Mandatory subjects

If a labor union asks management . . . → Read More: Subjects for collective bargaining]]> Korean labor law, more specifically “trade union and labor relations adjustment act (TULRAA)”, does not provide a detailed list of what can be submitted as subjects for collective bargaining. However, classification of bargaining subjects into three categories – mandatory, permissible, and illegal – can be made based on court precedents.

Mandatory subjects

If a labor union asks management to have collective bargaining on mandatory subjects, management cannot refuse to have bargaining without a justifiable cause. Refusal without such cause becomes unfair labor practice.

If CB on mandatory subjects reaches an impasse, the union can also request the Labor Relations Commission to provide mediation, and conduct strike after the mediation process is over.

In general, mandatory subjects are related to working conditions such as wage, working hours, holidays, leaves, workers’ compensation, and safety and health.

Permissible subjects

If a union request CB on permissible subjects, management can refuse to have the bargaining. Such refusal does not constitute unfair labor practice. Even if a negotiation comes to a deadlock, the union cannot resort to mediation process nor strike. Of course, management can choose to have CB on permissible subjects if it wants to.

Usually, subjects related to labor-management relations such as union activities, prior deduction of union dues, and full-time union officials fall under the category of permissible subjects.

Illegal (prohibited) subjects

Having collective bargaining or signing a collective bargaining agreement on illegal subjects are legally prohibited. Agreement on such subjects is ineffective.

The illegal subjects are, for examples, release of a criminally charged and detained worker, abolishment of legal retirement pay system, subsidy to a labor union, and subjects that infringe upon essential parts of management’s right to business and personnel management.

Employer’s rights to business management and personnel management and bargaining subjects

Business management rights refer to employer’s right related to hiring, relocation, performance appraisal, promotion and disciplinary actions. Business management rights include reorganization, business expansion, appointment of senior executives, M&A, business transfer, introduction of new production technologies or machines, and decision on production plan.

This is one gray area where disputes arise often between labor and management. Positions held by courts on this matter can be summed up as..

Rights to business management and personnel management are recognized as employer’s right to exercise their property rights that are protected by the Constitution. Therefore, decision making per se with regard to business management or personnel management is not mandatory subject for collective bargaining.

However, an issue of business management or personnel management can become subject for collective bargaining if it is closely related to working conditions of workers. CB on such issue should be carried out to the extent that the negotiation does not infringe upon essential parts of the employers’ right to business management or personnel management.