Annex A
TRIPARTITE GUIDELINES
ON EXTENDING THE SCOPE OF UNION REPRESENTATION FOR
EXECUTIVES
(Released on 26 Nov 2014)
Introduction
1.
The Industrial Relations Act was amended in 2002 to introduce
limited representation, to allow rank-and-file unions to represent
executives (except senior management and certain categories of
executives) on certain industrial matters on an individual basis.
2.
Since then, there have been more executives in the workforce.
They now form almost a third of the workforce1, and this proportion will
continue to grow in future. In view of this development, the tripartite
partners recommend building on the 2002 amendment to provide more
scope for union representation of executives.
3.
To guide employers and unions, the tripartite partners are issuing
the following set of guidelines on eligibility of executives for collective
representation, union membership and leadership as well as
representation of executives by rank-and-file unions at the workplace.
These guidelines are arrived at after consulting employers and unions
across different industries.
Eligibility of executives for collective representation
4.
This section deals with the eligibility of executives for collective
representation by rank-and-file unions.
Criteria
5.
To avoid conflict of interest and the undermining of management
effectiveness, executives with the following responsibilities should be
excluded from representation by the unions. This refers to an employee
who:
a. is in a senior management position or who:
 has control and supervision of major business operations;
1
In 2013, there were 638,500 PMEs comprising 31% of the resident workforce, up from 27% in 2003.
The proportion of PMEs will continue to increase.
b.
c.
d.
e.
 is accountable for operational performance;
 does the planning of business policies and strategies; and
 provides leadership to other employees;
has decision making powers on any industrial matter including
the employment, termination of employment, promotion,
transfer, reward or discipline of other employees;
represents the employer in negotiation with the union on any
industrial matter;
has access to confidential information relating to the budget
and finances of the employer, any industrial relations matter or
the salaries and personal records of other employees; or
is in a role which may give rise to a conflict of interest if he is
represented by a trade union.
6.
In addition to the above, employers and unions may mutually
agree to adopt the following parameters to determine the eligibility:
a. salary level as a proxy; and/or
b. proportion of executives within the organisation
7.
As the circumstances and structures of organisations vary,
employers and unions should take them into consideration when
deciding on the criteria to use in determining eligibility.
Sharing of Information
8.
Employers and unions should work closely in the spirit of
cooperation to reach an agreement on the issue of eligibility. To facilitate
this, employers and unions could mutually share relevant information.
Disputes
9.
If there is a dispute on eligibility, parties are strongly encouraged to
approach the Ministry of Manpower for assistance to resolve the dispute
early through conciliation. If no agreement is reached through
conciliation, employers and unions shall then submit a joint application
for arbitration by the Industrial Arbitration Court.
Union Membership and Leadership
10. Executives who are collectively represented by the union may
stand for election and hold office, according to the union’s constitution.
As office bearers, they may represent the unions and engage employers
in the following:
a. collective bargaining in respect of terms and conditions
affecting the rank-and-file and/or executive members; and
b. limited representation on an individual basis on specified
matters affecting executive members.
Representation of Executives by the Union at the Workplace
11. There are various options for representation of executives, some
of which are suggested below. Employers and unions will need to work
out a suitable arrangement that will take into consideration specific
organisational circumstances and structure. They should also openly
share, discuss and understand each other’s concerns and needs.
Limited Representation
12. Since the introduction of limited representation for executives in
2002, some employers may already have an understanding or
agreement on the scope of representation of executives with their unions.
With the introduction of the additional option of collective representation
for executives, employers and unions may wish to retain the current
arrangement if it continues to be relevant or mutually agree to review
and adopt a new arrangement.
Memoranda of Understandings (MOUs) on eligibility
13. Employers and unions may draw up MOUs on classes of
executives that can be represented by the unions.
14.
The MOUs may include the following:
a. the classes of executives eligible for limited and/or collective
representation;
b. a provision to allow employers and unions to conduct
appropriate review to the MOUs;
c. the sharing of information between employers and unions to
facilitate discussion on matters relating to the representation of
executives; and
d. a provision to refer disputes to Ministry of Manpower for
conciliation, in the event the disputes related to the
implementation of the MOU cannot be resolved at the
organisational level.
