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December 3, 2019

Unfair Labor Practices: What Employers Need to Be Aware Of

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Bangkok Post: Human Resources Watch

While most employers understand what “unfair termination” means, many may be unfamiliar with the term “unfair labor practice” and what it entails. The Labor Relations Act (LRA) gives three general categories of conduct considered to be unfair labor practices: retaliation, wrongful pressure, and termination while under collective bargaining agreements.

Retaliation

Actions deemed retaliation are prohibited. These include the following scenarios:

  • Termination or doing anything that results in employees, employee representatives, or committee members of labor unions or labor federations being no longer able to work with the employer while the labor union or employees take steps to prepare petitions, submit labor demands, or sue or give evidence to officers under labor protection laws.
  • Termination or doing anything that results in the employee no longer able to work with the employer because of labor union membership.
  • Hindering employees from holding labor union membership or asking employees to resign from union membership.
  • Giving (or promising) money or property to employees either to not apply or to resign from union membership; also prohibited are such gifts or promises to a labor union officer to not accept employee membership applications.
  • Hindering a labor union or labor federation from conducting activities, or hindering employees from exercising their rights as union members.
  • Interfering in a labor union’s or labour federation’s activities without legal authority.

Wrongful pressure

An example of wrongful pressure would be an employer directly or indirectly forcing an employee to be a union member or resign from union membership. The concept of wrongful pressure can also be connected to issues of retaliation—that is, doing anything that leads to the employer committing one of the actions detailed in the previous section.

Termination under collective bargaining agreements

While a collective bargaining agreement (CBA) between employees or a labor union and employers is in effect, the employer is prohibited from terminating anyone who is involved with labor demands. This includes employees, labor union committee and subcommittee members, employee representatives, and committee and subcommittee members of labor federations. However, exceptions to this rule exist if an employee commits one of the following offenses:

  • Performs duties dishonestly or intentionally commits a criminal offense against the employer.
  • Intentionally causes serious damage against the employer.
  • Through negligence causes serious damage against the employer.
  • Violates work rules or regulations, or disobeys orders that are legal and fair, despite having already been given a written warning by the employer (though the written warning requirement is waived for serious matters).
  • Abandons his or her duties for a period of three consecutive work days without reasonable cause.
  • Acts in any manner that supports or induces violation of a CBA or an order of a labour dispute arbitrator.

If an employer has need to terminate an employee for reasons other than the grounds listed above, the employer can terminate the employee even while the CBA is in effect. For example, if an employer suffers losses and cannot operate the business of a particular department, the termination is not an unfair labour practice (in fact, this very issue came up in a case before the Supreme Court in 2005). Another example—which again has been at issue in a case before the Supreme Court—would be the termination of an employee who has health problems and takes too many sick days in a year. In this situation, terminating the employee while the CBA is in effect is also not considered an unfair labor practice.

Procedural requirements

If anyone commits an unfair labor practice, the aggrieved person can submit a complaint to the Labor Relations Committee (LRC) within 60 days from the date of the violation. The LRC then needs to consider the complaint and issue an order within 90 days of receiving it. This step is crucial – if a person submits a petition to the labor court accusing another party of committing an unfair labor practice without having first proceeded with the LRC, the court must dismiss the petition.

The LRC will investigate the facts and evidence from both parties and will then issue an order – either dismissing the complaint (if the court believes the accusation is not true) or ordering the employer to take action to rectify or make amends for the unfair labor practice. This often takes the form of forcing an employer to reinstate a terminated employee or compensate the employee or concerned persons.

If a violator does not comply with an LRC order within a deadline stated by LRC, the violator will face criminal penalties such as imprisonment for up to six months, a fine of up to THB 10,000, or both.

In addition, if the LRC finds that an employer committed an unfair labor practice, and also orders the employer to reinstate the employee, the employer can petition the labor court to revoke the LRC’s order. However, if the court considers that the employer committed an unfair labor practice and the employee can no longer work with the employer, the court may order the employer to pay compensation to the employee instead of reinstatement.

 

This article was originally published in the Bangkok Post and is reproduced here with permission and thanks. The original story can be viewed on the Bangkok Post website.

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