The draft Law on Collective Agreements has been under consideration by parliament since 1994. Following the election of a new government in October 2004, the draft legislation was rendered void. The government and the social partners could not agree on the regulation of certain basic issues. In addition, the proposed regulations relating to other matters have been called into question and will have to be changed.
In 1993, the employer organisations and trade unions concluded the Annex to the General Collective Agreement for the Private Sector (GCAPS) (then named General Collective Agreement for the Economy), whereby they demanded that the new Law on Collective Agreements (LCA) be immediately adopted to rectify many deficiencies in the system of collective labour relations. However, in order to achieve consistency in the future system of labour law, many experts argued (Koncar, P.: 'Why the Law on Collective Agreements?' (in Slovenian). Company and labour, No.3/1993.) that the changes of legislation concerning collective labour relations and concerning individual labour relations should go hand in hand. In addition, the Law on Strikes (LS) and the Law on Labour and Social Courts (LLSC) should also be adopted.
History of the draft LCA
A draft LCA was submitted to the Slovenian parliament on 8 March 1995, but was then suspended because it was planned to pass it simultaneously with the new Law on Labour Relations (LLR) concerning individual labour relations. In 2002, when the parliament passed the new LLR (SI0206101N), the suspension of the draft LCA was lifted. A commission for its further elaboration was formed, comprising representatives of the government, the employers and the trade unions. In the meantime, the new LLSC came into force, which also eased the preparation of the proposed LCA. According to the new LLSC, the labour courts have the competence to adjudicate in individual and collective labour disputes.
A general election was held in October 2004 and resulted in the formation of a new centre-right coalition government, replacing the former centre-left coalition (SI0501204F). After the new government took office, the former proposed LCA was rendered void.
The preparations of the draft LCA began anew on 1 February 2005 when a tripartite commission for its preparation held a first meeting.
However, at its session on 17 June 2005, the Economic and Social Council of Slovenia (Ekonomsko socialni svet Slovenije, ESSS), the country's central body for tripartite cooperation (SI0207103F), again failed to discuss the draft LCA. Some ESSS members argued that the draft Law on the Chambers of Commerce and Industry (LCCI) prepared by the Ministry of the Economy (Ministrstvo za gospodarstvo, MG) was not in accordance with the draft LCA. These members were of the opinion that the time limit concerning the transformation of the Chamber of Commerce and Industry of Slovenia (Gospodarska zbornica Slovenije, GZS) was problematic. On 7 June 2005, the MG made public its guidelines for a new draft LCCI (SI0506302F), making membership of the GZS voluntary among companies rather than compulsory as at present (SI0211102F).
Basic disagreements between the social partners
The last version of the draft LCA (not yet submitted to the government for approval) was prepared after the meeting of the tripartite commission held on 5 July 2005. The social partners disagree on some articles regulating basic issues. In addition, there are question marks over other basic issues included in the draft LCA. One example is included in the third paragraph of Article 10a, stating that:
'The parties to the collective agreement may determine that certain separate rights determined by the collective agreement are valid only for the trade union members.'
This stipulates, for example, that members of the signatory trade union may be better paid than workers who are not members. It is likely that this paragraph is included in order to put pressure on workers to join a trade union and is, therefore, not in accordance with the principle of the freedom not to join a trade union. No one can be forced to join a trade union, and to confer certain benefits on trade union members by virtue of their union membership runs counter to this principle. The ILO Convention No.98 on the right to organise and the right to negotiate collectively stipulates that workers’ rights are not dependent on trade union membership or non-membership.
According to an EC study, the inclusion in a collective agreement in Belgium of a clause giving substantial, exclusive benefits to members of a trade union constitutes an unlawful means of pressure. It is, therefore, considered null and void. An employer who applies it is in breach of the law and will have to compensate for damages.
Some Belgian authors argue that its lawfulness depends on certain conditions being met, for example:
- the pressure on non-union members is such as to reassure them that they can resist it (this means that the benefits may not be much more substantial than the amount of the union contributions);
- entrenched rights are respected (any advantages previously granted to all workers may not suddenly apply to union members only);
- the advantages granted to union members do not run counter to the principle of equality contained in the Constitution.
(according to the study of the European Commission, Employment and Social Affairs: The regulation of working conditions in the Member States of the EU, Vol.2: The legal systems of the Member States; a comparative perspective, Brussels, 1998.)
Commentary
It is disappointing that, in Slovenia, the new LCA providing for a voluntary system of collective bargaining, based on autonomous employer organisations and trade unions with voluntary membership, has not yet been adopted. The new LCA has already been in preparation for too long. One can only hope that, this time, a serious attempt to adopt it has been made and that it will not take another 10 years to do so (Stefan Skledar, Institute of Macroeconomic Analysis and Development)