15. Where either party have disputes over eligibility for limited and/or
collective representation, they can approach the Ministry of Manpower
for assistance to resolve the dispute early through conciliation.
Union Recognition
16. Trade unions who have not been accorded recognition by
employers and are seeking to collectively represent employees may,
depending on the profile of employees, where appropriate, first seek to
represent the rank-and-file employees before seeking to represent the
executives.
17. Trade unions who have been accorded recognition for rank-andfile employees may approach employers for direct recognition to
collectively represent executives for the class(es) of executives mutually
agreed upon.
18. The employer may grant direct recognition to the trade union or
request for a secret ballot to be conducted.
19. Where either party has concerns, they may approach the Ministry
of Manpower for assistance.
For Assistance
20. Tripartite partners hope that employers and unions will work
together for the smooth implementation of the amendments. The
tripartite partners will monitor the adoption of the guidelines and review it
where necessary. Employers or unions who need assistance may
approach SNEF, NTUC or MOM.
Frequently Asked Questions
General
Q1
When will the IR (Amendment) Act 2015 take effect?
While the amendments to the Industrial Relations Act will be
effective on or after 1 April 2015, employers and unions should
first understand each other’s concerns and needs before
discussing the various options for representation of executive
employees, depending on organisational circumstances and
structure.
Q2
Will the union who has been granted recognition by the
employer
to
represent
rank-and-file
employees
automatically represent all eligible executive employees?
Trade unions who have been accorded recognition by the
employer for rank-and-file employees will have to go through the
union recognition process to earn the right to collectively
represent eligible class(es) of executives. This is unlike limited
representation, where the right to represent eligible executives
on an individual basis is automatic.
Eligibility Criteria
Q3
Given that senior management and certain categories of
executives are not allowed to be collectively represented by
the unions, would senior professionals be eligible for
collective representation?
Senior professionals 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 may not be suitable for collective representation.
Examples of such employees include research scientists
working on a cutting edge technology involving intellectual
property. Executives with access to confidential information
such as in-house legal counsels or those who have significant
influence over the business across geographical regions should
also be excluded from collective representation.
Scope of Representation
Q4
What are the matters which the unions are able to negotiate
with the employers?
Trade unions which have been accorded recognition by
employers may negotiate with the employers in relation to any
industrial matters with a view to arrive at collective agreements.
This however should not include the following which relates to
management’s prerogative under Section 18(2) of the Industrial
Relations Act such as promotion, transfer, employment,
termination by reason of redundancy, dismissal and
reinstatement of an employee or assignment of duties.
Q5
What are the matters that will likely be included for
collective representation for executives?
The matters for collective representation will vary depending on
the needs and concerns of executives, organisational
circumstances and structure.
TRIPARTITE GUIDELINES
ON EXPANDING THE SCOPE OF LIMITED REPRESENTATION FOR
EXECUTIVES
(Released on 26 Nov 2014)
Introduction
1.
A set of Tripartite Guidelines on Union Representation of
Executives was issued in 2002 to facilitate the process of employees in
managerial and executive positions (executives) joining the rank-and-file
unions for limited representation. Tripartite partners have revised the
guidelines, to include re-employment as another area for individual
representation.
Scope of Limited Representation for Executives
2.
A rank-and-file union which has been accorded recognition to
collectively represent rank-and-file employees, may represent its
executive members individually, and not as a class, for any of the
following purposes:
a. Retrenchment benefits - to negotiate with the employer to
resolve any dispute relating to the retrenchment benefit payable
to the executive employee upon retrenchment;
b. Dismissal - to make representations to the Minister for
Manpower under section 35(3) of the Industrial Relations Act
for dismissal without just cause or excuse;
c. Breach of individual contract - to negotiate with the employer to
resolve any dispute relating to a breach of contract of
employment by the executive employee or the employer;
d. Victimisation - to represent the executive employee in
proceedings before a Court if the executive employee is being
victimised by the employer for participating in union related
activities in circumstances arising out of a contravention of
section 82; and
e. Re-employment dispute - to negotiate with the employer to
resolve any re-employment dispute as defined in section 8A(4)
of the Retirement and Re-employment Act, and to represent the
executive employee in proceedings before the Commissioner
for Labour.
