Objective
 |
The objective of the
two Amendment Acts is to allow rank and
file unions to represent executives but
only in a limited way. |
Defination
|
An “executive employee” is
defined as someone who is employed in a
managerial or an executive position. Only
an executive employee working in a unionised
company may join the rank and file union
in that company for limited representation
rights.
However,
the following categories of executives are
excluded and cannot be represented by a rank
and file union if they:-
| a) |
are employed in
senior management positions or perform
or exercise any function or power of
persons employed in senior management
positions, including the control and
supervision of major business operations,
accountability for operational performance,
formulation of business policies, plans
and strategies and provision of leadership
to other employees; or |
| b) |
perform or exercise
functions, duties or powers which include
decision making or the power to substantially
influence decision making on any industrial
matters including the employment,
termination of employment, promotion,
transfer, reward or discipline of other
employees; or |
| c) |
perform any functions
or duties which include representing
the employer in any negotiation relating
to any industrial matters; or |
| d) |
have access to
confidential information relating to
the budget and finances of the employer,
any industrial relations matter or
salaries and personal records of other
employees; or |
| e) |
perform or exercise
any other function, duty or power which
may give rise to a real or potential
conflict of interest if they are represented
by the trade union. [30A & 30B(2),
IRA] |
|
Right to Form Executive Union
|
The
amendment does not affect the right of
executives to form or join an executive
union with full representation rights,
including collective bargaining. |
|
If
the company is unionised by a rank
and file union, the GB membership may
be converted to Ordinary Branch membership
with limited representation rights
subject to the employer’s right
to object under Section 30B(2), IRA.
If
the company is not unionised by a rank
and file union, the GB membership remains.
|
Fresh Recognition Not Necessary
|
No.
There is no need for a rank and
file union to serve claim for
recognition on the employer before
representing an executive.
However, since an employer has
the right to raise objections
to a union’s representation
of its executives on any of the
grounds stipulated under Q 2,
the union has to discuss with
the employer on the categories
of executives that it can represent.
Unions can enter into a Memorandum
of Understandingwith
the employers on the grades/level
of executive employees who are
eligible to join as executive employee
members for partial representation,
once agreement is reached. (A
sample is attached).
|
Existing Arrangements Not Affected
|
Executives
who are currently represented
by rank and file unions
and who enjoy full collective
bargaining rights will
continue to enjoy them.
Their rights are not
affected.
|
Areas of Representation
|
Rank
and file unions can
represent executives
on an individual basis
for the following purposes
only:
| a) |
in appeals against
wrongful dismissals
under S.35(2) of
the Industrial
Relations Act; |
| b) |
negotiations
for retrenchment
benefits; |
| c) |
breach of employment
contracts; and |
| d) |
victimisation
arising out of
a contravention
of S.82 of the
Industrial Relations
Act. |
|
|
We must first understand
what a contract of employment
is. It is an agreement which
records the rights, liabilities,
duties and obligations of an
employer and employee in relation
to each other (subject to the
rules of common law, equity
and any applicable statutes).
These are terms which are stated
in the contract of employment
or a collective agreement or
a staff handbook or a combination
of these. These terms could
be express or implied and include
things like notice pay, salary,
working hours, annual leave,
medical benefits etc.
A breach of the employment contract
occurs when either the employer
or the employee is either unable,
refuses or neglects to comply with
these terms and conditions. For
example, there is a breach of contract
on the part of the employer if
the contract stipulates that an
employee is entitled to one month’s
notice if he is to be terminated
from service and the employer gives
him only two weeks notice. |
|
Express
terms refer to those terms which
are expressly stated either in
the contract of employment itself
or in the exchange of correspondences
or statements (both oral and
in writing between both parties
to the contract). As long as
the terms are not illegal or
against public policy, the agreed
terms are enforceable by the
parties. For example, the contract
of employment may expressly state
that the minimum notice period
is one month for termination
of contract.
Implied terms refer to terms
which are not expressly stated
in the contract of employment
or other correspondences and
are not also expressly verbally
articulated. It is difficult
to prove and only if the following
conditions are fulfilled can
a term be implied: (1)
it must be reasonable; (2) it
must be necessary to give business
efficacy to the contract; so
that no terms would be implied
if the contract was effective
without it; (3) it must be so
obvious that “it goes without
saying”; (4) it must be
capable of clear expression;
(5) it must not contradict any
express term of the contract.
