Theme 4. Legal foundations of social partnership. Collective (bargaining) agreement

Methodical recommendations for independent work

Collective-contractual regulation of labour has deep history and collective bargaining agreement – it is a contract between employer and labour union regulating employment conditions, wages, benefits and grievances (also termed union contract, collective-labour agreement, and trade agreement). Collective bargaining agreement (contract) it is a by-law, an act of social partnership on the level of organisation or enterprise between employees and an employer.

There is no legal definition of collective bargaining contract in Ukrainian legislation. So, it is useful for students to pay attention to different definitions of this term in legal literature. The term «collective labour contract» can be used in three meanings: as an institution of Labour law, as legal act and as the act of social partnership. Collective labour contract includes attributes of a contract and of a regulatory legal act. Today it is the most important legal act that specifies the conditions of labour, social guarantees for employees.

Collective bargaining contract should be concluded for accommodation of interests of the employees from one side and employer from the other side. At a time of bargaining parties to it make commitments on the legal grounds with intent to adjust production relations, labour and socio-economic relations, to accommodate the interests of the employees and employer.

It is advisable to draw attention on the circumstance that collective labour contracts can be concluded in all enterprise, establishments and organisations irrespective from the pattern of ownership which has such attributes:

– uses hired labour;

– has the status of legal entity.

The absence at least one of these features makes concluding of collective bargaining contract impossible.

One should draw attention that collective contract can be concluded in business units of organisation (branch offices, subdivision etc.) but only within the competence of these units.

Parties to the collective labour contract are an owner or body authorized by him (it) from one side and one or few trade union bodies or other bodies empowered to represent labour collective and in case of absence of such bodies – employees’ representatives elected and empowered by labour collective from the other side.

One should learn the notion of collective bargaining contract content and structure and interrelation of the structure and content of collective bargaining contract. The content of collective bargaining contract is its terms that should regulate social and labour relations in certain organisation. Provisions of collective labour contracts can be divided on three types: normative, obligatory and organizational.

Students should specially draw attention on the main requirement of the collective labour contract that proclaims that its provision can only improve working conditions for employees as compared with the active legislation and terms that make worse such conditions are annulled according to the Law (article 5).

Decision on the necessity of collective bargaining contract concluding in certain organisation should be made by the parties of collective-contractual regulation of labour. Any of these parties can be an initiator of collective bargaining. Every of parties should give written notice to the other party about the start of collective bargaining not earlier than three months before the end of the term of the collective labour contract or in terms, stipulated by these documents.

It is necessary to remember that according to the article 17 of the Labour Code in new enterprise or organisation collective labour contract can should be concluded on the initiative of one the parties in term of three months after state registration of such organisation if such registration is stipulated by law or after the decision on the initiation of an enterprise, establishment or organisation in case if state registration is not provided.

Signing of the collective bargaining contract is adjusted by the article 13 of the Law. Draft collective labour contract should be discussed in labour collective and then should be proposed for consideration of labour collective general meeting (or conference) (Staff Engagement Session). If general meeting (conference) of labour collective rejects an contract or its single provisions parties should resume bargaining for necessary decision making. This bargaining should not last more than 10 days. After that draft contract in its entirety should be proposed for consideration of labour collective general meeting (conference).

The signature of collective labour contract means the end of collective bargaining. Amendments to the collective bargaining contract can be made only during its effective period by mutual consent in order settled by collective contract.

Collective labour contract should be registered by local executive bodies.

Collective bargaining contract effective period does not stipulated by the legislation; it is specified as agreed by the parties. As a rule collective bargaining contracts are concluded for a term from one to three years.

Student should expose the interrelation between the local collective contract and collective agreements that are concluded on a higher level – General, industrial and territorial collective bargaining agreements. It is different legal acts distinct by the field of concluding, by content, by the terms of reference and by the procedure of registration.

Collective agreement in this meaning – it is legal act that is concluded between the social partners that includes obligations on setting of working conditions, engagement (employment) and social guarantees for employees of all state, branch of economy, region. Such agreements are also the form of social partnership and regulate relations of social partnership at a higher level. General collective labour agreement includes basic principles and norms of realisation of socio-economic policy and labour relations; industrial agreement establishes directions of socio-economic development of branch (particularly provides labour norming and remuneration of labour, level of engagement, social guarantees for the employees of a certain branch of economy); territorial agreement specifies condition of work and labour, social guarantees and benefits for employees within the limits of certain region). Such three types of collective agreements include recommendations and terms that should be taken into account while collective bargaining in certain enterprise.

Parties to collective labour agreements are specified in the article 3 of the Law of Ukraine «On collective agreements and contracts». Parties to a general agreement are: trade unions which united for collective bargaining conducting and general agreement concluding; owners or bodies authorised by them that united for collective bargaining conducting and general agreement concluding, in enterprises of which employed at least majority of all employees of the state.

Also students should draw attention to the parties of collective agreements on industrial and territorial level.

Students should learn the procedure of collective labour agreement concluding that is specified by articles 10 and 11 of the Law mentioned above. Collective bargaining goes before the collective agreement concluding. It can be started by the proposition of any of two parties. This right to start bargains is settled by the Law and is one of the most important guarantees of social partnership protecting.

Students should draw attention on the procedure of collective labour agreement signing. It should be signed by the entitled representatives of the parties not later than in 10 days after completion of collective bargaining. Agreement comes into effect upon signature or from the date specified in it. Industrial and territorial collective bargaining agreements should be registered in the Ministry of labour and social policy of Ukraine.

Also one should consider problems of responsibility for avoidance of bargains, for violation and nonobservance of collective bargaining agreements and contracts, for failure to submit information that is necessary for collective bargaining and control action. To achieve this goal students should analyze articles 17-19 of the Law of Ukraine «On Collective Bargaining Agreements and Contracts» and the article 20 of the same Law that sets the procedure of bringing to responsibility.

Plan of the lecture:

1. General characteristic of legislation on collective bargining contracts and agreements. The significance of collective contracts and agreements.

2. The notion and scope of validity of collective labour contract.

3. Parties to a collective labour contract and its content.

4. The procedure of concluding and state registration of the collective labour contract.

5. Control over the performance of the collective labour contract and types of responsibility for breach of contractual obligations.

6. The notion of collective bargaining agreements and their types. The order of collective labour agreement concluding and modification, the control over its performance.