of legal reservation under Article 23 of the Constitution, they will lose their effect no later than May 19, 2025.[5]
II. The neutrality obligation of employers towards labor unions
In a situation where multiple unions exist within the same enterprise or related enterprise, it is generally believed in practice that employers should maintain a neutral attitude towards all unions, equally acknowledging and respecting their right to solidarity. Employers must not suppress other unions by treating one union differently based on their nature, tendencies, or paths of union movement.[6] Otherwise, this may constitute an unfair labor practice of “improperly influencing or obstructing union organization or activities” under the Labor Union Act.[7]
An employer has various types of practices that may be regarded as a failure to observe the principle of neutrality, including facilitation measures for unions (such as deducting union dues, providing union affairs leave, offering union offices, etc.) and negotiation and interaction mechanisms between employees and employers (such as complaint meetings, negotiation meetings, etc.).[8] Practical examples are provided as follows:
(1) Failed to equally provide office space for multiple enterprise unions to use
Although employers do not have a statutory obligation to “provide office space for union use,” if an employer provides office space to one union within the company but refuses the request of another union to use an office, it may be regarded as having the intention to “weaken a particular union,” and this would constitute an unfair labor practice. In such cases, the employer is also required to provide another appropriate office space for another union to use with the specific conditions negotiated between the parties.[9]
(2) Ceased deduction of dues for a specific union by an employer to encourage participation in another union
An employer is required to forward the union dues to the enterprise union deducted from the employee’s wage since the day the employee joins such union.[10] However, in this specific case, the employer was deemed to have engaged in an unfair labor practice for ceasing the deduction of dues for Enterprise Union A for no reason and without any prior notice to Enterprise Union A while deducting dues, instead, the employer deducted dues for Enterprise Union B and Enterprise Union C. The employer was not only required by the court to deliver the dues the employer should have deducted for Enterprise Union A, but also was prohibited from ceasing the deduction of dues. In addition, the employer was required to report to the competent authority the status of dues deduction for those labor unions.[11]
(3) Failed to equally provide links to union websites on the company’s intranet portal
The employer provided a hyperlink to a specific union on the homepage of the company’s website but refused to provide hyperlinks to other unions. Therefore, it was concluded that the employer sought to lower the position of such unions among the employees, which constituted an unfair labor practice. The employer is obligated to add links to the websites of all the other unions.[12]
(4) Failed to grant union affairs leave equally
The employer’s failure to grant union affairs leave equally to employees who participate in different industrial unions and union federations constitutes an unfair labor practice.[13]
III. Consequences of employers being considered breaching neutrality obligation
If an employer breaches its neutrality obligation, it will be deemed to engage in an unfair labor practice of “improperly affecting, undermining, or restricting the establishment, organization, or activities of a labor union.” If the central competent authority (i.e., the Ministry of Labor)[14] determines, through a ruling under the Act for Settlement of Employee-Employer Disputes, that the employer has engaged in the above-mentioned conduct, the employer will not only be ordered to fulfill the obligation to treat labor unions fairly by “engaging or not engaging in a certain act,”[15] but also may be fined NT$100,000 to NT$500,000 by the central competent authority with publishing the name of the employer, the name of its legal representative, the date of disposition, the provisions breached, and the fine amount.[16]
IV. Conclusions
An employer should understand the situation of employees’ participation in various unions and be mindful of maintaining neutrality. In particular, when the relationship between the employer and a specific union is relatively close, the employer should avoid irrational differentiation in treatment, which could be regarded as unfair labor practice for intending to weaken a particular union.
[1] Article 9, Paragraph 1 of the Article Union Act.
[2] Article 6, Paragraph 1, Subparagraph 2 of the Labor Union Act.
[3] Article 6, Paragraph 1, Subparagraph 2 of the Labor Union Act, and Paragraph 2 of the same article.
[4] Article 2, Paragraphs 1 and 2 of the Enforcement Rules of the Labor Union Act.
[5] See the 112-Xian-Pan-7 Decision of the Constitutional Court.
[6] The 101-Su-1264 Decision of the Taipei High Administrative Court, which was upheld by the 102-Pan-563 Decision of the Supreme Administrative Court.
[7] Article 35, Paragraph 1, Subparagraph 5 of the Labor Union Act.
[8] The 103-Lao-Cai-23 Decision of 2014 from the Ministry of Labor.
[9] The decision was upheld by the 105-Pan-389 Decision of the Supreme Administrative Court.
[10] Article 28, Paragraph 3 of the Labor Union Act.
[11] The 101-Su-1264 Decision of the Taipei High Administrative Court, which was upheld by the 102-Pan-563 Decision of the Supreme Administrative Court.
[12] The decision was upheld by the 105-Pan-389 Decision of the Supreme Administrative Court.
[13] The decision was upheld by the 109-Pan-306 Decision of the Supreme Administrative Court.
[14] The forepart of Article 4 of the Act for Settlement of Employee-Employer Disputes and Article 51 of the same law, to which Article 39 applies mutatis mutandis.
[15] Article 51, Paragraphs 1 and 2 of the Act for Settlement of Employee-Employer Disputes.
[16] Articles 35 and 45 of the Labor Union Act.
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