Ⅰ. Concept

The Mediation Committee refers to a committee set up to facilitate public mediation that both parties shall go through before the labor union takes industrial action. The term labor disputes in the Trade Union Act means any controversy or difference arising from disagreement between the employer and the labor union concerning the determination of terms and conditions of employment such as wages, working hours, welfare, dismissal, or other treatment, etc. Accordingly, the Mediation Committee in the Labor Relations Commission shall deal with disputes concerning each party’s interests, but disputes related to each party’s rights shall not be subject to bargaining or mediation procedures.

Ⅱ. Composition of the Mediation Committee

The Mediation Committee shall be composed of three members(an employer representative, employee representative, and a public interest representative). The Mediation Committee members shall be designated by the Chairperson of the Labor Relations Commission from among members of the Labor Relations Commission concerned so that employers, workers, and the public interest are represented. The employee representative shall be chosen from a list recommended by the employer, and the employer representative shall be chosen from a list recommended by the labor union. However, in cases where a list of recommended Mediation Committee members is not submitted within three days prior to a meeting of the Mediation Committee, the Chairperson may designate the members him/herself. The Chairperson of the Mediation Committee shall be the public interest representative. Special Mediation Committees shall be composed of three public interest representatives.

Ⅲ. Procedures for Mediation

1. Mediation activities

The Mediation Committee or a single mediator, as the case may be, shall specify a date for the parties concerned to appear so as to verify the main points of their respective claims. The Chairperson of the Mediation Committee may restrict attendance at the hearing to the parties concerned and witnesses. The Mediation Committee shall prepare a proposal to be presented to the parties concerned, with recommendation for their acceptance. If the Mediation Committee determines that further proceedings are not warranted due to the parties’ refusal to accept the proposal, it shall terminate mediation and notify the parties concerned. If an application for mediation is determined as unsuitable for mediation or arbitration, the Labor Relations Commission shall inform the applicant of the reasons for rejection of the application and other possible courses of action(Administrative Order).

2. Interpretation and implementation of the Mediation Committee proposal

If the parties concerned, after accepting the Mediation Committee proposal, do not agree on its interpretation or implementation, they shall request the Mediation Committee to provide clarity. Upon receiving such a request, the Mediation Committee shall clarify the measures within seven days of the date of receipt of such request. None of the parties concerned shall conduct industrial action on issues for which clarity on interpretation or implementation has been requested, until such clarity is rendered by the Mediation Committee.

3. Effect of Mediation Committee proposal

If the parties accept the Mediation Committee proposal, all members of the Mediation Committee shall prepare the mediated agreement in writing, and sign or seal it together with the parties concerned. The labor disputes shall be considered resolved, and the mediated agreement shall have the same effect as a collective agreement. Clarity on the interpretation and implementation measures rendered by the Mediation Committee shall have the same effect as an arbitration ruling.




Ⅳ. System Preceding Adjustment (Cooling-off Period)

1. Related articles


Article 45 (System Preceding Adjustment)
② No industrial action shall be conducted without completing adjustment procedures as referred to in Sections 2 through 4 of Chapter 5; Provided that this shall not apply in cases where adjustment procedures are not completed within the period as provided for in Article 54 or where an arbitration award is not made within the period as provided for in Article 63.
Article 54 (Period of Mediation)
① Mediation shall be completed within ten days for general businesses, or within fifteen days for public-service businesses, after a request for mediation as referred to in Article 53 is made.
Article 63 (Prohibition against Industrial Actions during a Period of Arbitration)
Industrial actions shall not be conducted for fifteen days from the date when an industrial dispute is referred to arbitration.
Article 91 (Penal Provisions)
A person whose actions fall under any of the following subparagraphs shall be punished by imprisonment for not more than one year or by a fine not exceeding ten million won:
1. Violations of the main sentence of Article 45 (2);



2. Mediation process

(1) In resuming collective bargaining after ceasing industrial action, are new adjustment procedures required?

While a labor union is taking industrial action after completing legitimate procedures like adjustment procedures, it provisionally and only partially agrees on the content of the collective agreement but its union members return to work. At that time, when the labor union continues to negotiate the not-yet-agreed-upon parts of the collective agreement, if details of the industrial dispute have not changed between the previous mediation time and the current mediation time of the industrial dispute, the labor union does not have to complete any additional mediation processes. However, if there are additional items added in the course of negotiation after the union returns to work, the labor union shall complete new adjustment procedures.

(2) In cases where the labor union put forth a new demand and took industrial action, it had to complete adjustment procedures again in advance.

When a certain labor union resumed a strike, collective bargaining for wage that the labor union proposed was not included in the first application for mediation for industrial disputes in October 1997. Accordingly, as the two cases are hard to regard as identical in industrial disputes, the two parties shall negotiate new disputes sufficiently first, and then, if there is no agreement, complete adjustment procedures for industrial disputes.

(3) When the labor union requested adjustment procedures, proposed items were not acknowledged as objects of adjustment. In this case, industrial action cannot be justifiable if it is conducted without completing adjustment procedures.

