I.        Concept

Article 33 Paragraph 1 of the Constitution stipulates that workers have the right to independent association, collective bargaining and collective action in order to improve their working conditions. These three labor rights are basic rights of the people guaranteed by the Constitution. The Trade Union and Labor Relations Adjustment Act (hereafter, the Labor Union Act) mentions these three labor rights and provisions on unfair labor practices. It describes in detail what amounts to violation of each of the three labor rights, stipulates the procedure for applications for remedy against unfair labor practices through the Labor Relations Commission, and allows criminal punishment for unfair labor practices through the Labor Office. According to the courts, a system to deal with unfair labor practice was specifically established by the Labor Union Act to quickly normalize labor relations by securing the three rights of labor, and preventing and stopping the actions of employers that destroy the order of collective labor relations.248)
Unfair labor practices can be said to infringe on the three labor rights, and are divided into five types of actions (as described in Article 81 of the Labor Union Act) by the employer and any person in a position equivalent to employer that disadvantage the union or its members.

II.        Criteria for Judging Labor Practices as Unfair

There are three elements that must be present for a labor practice to be deemed unfair: it should include actions by the employer, at least one of the five items described in Article 81 of the Labor Union Act should exist, and the employer must intend to engage in the unfair labor practice.

1.        Actions by the employer
Unfair labor practices are a result of actions of an employer. In the Labor Union Act, an employer is excluded from membership in a labor union, is someone in charge of managing the business, someone acting on behalf of the employer in matters relating to the employed workers, or someone always acting specifically in the employer’s interest (Articles 2 and 4). Here, the acts by “someone acting on behalf of the employer in matters relating to the employed workers” refer to matters such as determining the working conditions of workers, managing personnel, salaries, welfare, and labor, or giving orders or supervising work—a person who has been given certain powers and responsibilities by the employer. “Someone always acting specifically in the employer’s interest” refers to
① those directly participating in labor relations decisions such as personnel management, salary, disciplinary action, auditing, and labor management of workers, or ② those working to implement the employer’s plans and policies for employment relations, and
has the authority to handle confidential matters.249)
Even if a worker who does not fall within the scope of employer follows the employer’s instructions or acts specifically under the tacit approval of the employer, acts that obstruct the organization or operation of the union must be regarded as an employer’s acts.250) However, if an ordinary worker personally engages in unfair labor practices that infringe on the three labor rights, it cannot be regarded as an unfair labor practice by the employer.

2.        Five types of unfair labor practice
① Disadvantageous treatment due to labor union activity: Dismissal or unfavorable treatment of a worker on the grounds that he/she has joined or intends to join a labor union, or has attempted to organize a labor union, or has performed any other lawful act for operation of a labor union (Infringement of the right to organize);
② Anti-union contract: Dismissal or unfavorable treatment of a worker is written into the contract for joining or intending to join a labor union, or attempting to organize a labor union, or performing any other lawful act for operation of a labor union (Violation of the right to organize);
③ Refusing or neglecting to engage in collective bargaining: Refusing or delaying execution of a collective agreement or other collective bargaining with the representative or other person authorized by the labor union, without justifiable reason (Infringement of the right to collectively bargain);
④ Domination of, interference in, or subsidizing operating expenses for labor union activities: Dominating or interfering in the organization or operation of a labor union by workers, and paying wages to full-time officers of a labor union or financially supporting labor union operations (Violation of the right to organize);
⑤ Disadvantageous treatment for reporting on collective actions or unfair labor practices: Dismissal of workers or acts against their interest on the grounds that they have participated in justifiable collective activities, or that they reported to or testified before the Labor Relations Commission the fact that the employer has violated the provisions of this Article, or that they
have presented other evidence to the relevant administrative agencies (Violation of the right to take industrial action);

3.        Intention to engage in unfair labor practice
In order to judge a labor practice as unfair, it must be done with a clear intention by the employer to engage in what he/she knows is unfair, such as an employer intentionally disadvantaging a worker for his/her legitimate union activities. According to a related court ruling, “Whether an employer’s conduct falls under the unfair labor practices stipulated in the Labor Union Act is determined after comprehensively reviewing all circumstances that can infer whether the employer intends to engage in unfair labor practice.”251)