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Unions and Workers: It Is Neither Fair Nor Legal to Differentiate Between Union Members and Non-Members in Earnings

Author: Lider

May 9, 2023

Considering that we are in the year before parliamentary elections, it is expected that employees, mainly with the help of their unions, threaten the Government with a strike if it does not meet at least the majority of their demands. It was also expected that the Government would immediately meet with all union representatives, listen to their proposals, and share with the public that their demands would be met. The so-called win-win variant.

Thus, the unions of public and state services have submitted a request to the Government to accept their proposals. This is entirely justified as their task is to protect employees of public and state services and to work on improving the position of workers and enhancing their property rights.

However, this time the unions have also come up with one incorrect demand from which they do not deviate, namely that their members have more favorable property rights than those who are not their members. For example, they demand that their members receive an Easter bonus of two hundred euros, while non-members receive one hundred euros. The Government made a counter-offer that this difference would be twenty euros, which the unions deemed humiliating for both them and their members. With this statement, they have already shown that their goal is not to protect all workers, but only their members, thereby undoubtedly creating discrimination among workers.

Violation of Principles

Namely, the unions base their demand for differentiation in property rights between members and non-members on Article 90a, paragraph 1, point 1, and Article 192, paragraphs 4 and 5 of the Labor Law. The aforementioned provisions, which came into force on January 1, 2023, allow that the earnings paid by the employer to the employee as a material right from the employment relationship (in this case, the Easter bonus) can be collectively negotiated in a larger scope for union members who negotiated the collective agreement compared to those who are not members of that union. The only limitation is that the total amount of these material rights cannot be collectively negotiated on an annual basis for more than double the amount of the average annual union membership fee of the unions that negotiated the collective agreement.

In doing so, they ignore the fact that this legal provision is contrary primarily to the principle of voluntary membership in the union from Article 166, paragraph 2 of the Labor Law, which clearly states that no one may be placed in a less favorable position due to membership in an association, or participation or non-participation in the activities of the association. With an additional prescribed consequence that acting contrary to the aforementioned represents discrimination in terms of a special law.

Such a demand from the unions is also contrary to another fundamental principle, namely the prohibition of unequal treatment due to union membership or activities from Article 186, paragraph 1 of the Labor Law, which stipulates that a worker may not be placed in a less favorable position than other workers due to union membership. Paragraph 2 of the same article even explains that membership in a union and participation in union activities may not be a circumstance on which the employer bases a decision, among other things, regarding payments to workers (thus for all payments) and social benefits.

It is precisely this demand from the unions that undoubtedly creates discrimination among workers that may expose employers to additional demands from those workers who are not union members for the payment of the same amount of Easter bonus, as well as decisions from relevant inspections in which any different treatment by the employer will be deemed discriminatory with severe penalties, and therefore large monetary fines.

One should not forget the application of another fundamental principle in labor law in this case. This is the principle of favorability, i.e., in favorem laboratoris or in favor of the worker, which means that in cases where a certain legal situation or legal relationship is regulated differently, the law or provision that is more favorable to the worker applies. Given the mutual contradiction of the previously mentioned provisions of the Labor Law, it is clear that the unions’ demand has created legal uncertainty on the part of the employer and discrimination between those workers who are their members and those who are not.

Representatives of All Workers or..?

It is understandable that unions provide their members with various benefits arising from cooperation with other business entities in the market (e.g., benefits for installment payments, discounts on various types of insurance policies or for purchasing certain products, discounts for accommodation services, etc.), but extending this benefit to rights from the employment relationship should indeed be prohibited.

If the underlying reason for such union demands is to attract new members, they should not be allowed to establish the rule that only those workers who are union members enjoy certain property rights with the employer, while other workers are financially ‘punished’ for not being union members. This somewhat resembles the already erroneous established pattern that some enjoy certain advantages simply because they are members of certain political parties. In such a case, unions could not represent themselves as representatives of all workers, and only the name would remain from the role and importance of the unions.