The Mediation Committee shall commence mediation without delay when any one of the parties concerned submits a request for adjustment of an industrial dispute. However, if the items submitted for adjustment were not acknowledged as objects of adjustment, the Mediation Committee shall inform the concerned parties of the reason for rejection and other problem-solving methods in accordance with Article 24(2) of the Enforcement Decree of the Trade Union Act. If the Mediation Committee reviews whether or not the case belongs to industrial disputes, finds the case cannot be an object for adjustment, and informs the parties of other problem-solving methods, such as independent bargaining procedures for both parties, the labor union shall be viewed as not having completed adjustment procedures, in accordance with Article 45(2) of the Trade Union Act.

(4) If a mediation proposal was suggested but not accepted by both parties, the labor union can begin industrial action. In this case, it is regarded that the adjustment procedures have been completed.

One party applied for adjustment concerning implementation of a monthly pay system and the Mediation Committee suggested a mediation proposal. However, when the two parties could not reach agreement during the mediation period, adjustment procedures are regarded as having been completed.

(5) In cases where a strike was stopped but later resumed, shall the labor union complete adjustment procedures?

The goal of an industrial action at the time of application for mediation was not yet achieved. If there is no objective reason to deny the identity of the industrial actions between the first strike and the later strike, the labor union does not have to complete adjustment procedures and take a vote of the union members again.

(6) In cases where the labor union returned to work after a strike and then resumed the strike without completing additional adjustment procedures, is this legally acceptable?

A labor union went on strike from February 28 to June 1, 2001, then returned to work and continued collective bargaining. When the two sides could not reach agreement, the labor union resumed the strike on August 20, 2001, without completing additional adjustment procedures. Whether the union completed additional adjustment procedures or not shall be determined based upon recognition of legitimacy for industrial actions between the time of its first application for mediation and the time of the resumed industrial action.




3. Administrative guidance

(1) Items subject to adjustment procedures for industrial disputes

1) According to Article 2(5) of the Trade Union Act, “the term ‘industrial dispute’ means any controversy or difference arising from disagreements between a labor union and an employer or employers’ association with respect to the determination of conditions of employment, such as wage, working hours, welfare, dismissal, and other issues. In this case, the disagreements refer to situations in which the parties to labor relations are no longer likely to reach an agreement by means of voluntary bargaining even if they continue to make such an attempt.”

2) Whether an individual item is subject to adjustment procedures or not shall be determined in accordance with concrete actual practices, such as practical bargaining situations. If one party has requested collective bargaining for wage but there has not been any negotiation between the parties and no bargaining proposal has been suggested, this case cannot be seen as a disagreement(namely, an industrial dispute) between the labor union and the employer with respect to the determination of conditions of employment. It is therefore hard to consider this request as subject to adjustment procedures.

(2) Since an application for mediation was submitted in a situation where there had been no sufficient negotiation between the labor union and the employer, adjustment procedures could not be completed because there had been no identical industrial disputes arising from disagreements. In this case, the mediation procedures cannot satisfy the criteria for justification.

The “disagreements” applicable to mediation for industrial actions under the Trade Union Act refer to “situations in which the parties to labor relations are no longer likely to reach an agreement by means of voluntary bargaining even if they continue to make such an attempt.” This clear definition is designed to ensure sufficient bargaining before completing adjustment procedures. As the labor union requested adjustment for its proposal to collective bargaining without there having been mutual efforts to reach agreement, this situation cannot be regarded as an industrial dispute coming from disagreement. In this case, although the labor union has followed required procedures, such as a yes/no vote of its members, it cannot satisfy requirements for deeming industrial disputes and industrial actions justifiable.

(3) Procedural justification for an industrial action after administrative guidance from the Mediation Committee

If the Mediation Committee acknowledges that bargaining items cannot be objects for mediation in the adjustment of industrial disputes but the labor union began industrial action without additional adjustment procedures, this is a violation of Article 45(2) of the Trade Union Act(system proceeding adjustment).

(4) An industrial action is not illegal after administrative guidance from the Mediation Committee in relation to ‘system proceeding adjustment’.

It is not illegal to begin a strike right after completion of a mediation period when the labor union applied for adjustment for industrial disputes but mediation was not accepted or terminated.

(5) Handling an application for mediation when it was requested without sufficient bargaining between the parties.

Article 2 of the Trade Union Act regulates that the term “industrial disputes” means situations in which the parties to labor relations are no longer likely to reach an agreement by means of voluntary bargaining even if they continue to make such attempts. Accordingly, if both parties to labor relations have not conducted sufficient negotiations, it is hard to regard the situation as an industrial dispute. In cases where there is application for mediation according to Article 53 of the Trade Union Act, the Labor Committee shall hear the opinions of the two parties. If the situation cannot be acknowledged as an industrial dispute, the Labor Committee shall suggest another problem-solving method, like recommending independent negotiation in accordance with Article 24(2) of the Enforcement Decree of the Trade Union Act.

(6) After the Labor Committee determined a termination of adjustment due to the absence of the parties at a mediation meeting, an industrial action taken without completing additional adjustment procedures is in violation of Article 45(2) of the Trade Union Act.

According to Article 45(2) of the Trade Union Act, industrial action shall be taken only after completing adjustment procedures. Also, Article 53 and 58 of the Act regulate that the parties related shall participate in adjustment procedures in good faith, attend mediation meetings, and confirm their opinions. In cases where the Labor Committee determined “a termination of mediation process” due to the absence of the parties at a mediation meeting, adjustment procedures were not completed. Accordingly, industrial action taken without completing adjustment procedures is in violation of Article 45(2) of the Trade Union Act.