Ⅲ. Collective Labor Relations

1. Guarantee of the Three Labor Rights

The purpose of establishing a union is to improve working conditions through exercise of the three labor rights. Working conditions refers to the details of labor contracts such as wages and working hours, while other economic and social status of workers refers to the overall living profits of workers including working conditions such as welfare and social security within the company.
Foreign workers cannot afford to improve working conditions at the current minimum wage unless they ask for a wage increase through collective activities of the union. Therefore, to improve their working conditions, it is necessary to establish labor unions and engage in collective activities. Foreign workers are also entitled to the right to independent association, the right to collective bargaining, and the right to collective action(the three labor rights) guaranteed under Article 33(1) of the Constitution. Foreign workers can join a labor union or create a union consisting only of foreigners.
Until a recent ruling, the Ministry of Employment and Labor stated that it was impossible for illegal workers to establish or join a labor union. On April 24, 2005, 91 foreign workers living in Seoul, Gyeonggi, and Incheon sat up the Seoul Gyeonggi Incheon Migrant Workers’ Union and submitted a report of establishment to the Seoul Regional Labor Office, but their report was rejected. Then, the Migrant Workers’ Union filed a lawsuit against the Labor Office in 2005 for its rejection, but the regional court dismissed their lawsuit. However, the Appeal Court and the Supreme Court canceled that dismissal.
The lawsuit against the rejection of union establishment was finally decided by the Supreme Court on 25 June 2015 along with the decision of the High Court that a union of foreign workers which included illegal workers was acceptable as a legitimate labor union so as to guarantee the three labor rights. The Supreme Court stated, According to the former The Trade Union Act, workers are those who provide work under subordinate relations with others and live on wages in return. This should include not only those employed by a particular employer, but also those who need the three labor rights protected, including those who are temporarily unemployed or looking for work. It recognizes the broader concept of workers in the Trade Union Act than that found in the Labor Standards Act, and recognizes those living on wages, temporary unemployed, and even job seekers that do not belong to a specific workplace.
Regarding violation of the Immigration Act, the Supreme Court stated, The Immigration Act is to prohibit the actual act of hiring foreigners without employment qualifications. It is hard to prohibit legal effects such as rights under labor laws accorded to workers in a working relationship already established. Even though a foreign worker is an illegal worker, the court has confirmed that they have the right to enjoy workers’ rights under The Trade Union Act.

2. Related issues

Foreign workers can also seek to improve their working conditions by forming labor unions and signing collective agreements through collective bargaining. Indeed, it is not easy for individual foreign workers to receive remedy for disputes with an employer. Language is only part of the problem. The real issue is often the vulnerability to disadvantageous retaliation by that employer. One The Trade Union Activity is to allow foreign workers to protect themselves. For this reason, it is a justifiable solution for foreign workers to establish a labor union to secure and improve working conditions. In fact, some other foreign workers(native English speakers) established a labor union in Avalon Institute in Yeonsu-gu, Incheon in September 2009, and secured better working conditions through collective bargaining. In November that year, when six native English instructors received late overtime pay from their employer upon orders from the Ministry of Employment and Labor, the employer of the school fired the lead instructor. As a result, concerned about their own job security, the remaining five English instructors set up a labor union to guarantee fair treatment. The labor union of these English instructors was established under the protection of the Trade Union Act in Korea, and collective agreements were also signed through collective bargaining. However, the institute recruited new native English instructors on the premise that they would not join the labor union, and the original instructors’ contract periods expired eventually, so the number of union members gradually decreased to none. Looking at the process of establishment, activity, and extinction of the native instructor’s union, it is confirmed that the right to exercise the three labor rights is difficult in reality for foreign workers.
There has been much debate about the recognition of unions established for illegal foreign workers. The logic behind such recognition is that, first, foreign workers without qualifications for employment can also exercise the three labor rights to improve working conditions because they are still workers under the Trade Union & Labor Relations Adjustment Act(The Trade Union Act). Second, under the Immigration Act, the determination of an illegal stay is only for enforcement purposes, and the basic rights of foreign workers must not be restricted. Third, restricting the three labor rights for illegal workers can be said to induce illegal employment of foreigners and human rights violations and abuses. The logic of not recognizing a labor union of illegal workers or restricting the three labor rights is as follows. First, a labor union is to improve working conditions through collective bargaining. Illegal workers cannot improve their working conditions because they are not guaranteed by law. Second, since the activities of labor union officers(if they are also illegal workers) are restricted to exercise of the three labor rights, it can be said that the activities of unions can be related to political movements requiring revision of the Immigration Act. Third, it is doubtful whether a union of illegal workers can be protected by the Trade Union Act, while it is possible for illegal workers to join existing Korean workers’ unions. So even if unions of illegal workers are not recognized, such workers can still join and be active in an existing union.
The Supreme Court recognizes the right of a union of illegal foreign workers to exist because illegal workers are still workers as defined by the Trade Union Act, regardless of whether they are foreigners, or whether they are eligible for employment.

3. Evaluation

Exercise of the three labor rights is the only way for foreign workers to improve their working conditions. The law sets minimum standards only, requiring union activity for wage hikes or improvements to working conditions. Foreign workers can, of course, establish labor unions, demand collective bargaining and go on strike to improve working conditions. Even illegal workers can establish and join labor unions. However, there are restrictions on behavior for illegal workers as they are violating current immigration law, and labor union activities may be limited by the political activities of foreign workers. Nevertheless, foreign workers need to be able to exercise their labor rights as their working conditions will not improve without a union.