One major issue in the EVA Airways strike is the Taoyuan Flight Attendants’ Union’s insistence on the “no free-rider” clause — that is, non-union members should not enjoy benefits negotiated by the union; EVA does not agree.
Article 13 of the Collective Agreement Act (團體協約法) may be used as a reference to resolve this dispute. It stipulates that workers not covered by the agreement shall pay a fee to the union. This clause is a legal transplant from the US; however, the US Supreme Court ruled in June last year that it is unconstitutional.
In the US, just over 10 percent of the workforce are union members, so membership fees alone would not be enough to keep the unions running. A practical solution that has been used for years is to collect “agency fees” from workers who are not union members. That is because they also enjoy the benefits negotiated by the union and cannot be “free riders.”
However, non-union members might ask why they are expected to pay for something they had not asked for. Some have filed lawsuits against this and last year, the US Supreme Court ruled that it is against the freedom of expression for public sector unions to collect “agency fees.”
After the ruling, not only have non-union members been able to get a free ride, but some have also filed lawsuits to reclaim the agency fees that they paid.
China Airlines’ flight attendants went on strike in 2016, but why did it take their EVA counterparts three years to follow suit? The key reason is that the Collective Agreement Act has become outdated, just a few years after it was implemented.
There are two levels to a collective bargaining agreement. One is the company level, whereby the agreement applies to members within a company — this is the practice in Taiwan and the US.
The other is the sector level, in which an agreement between a union and management applies to all companies and workers of a given occupation — this is the case in France and Belgium.
The official name of “free riding” is the “extension of collective agreements,” which means that workers who do not participate in the agreement can benefit from the union’s bargain. This is based on the idea of state intervention in the labor-management agreement to protect the working conditions of all employees. The problem is that it does not encourage competition.
In France and Belgium, collective agreements are mostly sector-based and apply to all workers, regardless of whether they are members of a union. Free riding is so common that collective agreements are almost always automatically extended. In Germany, although there is no automatic extension system, the collective agreement can be extended to non-union workers after it is filed by the employer and approved by labor authorities.
If Taiwan had a sector agreement system, when China Airlines members of the Taoyuan Flight Attendants’ Union went on strike in 2016, they could have thought of extending the agreement to EVA, so the latter would not have to strike this year, resulting in more social costs.
Judging from international practice, not only can non-union workers “free ride,” cross-company “free riders” are quite common, too.
Taiwan needs a more progressive approach to dealing with strikes.
Shen Cheng-nan is a physician.
Translated by Lin Lee-kai
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