Legal Issues of Conducting Collective Bargaining as a Form of Social Partnership

This article addresses problematic aspects of collective bargaining as the principal form of social partnership. It is noted that the linguistic meaning of the term, which emphasises communication between multiple actors, does not allow identification of specific characteristics that would differentiate opinion-exchange procedures either by the manner of their organisation, the specifics of the negotiation process itself, or the outcomes of such exchanges. In light of established practice of social cooperation and the variety of forms of communication between representatives of its participants, the negotiation process is considered as a procedure for exchanging views between actors expressing different interests, aimed at reaching a joint agreement regarding regulation of social and labour relations. The article emphasises the distinction between negotiations and other forms of social cooperation—namely, the initial focus on adopting a joint decision and the legal nature of the act that concludes the opinion-exchange procedure between the parties: a normative agreement referred to in international law by the general term “collective agreement.” The orientation of the negotiation process toward reaching agreement on regulating social and labour relations presupposes stricter requirements for the representativeness of persons participating in negotiations. This is expressed in rules on the priority participation of representative workers’ and employers’ organisations. This does not infringe the rights of minority trade unions, whose representatives may also participate in collective bargaining together with representatives of organisations representing the majority of workers. The view is expressed that, in modern conditions, it is reasonable to use electronic means of communication when conducting collective bargaining. At the same time, in order to protect information constituting a legally protected secret, stricter requirements are needed for ensuring the security of communications. The article also cautions against certain proposals to modify collective bargaining requirements—specifically, proposals to fix a list of possible breaches of the principle of good faith in collective bargaining, to establish a minimum set of issues that must be resolved in the course of negotiations, and to require a single annual nationwide bargaining campaign for concluding collective agreements and other agreements. 

1. Bondarenko E. N. International Labour Standards and Russian Labour Law: Prospects for Coordination. Moscow: Norma Publ., INFRA-M Publ.; 2016. 255 p. (In Russ.)

2. Bobkov V. N., Volk E. A., Voitkovskaya I. V. Labour Law: National and International Dimensions. Vol. 2: Transformation of Issues Relating to Certain Labour-Law Institutions. Non-Standard Employment. Moscow: Norma Publ.; 2022. 568 p. DOI: https://doi.org/10.12737/1859092 (In Russ.)

3. Webb S., Webb B. Industrial Democracy. Vol. 1. St. Petersburg: O. N. Popova, 1900. 366 p. (In Russ.)

4. Sviontkovski A. M. European Standards of Collective Labour Law. Russian Journal of Labour & Law. 2009;4:369-446. (In Russ.)

5. Shishkina K. V. Rights of Minority Trade Unions: Regulatory Recognition and Implementation. In: Lyutov N. L., Suleimanova F. O. (Eds.). Standard and Non-Standard Employment: Prospects for Research and Regulation (Fifth Gusov Readings). Moscow: RG-Press Publ.; 2020. P. 326–330. (In Russ.)

6. Val’kovoi A. F. On Employees’ Right to Protect Labour Rights for the Purpose of Preventing Collective Labour Disputes. In: Social and Labour Conflicts in Russia and Worldwide. St. Petersburg: St. Petersburg University of the Humanities and Social Sciences Publ.; 2021. P. 136–139. (In Russ.)

7. Lushnikov A. M. Digitisation of Labour Law and Labour Relations. Statute. 2022;10:28-37. DOI: https://doi.org/10.37239/0869-4400-2022-19-10-28-37 (In Russ.)

8. Smirnov D. A. Collective Bargaining Procedure: Topical Issues. In: Lushnikov A. M. (Ed.). The First Yaroslavl Legal Forum. Yaroslavl, 2021. P. 77–84. (In Russ.)

9. Trends in Labour Market Development in the Countries of the European Union. St. Petersburg: St. Petersburg University of the Humanities and Social Sciences Publ.; 2021. 200 p. (In Russ.)

10. Lyutov N. L. The Principle of Good Faith in Collective Bargaining and the Resolution of Collective Labour Disputes (Experience of Economically Developed Countries). Labour Abroad. 2001;2:126-139. (In Russ.)

11. Lushnikov A. M., Lushnikova M. V. Labour Rights in the 21st Century: Current State and Development Trends. Moscow: Prospekt Publ.; 2017. 272 p. (In Russ.)

12. Tarusina N. N., Lushnikov A. M., Lushnikova M. V. Social Contracts in Law. Moscow: Prospekt Publ.; 2017. 480 p. (In Russ.)

13. Goncharov G. A. (Ed.). The Economic Nature and Regulatory Mechanisms of Contemporary Social and Labour Conflicts. St. Petersburg: St. Petersburg University of the Humanities and Social Sciences Publ.; 2023. 264 p. (In Russ.)