Article 71 (Scope of Public Services, etc.)
① “Public service” under this Act means a service described in any of the following subparagraphs, which is indispensable to the daily lives of the general public or has great influence on the national economy:
1. Regular line public transportation services;
2. Water, electricity, gas supply, oil refinery and supply services;
3. Public health and medical services and blood supply services;
4. Banking and mint services;
5. Broadcasting and telecommunication services.
② “Essential public service” under this Act means any service described in the following subparagraphs, which falls within the category of public services under paragraph (1) and whose stoppage and discontinuance may endanger the daily lives of the general public, or may undermine the national economy considerably, and whose replacement presents a grave hardship:
1. Railroad services, inter-city railroad services, and aviation services;
2. Water, electricity, gas supply, oil refinery and supply services;
3. Hospital and blood supply services;
4. The Bank of Korea;
5. Telecommunication services.

Article 42-2 (Restrictions on Industrial Action in Minimum Services to Be Maintained)
① The term “minimum services to be maintained” in this Act refers to those services among essential public services prescribed in Article 71 (2), which, if suspended or discontinued, could remarkably endanger the lives, health, physical safety or daily lives of the public and are prescribed by Presidential Decree.
② No act of stopping, discontinuing or obstructing the proper maintenance and operation of the minimum services to be maintained shall be carried out as legitimate industrial action.

Article 42-3 (Agreement on Minimum Services to Be Maintained)

Article 42-4 (Decision on Maintenance and Levels of Operation of Minimum Services to Be Maintained)

Article 42-5 (Industrial Action by Decision of Labor Relations Commission)

Article 42-6 (Designation of Workers for Minimum Services to Be Maintained)

Article 43 (Restriction on Hiring by Employer)
① No employer shall hire persons who are not related to their business operations, or use replacements during a period of industrial action so as to continue works which have been stopped by industrial actions.
② No employer shall, during a period of industrial action, contract or subcontract out work which has been suspended because of the industrial action concerned.
③ The provisions of paragraphs (1) and (2) shall not apply to the employer of essential public services who hires persons unrelated to the business concerned or use replacements, or contract or subcontract out the work only during a period of industrial action.
④ In the case of paragraph (3), an employer may hire or use replacements or contract or subcontract out the work as long as the proportion of the replacement workers do not exceed 50/100 of strike participants of the business or workplace concerned. In this case, method to calculate the number of strike participants, etc., shall be prescribed in the Presidential Decree.


Ⅰ. Essential Public Services and Minimum Services to be Maintained

Article 71(2) of the Trade Union Act refers to essential public services as meaning any service described in the following subparagraphs, which fall within the category of public service under paragraph(1) and whose stoppage and discontinuance may endanger the daily lives of the general public, or may considerably undermine the national economy, and whose replacement presents an undue hardship:

① Railroad services, inter-city railroad services, and aviation services; ② Water, electricity, gas supply, oil refinery and supply services; ③ Hospital and blood supply services; ④ The Bank of Korea; ⑤ Telecommunication services.
Prior to 2008, in a case involving an essential public service, the right to strike was totally limited through arbitration by a special labor commission. As a complementary measure, the Trade Union Act introduced on January 1, 2008 abolished the arbitration system for mandatory public services and instead introduced a mandatory maintenance service system for essential public services.

The Trade Union Act stipulates that the term minimum services to be maintained in the Act refers to those essential public services prescribed in Article 71(2), which, if suspended or discontinued, could remarkably endanger the life, health, physical safety or daily lives of the public and are prescribed by Presidential Decree(Article 42-2, paragraph 1). Furthermore, stopping, discontinuing or obstructing the proper maintenance and operation of the minimum services to be maintained shall not be carried out as a legitimate industrial action(Article 42-2, paragraph 2). Those in violation of this shall be subject to imprisonment for up to 3 years or a penalty of up to KRW 30 million(Article 89, paragraph 1). The parties to labor relations shall conclude an agreement in writing that stipulates the levels of minimum services to be maintained and provided, the specific work designated as minimum service, the necessary number of workers, etc., in order to ensure the proper maintenance and operation of minimum services during a period of industrial action. In this case, both parties shall sign or seal an agreement on minimum services to be maintained(Article 42-3). Therefore, unions will be held liable for illegal disputes in cases where they do not engage in agreement on minimum services to be maintained.