Eligibility of Executives for Limited Representation
3.
An employer may object to limited representation on the ground
that the executive employee:
a. is in a senior management position or who:
 has control and supervision of major business operations;
 is accountable for operational performance;
 does the planning of business policies and strategies; and
 provides leadership to other employees;
b. has decision making powers on any industrial matter including
the employment, termination of employment, promotion,
transfer, reward or discipline of other employees;
c. represents the employer in negotiation with the union on any
industrial matter;
d. has access to confidential information relating to the budget
and finances of the employer, any industrial relations matter or
the salaries and personal records of other employees; or
e. is in a role which may give rise to a conflict of interest if he is
represented by a trade union.
4.
In addition to the above, employers and unions may mutually
agree to adopt the following parameters to determine the eligibility:
a. Salary level as a proxy; and/or
b. Proportion of executives within the organisation.
Sharing of Information
5.
Employers and unions should work closely in the spirit of
cooperation to reach an agreement on the issue of eligibility. To facilitate
this, employers and unions could mutually share relevant information.
Dispute
6.
If there is a dispute on eligibility, parties are strongly encouraged to
approach the Ministry of Manpower for assistance to resolve the dispute
early through conciliation. If no agreement is reached through
conciliation, union and employer shall then submit a joint application for
arbitration by the Industrial Arbitration Court.
Retrenchment Benefit
7.
A union may represent an executive employee in negotiations with
the employer on matters relating to the amount of retrenchment benefit
payable.
8.
In determining the amount, employers, unions and employees
should exercise flexibility, taking into consideration the following:
a. the market norm, the employer’s financial position, the reason
for retrenchment, and labour market conditions, among other
relevant factors;
b. the need to help individuals tide over the transition period
before they secure alternative employment; and
c. that the formula adopted for computing the retrenchment
payment for an executive does not have to be based on that
used for a rank-and-file employee.
Dispute
9.
If the dispute on the payment of retrenchment benefit cannot be
resolved at the organisational level, it may be referred to the Ministry of
Manpower for conciliation. If no agreement could be reached through
conciliation, union or employer may make a request in writing to the
Registrar for arbitration.
Dismissal
10. A union may make representation to the Minister for Manpower
under section 35(3) of the Industrial Relations Act on behalf of an
executive employee who considers that he has been dismissed without
just cause or excuse. The representation must be in writing and made
within one month of the dismissal.
11. A dismissal which occurs in circumstances arising out of a
contravention of section 82 of the Industrial Relations Act, where an
executive employee is victimised by the employer for participating in
union related activities, section 31(e) of the Act allows Minister for
Manpower to direct such a dispute for arbitration.
12. For dismissal disputes under section 35(3) and 82 related to
dismissal without just cause or excuse by the employer or victimisation
of the executive employee for participating in union related activities, the
union and employer are encouraged to resolve them through informal
negotiation and conciliation. Arbitration should be the last resort.
Breach of Individual Contract of Employment
13. A union may represent an executive employee in negotiations with
the employer on matters relating to a breach of individual contract
arising from the following circumstances:
a. When terms of employment stated in an executive employee’s
letter of appointment are not honoured;
b. When there is non-compliance in the provision of benefits by
the employer; and
c. When there is any other breach of the employment terms which
affect executive employees individually.
14. To minimise disputes, employers are encouraged to state clearly
the terms of employment in their executive employees’ letters of
appointment.
Dispute
15. Where a dispute relating to a breach of an individual contract of
employment could not be resolved amicably at the organisational level,
either union or employer could refer the dispute to the Ministry of
Manpower for conciliation. If no agreement could be reached through
conciliation, union or employer may make a request in writing to the
Registrar for arbitration.