The generaladvice
to executives is that they should
put in writing as many clauses
as they can into their letter of
employment, especially those relating
to core benefits like medical benefits,
leave, compensation packages, job
responsibilities and termination
period. |
Dispute Resolution Mechanisms
|
An
employer may object to a rank
and file union’s representation
of executives on the ground
that these executives come within
any of the categories stated under
Q2. If there is no resolution
at the company level, either
union or company may seek the
assistance of the Ministry
of Manpower to conciliate the
matter. If conciliation by
MOM fails, both parties can
make a joint application to
the Industrial Arbitration
Court for a decision. [Section
30B (3) and 30B5), IRA]. |
|
The
mechanism is similar to that
of Sections 17, 18, 19 and 20
for the rank and file members.
Section 30C – Invitation
to negotiateallows
the union/employer to invite
the other party to negotiate
overretrenchment
quantum or a breach of contract
of employment by the employer/employee.
Section 30 D – Acceptance
of invitation to negotiatestipulates
that either party must serve
acceptance to negotiate within
7 days of being served a notice
to negotiate.
Section 30E – Non-acceptance
of invitation to negotiateallows
the union or employer to notify
the Commissioner if either party
did not respond within 7 days
after being served with notice
to negotiate pursuant to Section
30C.
Section 30F – Conciliationallows
union or employer to notify the
Commissioner for Labour after 14
days from the date of service to
negotiate that an agreement could
not be reached. |
|
Either
party can submit the dispute
relating to retrenchment benefit or breach
of contract for arbitration if
no settlement is reached through
conciliation [Section 31(ca), IRA]. |
Existing Arrangements Not Affected
|
No. It is an offence for an employer to
requireas a condition
of appointment or promotion that a person
ceases to be an officer or a member of
a union if:
| i) |
that trade union
is a trade union for executives; or |
| ii) |
that trade union
is a rank and file union which may
represent persons in managerial or
executive positions only under Section
30B. [Section 79(2), IRA] |
|
Leadership Position
|
Yes.
Executives working in the same
company as the rank and file employees
can join the union as Ordinary
Member and can therefore hold office
in the Union. They are distinct
from General Branch members who
under the unions’ constitutions
cannot hold office.
|
|
Yes.A
union leader who is an executive
employee can enter into collective
bargaining for the rank and file
members. However, the said union
leader can only represent executive
s in their individual capacities
and in respect of dismissals, retrenchments,
breach of employment contract or
victimisation.
|
|
No.
An executive member of a rank
and file union cannot commence,
promote, organise, participate
or otherwise act in furtherance
of any strike or any form of
industrial action taken by the
rank and file union. This means
that even though an executive
is an ordinary member of the
rank and file union, he cannot
participate in the industrial
action organised by the rank
and file union over a dispute
involving rank and file members.
He is also prohibited from taking
part in any secret ballot on
strike or industrial action,
and the executive members will
not be counted to ascertain the
consent of the majority of the
members.
The law, however, does not affect
the right of a rank and file union
to take strike or industrial action
in relation to non executives.
This right remains intact. |
|
No.
Executive members cannot commence,
promote, organise, participate
or otherwise act in furtherance
of any strike or industrial action
between executive employee members
and their employer.
|
|
No.
A rank and file union commence,
promote or organise or finance
any strike or any form of industrial
action over any trade dispute
between its executive members
and their employers. [Section
27(1A) of TUA]
|
Section 25 of the Industrial Relations
Act
|
Yes. Section
25 – Restrictions
on collective agreements in certain
new undertakings has been repealed. Unions
are now free to negotiate for terms
and conditions more favourable than
those contained in Part IV of the Employment
Act for employees employed in:
| i) |
a pioneer enterprise
as defined under section 3 of the
Economic Expansion Incentives (Relief
from Income Tax) Act; |
| ii) |
a hotel or catering
business, or a tourism enterprise
as defined in the Singapore Tourism
Board Act; |
| iii) |
an undertaking
engaged in the transport of passengers
or goods by road, rail, sea, inland
waterways or air, including the handling
of goods at docks, quays, wharves,
warehouses or airport; and |
| iv) |
an undertaking
in which articles are manufactured,
assembled, altered, cleaned, repaired,
ornamented, finished, adapted for
sale, broken up or demolished or
in which materials are transformed,
including undertakings engaged in
ship-building or in the generation,
transformation or transmission of
electricity or motive power of any
kind. |
|
Note: If you are in doubt, please contact
either the NTUC Legal Services Dept or the
Industrial Relations Dept or the Membership
Dept for help.
Prepared by:
NTUC Legal Services Dept
25 Aug 2002
|
