Currently, a rank & file union which has been recognised by a company for collective representation of its rank & file employees is entitled to represent the company's professionals, managers and executives ("Executives") individually, for limited issues relating to:
- Unfair dismissal;
- Retrenchment benefits;
- Breach of the employment contract; and
- Victimisation for participating in a union.
Rank & file unions are not currently permitted to collectively represent Executives as a class.
This position will change with amendments to the Singapore Industrial Relations Act ("IR Act") passed on 20 January 2015 to expand a rank & file union's right of representation to include:
- Individual representation of Executives on re-employment issues; and
- Collective representation of Executives as a class.
- This change in law is expected to take effect on 1 April 2015.
In addition, two sets of Guidelines were issued on 26 November 2014:
- the Tripartite Guidelines on Extending the Scope of Union Representation for Executives; and
- the Tripartite Guidelines on Expanding the Scope of Limited Representation for Executives.
The Guidelines deal with:
- criteria for determining the eligibility of Executives for collective representation by rank & file unions.
- types of union representation of Executives, other than through collective agreements
- the addition of re-employment disputes to the list of issues on which rank & file unions may represent Executives on an individual basis.
- These Guidelines revise and update the 2002 Tripartite Guidelines on Union Representation of Executives ("2002 guidelines").
The policy behind the IR Act amendments
The Tripartite parties – the Ministry of Manpower (MOM), the Singapore National Federation of Employers (SNEF), and the National Trade Unions Congress (NTUC) – have referred to the growing numbers of Executives who now form approximately one-third of the workforce, to the need for the labour movement to stay relevant by meeting the needs of such Executives, and to allowing rank & file unions to collectively represent Executives so that companies may deal with only one union for both rank & file employees as well as Executives.
What the IR Act and Guidelines provide
- Eligibility of Executives for Collective Representation
The IR Act amendments and Guidelines adopt the same "negative" list of descriptions of Executives which a company can object to being represented by a union, as is now set out in section 30A(2) IR Act. These are Executives who:
- are in a senior management decision.
- have control & supervision of major business decisions.
- are accountable for operational performance.
- formulate business policies, plans & strategies.
- provide leadership to other employees.
- have decision-making powers on industrial matters, including employment, termination of employment, promotion, transfer, reward or discipline of other employees.
- represent the employer in negotiations with the union on industrial matters.
- have access to confidential information relating to the budget and finances of the employer, industrial relations matters, or the salary and personal records of other employees.
- are in roles which may give rise to a conflict of interest if represented by a trade union.
The FAQs in the Guidelines indicate that the following Senior professionals "may not be suitable for collective representation" i.e.,:
- with considerable autonomy;
- who exercise a high degree of independent judgement and initiative; and whose work has an impact on the strategic direction of the organisation.
- research scientists working on a cutting edge technology involving intellectual property;
- In-house legal counsel; and
- those with significant regional business responsibilities.
The Guidelines repeat the parameters in the 2002 guidelines which allow a company and union who are negotiating on the eligibility of Executives for representation to use salary level and/or the proportion of executives in an organisation as a proxy for determining eligibility.
If a company and union cannot agree on which Executives should and should not be represented by the union, the parties are encouraged to refer the dispute to MOM for conciliation before making a joint application to the Industrial Arbitration Court ("IAC") for determination by the President of the IAC.
- Union recognition
A union must win a company’s recognition to collectively represent the company’s Executives. This is the case even if the union has already been recognised by the company to represent its rank & file employees. Recognition may be voluntarily granted by a company, or may be determined by secret ballot.
A union which has not been recognised as yet, may first seek recognition to represent rank & file employees before seeking to represent Executives.
However, a union which has already been recognised will continue to be entitled to represent Executives on an individual basis.
- Types of union representation of Executives
The Guidelines encourage companies and unions to work out a suitable arrangement for union representation of Executives, taking into consideration the structure and circumstances of the company. Some options which a company and union may consider which stop short of a collective agreement for Executives are:
- if there is already an agreement or understanding on individual representation of Executives:
- to maintain the status quo; or
- agree to adopt a new arrangement
- enter into a memorandum of understanding to agree on classes of Executives eligible for individual or collective representation by the union.
What Companies should consider
Companies should prepare themselves for unions seeking to represent Executives, consider their response in the event that a union seeks recognition to represent Executives, and pay particular attention to which categories of Executives employed by them should or should not be represented by a union.