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.

However, it is bound to happen in any workplace that is seeing an increase in volume of business and corresponding increase in number of employees. . . . → Read More: Setting up a labor union in Korea]]> For most, or maybe all, of top management in any country, a news that their employees started to set up a labor union in the workplace may not be an welcome news.

However, it is bound to happen in any workplace that is seeing an increase in volume of business and corresponding increase in number of employees.

This post is about a very basic information on labor union establishment in Korea based on Korean labor laws.

First, about the number of workers required to set up a labor union. Simply saying, it takes two persons to set up a labor union in Korea. Setting aside all other conditions, the small number of people required to set up a labor union seems to be a factor that encourages workers to easily resort to the creation of a labor union to solve any workplace problems they have in Korea. Other countries seem to require more persons than TWO for establishment of a union. For example, if I remember correctly, Australia requires 50 workers to set up a union. (Correct me, If I am wrong  

Second,  who is allowed by law to join a labor union? Definitely, not an employer. But not just an employer. Those who represent interests of an employer are also not allowed by law to join a union. For example, high-level managers, team chiefs, and especially managers or staff who work in the personnel department. However, there is no clear-cut divide on this matter. I often see a company where even team chiefs are members of its union. This is often the case with companies where balance of power between labor and management is broken or where managment did not pay sufficient attention and care to set things right.

Third, actual procedures of formally establishing a union. Korean labor law adopts an approach of registration-based establishment of a labor union. This means any labor union can be set up simply by submitting required papers such as union bylaws to the ministry of labor. No validation or voting procedures as in the United States.

Of course, the mere fact of union establishment is not a serious issue. What comes next, collective bargaining or strike, will be a real challenge for management. But that will need another post.

Demonstration against the import of American beef that is feared by the public as likely to cause Mad Cow disesase and incessant coverage by newspapers and broadcasting over the issue moved . . . → Read More: Korean labor unions getting realistic?]]> Almost every year, early summer in Korea has been a season of strikes and rallies by labor unions. So far, it seems like a different one this year. 

Demonstration against the import of American beef that is feared by the public as likely to cause Mad Cow disesase and incessant coverage by newspapers and broadcasting over the issue moved the presence of labor unions against so-called “business-friendly” labor policies of the government out of public attention.

While the upper-level unions, especially the Korean confederation of Trade Unions, are still sticking to confrontational approaches to labor relations, the individual labor unions of companies look moving to more realistic direction.

The moves illustrating such change of direction include wage concession, strike-free declaration, and letting employers to decide on wage increase or even accepting wage freeze.

Along with a statistical trend of decreasing strikes and working days lost, these actions of labor unions may be a sign of the future when Korean labor relations will be as mature as those of advanced countries.

Yesterday’s article from Dong-A ilbo covers details of these changes.

Some of the controversies over the foreign company’s strike was whether branch managers who have higher status than frontline staff can join . . . → Read More: Can branch managers join a labor union?]]> More than 100 days have passed since the strike at Allianz Life Insurance started. Last week, management of the company fired 87 branch managers for participating in illegal strike when they are supposed to side with management as senior managers.

Some of the controversies over the foreign company’s strike was whether branch managers who have higher status than frontline staff can join a labor union and whether the labor union with such managers as members is still a lawful union.

1. Can branch managers join a labor union?

Laws relevant to this issue can be found in the following text of the Trade Union and Labor Relations Adjustment Act (TULRAA) of Korea.

Article 2 (Definitions)
For the purpose of this Act, the definitions of terms shall be as follows: 

2. The term “employer” means a business owner, a person responsible for the management of a business or a person who acts on behalf of a business owner with regard to matters concerning workers in the business;

4. ….. an organization shall not be regarded as a trade union in the cases falling in any of the following categories:
(a)In case where an employer or other persons who always act in the interest of the employer are allowed to join it.

The problem with this definition of a person who is deemed as an employer and as such should not join a union is that it is vague enough to create confusion.

The Ministry of Labor does provide an example of ”a person responsible for the management of a business” such as chiefs of factories, departments, branches, and offices. However, as shown in the case of Allianz, the persons concerned can always say that they are not “responsible for the management of a business” but only following directions of top management, regardless of the truth of such statement.

When compared to the text of the National Labor Relations Act of the United States, the vagueness of the TULRAA is more visible.  According to the American act, a category of workers called supervisors cannot join a labor union and they are;

“Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (29 USC 152 (11))”

Actually, rulings made by Korean courts over eligibility of the so-called “employers”  for union membership have similar wordings as the text of the NLRA. But it would be much better for labor and management if there is a clear divide in written law over who can sit on which side of the bargaining table.. or maybe I am wrong. Labor unions may not want to see some of their potential members labelled away as employers.

2. Can a union with  ”employers as defined by the TULRAA” as members still be lawful?

The answer to the question is two-fold. Legally “NO”, actually “Quite possible”.

An often quoted court ruling over the question say that even if there are “employers” (e.g. senior executives, factory chiefs, branch managers) among union members, the union in question does not automatically lose its legitimacy as long as inclusion of such persons does not undermine independence of the union.

What the court ruling means is that, unless there is a hard evidence for independence of a union undermined by the presence of “employers” within the union, there is always a possibility for a labor union that has executives, directors, managers as union members.

So what should an employer do about this, if he/she has a such problem in one’s company?

If a labor union is still at the infancy stage, the best would be to check upon the union bylaw, and ask the labor ministry to order the union to correct the eligibility conditions so that any workers that fall under the “employer” category should be removed.

If a labor union has been around for a while, and if there is a conflict between labor and management over the presence of “employers” in the union?  This is what happened in Allianz Korea, and I guess they must have consulted some of the best legal brains in Korea to come up with a good way to handle the issue.

What did they do? They ordered the managers to withdraw from the union citing their status. When managers refused to do so, managment escalated the level of discipline step by step, and finally fired them.

Of course, I am not saying that the solution is good for the whole situation. We never know what the massive dismissal may trigger in the future.