2. Procedural requirements

Industrial actions are legal only if they are in accordance with the timing requirements and procedures under the law. However, the purpose of the timing requirements and procedures for industrial action are to provide opportunities to avoid industrial actions by allowing preventive measures to be taken by the parties, to predict when industrial actions will be taken, and to allow them to take place.
Industrial actions must start after the employer refuses the labor union’s attempts at reaching a collective agreement on substantial demands related to improving working conditions or when the employer rejects such demands during collective bargaining. As long as there are no special cases, industrial actions shall follow the appropriate procedures in accordance with the Trade Union Act: decision-making process by workers’ secret and unsigned vote, preceding adjustment procedures, and reporting of the occurrence of an industrial action.

(1) Voting by union members

Before the labor union conducts industrial action, it shall undertake a democratic decision-making process within the union. Thus, the labor union shall not conduct industrial actions unless decided on by a majority of union members by direct, secret, and unsigned ballot.
The legal provision requiring that an industrial action shall be brought to a vote by the union membership is intended to promote independent and democratic operation of the union and to ensure that the union is prudent enough in making any decision that might bring disadvantages to the union members involved. No industrial action that was taken without the requirement of voting being fulfilled can be justified, unless it is objectively established that there was an unavoidable reason to omit the required procedure.

(2) Adjustment of labor disputes

Adjustment of labor disputes refers to a process intended to help resolve disagreements between the parties to collective bargaining. Mediation means that a mediator, who is a third party, gives a proposal to solve the labor dispute, which the parties to the labor dispute concerned shall review. However, the parties are not bound to accept the proposal. Arbitration means that an arbitrator, who is also a third party, gives a proposal to solve the labor dispute, which the parties to the dispute concerned shall accept to reach an agreement.

1) Mediation
Upon initiating a labor dispute, one party to the dispute shall notify the other party of it in writing. No industrial action shall be permitted without completing adjustment procedures of mediation. This shall not apply in cases where adjustment procedures are not completed within an established period of time, or where arbitration is not made within an established period of time.
According to Article 54 of the Trade Union Act, mediation shall be completed within ten days for general businesses, or within fifteen days for public services, after a request for mediation. The period of mediation may be extended up to no more than ten days for general businesses, and no more than fifteen days for public services.
The mediation committee within the competent Labor Relations Commission shall mediate the labor dispute brought before it. The mediation committee is made up of three commissioners of the Commission: one representing the employer, one the labor force, and one the public interest. The mediation committee or the single mediator shall hear the opinions of both parties to the labor dispute and make fact-finding investigations to map out a mediator’s proposal, and shall recommend that both parties to accept it.
If the mediator’s proposal is accepted by both parties, it shall have the same effect as a collective agreement. If the mediator’s proposal is not accepted by both parties, the mediation committee shall notify the parties that the mediation procedure is ended. Then, arbitration shall commence if the parties have agreed on that. If there is no such agreement, the parties may take industrial action.

2) Arbitration
Industrial action shall not be implemented for fifteen days from the date when a labor dispute is referred to arbitration. It shall begin:
① When both parties concerned request arbitration; or
② When either party requests arbitration in accordance with the provisions of the collective agreement.
An arbitrator, who is also a third party, gives a proposal to solve the labor dispute, which the parties to the dispute concerned shall accept to reach an agreement. Arbitration is carried out by the arbitration committee within the Labor Relations Commission. A finalized arbitration award shall have the same effect as a collective agreement.

(3) Suspension of industrial actions during emergency adjustment

The Minister of Employment and Labor may decide to conduct an emergency adjustment of any industrial action, in cases that are related to public services or are likely to impair the national economy or endanger the welfare of the general public owing to the vast extent and unique characteristics of its effects. If the Minister of Employment and Labor decides to conduct an emergency adjustment, he shall first hear the opinion of the chairman of the National Labor Relations Commission.
When the decision to conduct an emergency adjustment is publicly announced, the parties concerned shall immediately suspend any industrial action, and no industrial action shall resume until thirty days have passed from the announcement date of the decision.