Problems of collective bargaining in Lithuania. Are they being addressed and resolved? (Part 2)
Problems in the conduct of collective bargaining.
I would venture to say that this stage can be crucial to reaching a high-quality collective agreement that actually works and therefore is genuinely mutually beneficial to both sides. It is logical that achieving constructive negotiations involves not only preparing solid bargaining positions and negotiating tactics but also appointing competent negotiators. The success of negotiations on any issue is largely determined by the experience and expertise of the negotiators, so that a wise person will entrust this to professionals in their own fields.
An obvious reason for difficulty in starting negotiations and for conflicts between the negotiators is lack of preparation on the part of the initiators of the negotiations – the trade unions – and lack of appropriate expertise in the field of negotiations.
The situation may improve if a united representation of trade unions participates in the negotiations, but if each trade union seeks to dominate and has a different „correct” view on each issue, clearly the negotiations will not be constructive and will need more time to reach an agreement and conclude a contract – if indeed these can be achieved at all.
Even when negotiating collective agreements at national or sectoral level, a group of trade unions in a given sector may not be able to reach an agreement that satisfies everyone because of their different interests and the inflexibility of their coordination. However, trade unions rarely use qualified lawyers to negotiate. For some reason, the initiators are usually only seeking to transpose as many provisions of the LC and other labour legislation as possible into a collective agreement, despite the fact that the LC allows for additional regulations on wages, working, and rest time conditions, safety and health and other economic, social and working conditions of relevance to the parties, both in terms of content and procedures, and even for derogations from some of the LC’s mandatory provisions in the case of a collective agreement at national, sectoral, or territorial levels.
Employers are more likely to use representatives in negotiations. This is likely to be the reason why employer-side language appears more frequently in the final versions of collective agreements. If the employers were also the initiating party in the negotiations, represented by professional lawyers, we could achieve a high-quality collective agreement.
The negotiation process would certainly be facilitated by strict implementation of Article 188 of the LC, which requires the parties to agree on the procedure and organisational issues at the first meeting of the parties to collective negotiations. It would be easier to reconcile different views and find mutually satisfactory legal formulations in the presence of lawyers.
Extending the scope of collective agreements also poses problems. The LC allows application of an employer-level collective agreement to all employees if the trade union and the employer agree and the agreement is approved by a general meeting of employees. Otherwise, it applies only to members of the signatory trade union(s). An extension of national, territorial and branch collective agreements can be achieved by a decree of Lithuania’s Minister of Social Security and Labour, if a proposal to that effect is made by both parties.
Clearly, the trade union that initiated the signing of a collective agreement may not always have an interest in an extension – after all, it negotiated benefits for its members, who pay dues to the trade union, whereas the benefits in the case of an extension apply to all workers. The image and numerical strength of trade unions is certainly at stake, which is why trade unions often oppose an extension of collective agreements.
Problems with applying collective agreements.
Article 197 of the LC regulates how agreements are to be applied and Article 193 defines what the content of each agreement may be, but a number of challenges arise if an employee is covered by collective agreements at several levels, e.g., branch and employer level. The abovementioned multiplicity of types of collective agreements and the lack of clarity as to which group(s) of workers are to be covered by the provisions of the different types of agreement leads to additional conflicts and labour disputes. Last but not least, trade unions sometimes still avoid disclosing to the employer the exact number of their members, even though it would seem to be clear that the employer needs to know this number for specific application of collective agreements (e.g., if it is agreed in the agreement that a trade union member will be granted more holidays).
To summarise, the problematic issues of widening the circle of entities with the right to initiate collective agreements, and clarifying regulation of rights and obligations, responsibilities and procedures could be resolved by making appropriate adjustments at the legislative level, such as the Trade Union Law, which has not been amended since 2013. However, the brief list of problems that arise in formulating collective agreement requirements, in negotiations, in the application and enforcement of agreements, or in the event of a legal dispute, can be facilitated by the parties through the use of professional legal counsel.