Ⅲ. Status of the Representative Bargaining Union

1. Authority and obligations of the representative bargaining union

As collective bargaining and collective action shall be implemented by the representative bargaining union according to the single bargaining channel system, the representative bargaining union has authority as the labor union’s party. Accordingly, the representative bargaining union has authority under and obligations to the Trade Union Act to independently conduct collective bargaining, conclude a collective agreement, and lead collective action, etc. The other labor unions cannot refuse the collective agreement concluded by the representative bargaining union, nor take steps that lead to independent collective action.

2. Duration of status of the representative bargaining union

(1) General principle
The representative bargaining union shall retain its status for two years, regardless of the effective period of the collective agreement.

(2) In cases where a new representative bargaining union has been determined
Since the effective period of the previous representative bargaining union has expired, the same representative bargaining union shall retain its status until such time as a new representative bargaining union is determined to renew an expiring collective agreement.

(3) In cases where a new representative bargaining union has not been determined
If the status of a representative bargaining union has expired, and a new one yet to be determined, the existing representative bargaining union shall retain its status as representative bargaining union in relation to implementation of the existing collective agreement until a new representative bargaining union is determined.

(4) In cases where a collective agreement is not concluded within one year
If a representative bargaining union has not concluded a collective agreement within one year since such determination was made, other labor unions may demand bargaining with the employer. Then, a procedure to determine the representative bargaining union agreement is initiated. The reason for this is because the representative bargaining union has not been able to conclude a collective agreement even though it has negotiated with the employer for one year. This may indicate that it has neglected to, or does not intend to properly exercise its bargaining representative authority, or has abused its authority.

Ⅳ. Duty of Fair Representation

The bargaining representative union and the employer shall have the duty of fair representation, which is to treat fairly and avoid discriminating against members of minority labor unions, participating in the procedure for determining the bargaining channel, or the labor unions themselves, without reasonable grounds. If the bargaining representative union and employer engage in discrimination, the affected labor union(s) may request the Labor Relations Commission to remedy such discrimination within three months from the date on which the act is committed. If the Labor Relations Commission recognizes that there has been discrimination without reasonable grounds, it shall issue an order to remedy such discrimination(Article 29-4 of the Act). One example of the failure to uphold the duty of fair representation is when a bargaining representative union paid union officers from a minor union a much lower rate for paid time-off hours than officers from its own union.

Ⅴ. Constitutional Court Decision on Bargaining Representative Unions

The Constitutional Court ruled that the system of determining the bargaining representative union is constitutional and declared the following: “Article 29-2 of the Trade Union Act regulates that the system for determining the bargaining representative union was designed to solve potential issues in the following areas: In cases where there are two or more labor unions coexisting in a business or workplace, as these labor unions exercise their bargaining rights respectively, problems that can realistically be anticipated include: hostility between those labor unions or disputes between the labor unions and the company; an increase in the costs associated with collective bargaining due to having to repeat negotiations in the same bargaining areas; management difficulties in preparing multiple collective agreements; and unreasonable differences arising out of the application of different working conditions for members of different unions who are all providing the same or similar work. The system of determining a bargaining representative union as mentioned above has resulted in restrictions of the collective bargaining rights of minority labor unions not selected as the representative union, requiring certain safeguards to minimize these restrictions. One of the safeguards introduced was the duty of fair representation stipulated in Article 29-4 of the Trade Union Act. This was designed to prevent discrimination against: a) minority labor unions not selected as the representative union(and who had participated in determining the bargaining representative unions) or b) their members by assigning the bargaining representative union and employer the duty of fair representation.”

Ⅵ. Legal Issues related to Permission for Multiple labor unions

1. Estimation of a business or workplace

The unit to be considered a single bargaining channel is a business or workplace. It is necessary to estimate whether the business is organically operated as a managing body itself, regardless of the workplace. The corporate entity as a business agent is a single unit, and so all workplaces or business departments in the entity’s corporation are regarded as a single bargaining unit. However, despite being a single corporation, if each workplace or each business department has authority to determine its working conditions, and if its personnel, labor management, and accounting have been separately operated, exception shall be made, and such individual workplace or business department shall be regarded as an independent bargaining unit.

2. Joining two labor unions (dual membership)

Joining two or more labor unions is an exercise of “the employee’s freedom to choose a labor union,” since the employee is free to organize or join such union(s). In cases where an identified person has joined two or more labor unions, calculation of the number of members in each union shall be determined as those who pay union fees.

3. Collective withdrawal from a labor union and division of its property

Should a single member or multiple members withdraw from a labor union, in principle, the labor union’s basic property and debts, and the collective agreement, are not transferred to the newly joined or organized labor union. Therefore, as a union member withdrawing from the labor union would lose any rights to the previous labor union’s property, and he/she cannot request any division of the property unless there exists a stipulated right to divide its property.


4. Effect of the phrase, sole bargaining body

The phrase, sole bargaining body, refers to the part of a collective agreement that states: “The Company shall acknowledge no other labor organizations, except for a particular labor union, as the exclusive body with the right to bargain for the sake of its union members.” This article is null and void as it violates Article 33(1) of the Constitution and Article 5 of the Trade Union Act by depriving other labor unions the right to negotiate with the consent of two exclusive parties.

5. Effect of agreement on union shop

Union shop refers to the part of a collective agreement that stipulates that the employee is hired on condition that he/she becomes a member of the labor union, which is the most typical means to force union membership on employees. In this case, when a new employee refuses to join the labor union within a certain period of time or chooses to withdraw his/her membership, the labor union can request that the company dismiss that employee and the company shall comply with the union’s request. However, starting July 1, 2011, when permission for multiple unions comes into effect, the company shall not put the employee in any disadvantageous position in terms of status, on the grounds that the employee has withdrawn from the labor union to organize a new one or join another existing union.