Victimisation or Serious Disciplinary Action with a View to
Dismissal
16. A union may represent an executive employee in proceedings
before the Court on matters arising from the following circumstances:
a. where, based on an alleged misconduct, an employer takes
serious disciplinary action against an executive with a view to
dismissal2; or
2
For example, the executive employee has been issued with a final warning letter and he/she is likely
to face dismissal.
b. where an executive employee considers that he/she has been
victimised and the victimisation is likely to lead to his/her
dismissal.
17. Discussion with the union and employer on disputes relating to
alleged victimisation or serious disciplinary action with the view to
dismissal should end at conciliation. To facilitate the resolution of such
disputes, employers are strongly encouraged to put in place a set of
grievance and appeal procedures to enable grievances or disputes to be
resolved amicably at the organisational level.
18. Where the dispute relating to alleged victimisation or serious
disciplinary action cannot be resolved, and the affected executive
employee is subsequently dismissed, the dispute should be handled in
accordance with Paragraphs 10 to 12 of the guidelines.
Re-employment
19. A union may represent an executive employee in negotiations with
the employer on any of the following matter relating to re-employment:
a. the denial of re-employment to an employee on the ground that
the employee does not satisfy the re-employment eligibility
criteria;
b. the denial of re-employment to an employee on the ground that
the employer is unable to find a vacancy in his establishment
which is suitable for the employee;
c. the reasonableness of the terms and conditions of any reemployment offer made by an employer; or
d. the reasonableness of the amount of any employment
assistance payment offered to an employee.
20. Unions and employers are urged to refer to the Tripartite
Guidelines on the Re-employment of Older Employees in their
negotiations3.
Dispute
21. Where a dispute relating to re-employment of an executive
employee could not be resolved amicably at the organisational level,
either union or employer could refer the dispute to the Ministry of
3
http://www.mom.gov.sg/Documents/employmentpractices/Guidelines/Tripartite%20Guidelines%20on%20REOE%2020110228.pdf
Manpower for conciliation. If no agreement could be reached through
conciliation, the employee may lodge an appeal/claim with the Ministry
of Manpower provided for under the Retirement and Re-employment Act.
Union Membership and Leadership
22. Depending on the union’s constitution, executive employees who
are individually represented by unions may stand for election and hold
office. As office bearers, they may represent the unions and engage
employers in the following:
a. collective bargaining in respect of terms and conditions
affecting the rank-and-file and/or executive members; and
b. limited representation on an individual basis on specified
matters affecting executive members.
Participation in Industrial Action
23. A union or any of their members shall not commence, promote,
organise or finance any strike or any form of industrial action in
connection with any dispute between an executive employee on limited
representation and his/her employer.
24. An executive employee on limited representation shall not
commence, promote, organise or participate in any strike or industrial
action taken by the union.
Representation of Executives by the Union at the Workplace
25. In discussing options for executive employees’ representation at
the workplace, it is important for unions and employers to establish good
labour-management-relations. This will ultimately lead to a harmonious
workplace environment for all which can enhance workforce productivity.
26. Since the introduction of limited representation in 2002, some
employers may already have an understanding or agreement on the
scope of representation of executive employees with their unions. With
the introduction of the additional option of collective representation for
executive employees, employers and unions may wish to retain the
current arrangement if it continues to be relevant or mutually agree to
review and adopt a new arrangement.
Memoranda of Understandings (MOUs) on limited representation
27. Employers and unions may draw up MOUs on matters relating to
the representation of executive employees by rank-and-file unions.
28.
The MOUs may include the following:
a. the categories of employees eligible for limited representation;
b. a provision to allow employers and unions to conduct
appropriate review to the MOUs;
c. an appeal or grievances procedures to enable grievances to be
settled expeditiously at the organisational level;
d. the sharing of information between employers and unions to
facilitate discussion on matters relating to the representation of
executives; and
e. a provision to refer disputes to the Ministry of Manpower for
conciliation, in the event the disputes related to the
implementation of the MOU cannot be resolved at the
organisational level.
For Assistance
29. Tripartite partners hope that employers and unions will work
together for the smooth implementation of the amendments. Employers
or unions who need assistance may approach SNEF, NTUC or MOM.