Ⅱ. Criteria for Classification of a Business as Providing an Essential Public Service

In order for a specific business to be an essential public service in the interpretation of the provisions related to the Trade Union Act, ① the public service pursuant to Article 71(1) of the Act shall meet the formal requirements under the provisions of Article 71(2); ② the suspension or abolishment of the work shall have substantial repercussions that significantly jeopardize the daily lives of the public or that significantly impede the national economy and are not easily replaceable.
Formal requirements are in accordance with Annex 1 of the Enforcement Decree to the Trade Union Act: Each minimum service to be maintained per essential public service. Substantive requirements are: ① to become an essential public service, the suspension or abolishment of work due to industrial action must seriously endanger the daily lives of the public or hinder the national economy; ② since the suspension or abolishment of such service should concern a business having a large effect on the daily lives of the public or the national economy, the service, the production scale of the goods, and the service supply target should be targeted to the general public; ③ the substitution of workers should not be easy, so that it is difficult to substitute other similar companies in consideration of production and service scale. In other words, if a substitute can easily be accomplished through canceling an outsourcing contract, it should be considered that there is a possibility for substitution.
Therefore, whether the service is an essential public service or not is decided with the following condition: it should meet both of the formal and substantial requirements mentioned above.

Ⅲ. Employee Replacement for Essential Public Services

1. Concept

Article 43(3 and 4) of the Trade Union Act regulates that the provisions of paragraphs(1) and(2) shall not apply to an employer of essential public services who hires persons unrelated to the business concerned or uses replacements, or contracts or subcontracts out the work only during a period of industrial action. In this case, the employer may hire or use replacements or contract or subcontract out the work as long as the proportion of the replacement workers does not exceed 50/100 of the strike participants of the business or workplace concerned(implemented January 1, 2008).

2. Requirements

Essential public services are those public services where stoppages and discontinuance may endanger the lives of members of the general public, or considerably undermine the national economy, and whose replacement presents undue hardship: ① Railroad services; ② Water, electricity, gas supply, oil refinery and supply services; ③ Hospital services; ④ The Bank of Korea; and ⑤ Telecommunication services.
Since compulsory mediation for essential public services has been abolished, all personnel filling jobs in essential public services(besides the minimum to be maintained) are entirely permitted to take industrial action. However, in order to protect the public interest, partial employee replacement is permitted as long as the number of replacement workers(who can be new hires, existing workers, or workers used by a company receiving a contract or subcontract for the work) does not exceed 50/100 of the strike participants of the business or workplace concerned.

3. Effect

In cases where industrial action is taken in essential public services, employee replacement is permitted on a limited basis to positively minimize the risk to the general public or the national economy. These exceptions, such as the minimum services to be maintained and permitting employee replacement, were introduced in return for abolishment of the mandatory mediation system and as a way to provide a balance between labor protections and the public interest.

Ⅳ. Determining whether the Post Office Parcel Delivery Service is an Essential Public Service

Since the postal service of the Post Office is regarded as an essential public service, the parcel delivery service can be regarded as a minimum service to be maintained in an essential public business. It is necessary to examine whether the parcel delivery service is in fact a minimum service to be maintained for fear of jeopardizing the daily life of the people.

The work of the Post Office is an essential public service. There could however, be different views on whether or not the Post Office’s parcel delivery service is also an essential public service. If it belongs to an essential public service, its labor union is restricted in its right of collective action as a union, should secure minimum services need be maintained.

The Post Office is considered part of the telecommunication business as an essential public service and corresponds to the minimum services to be maintained. According to Annex 1 of the Enforcement Decree(Minimum Services to be Maintained per Essential Public Service): “C. Universal postal services in accordance with Article 14 of the Post Service Act; D. Extra postal services in accordance with Article 15 of the Post Service Act, such as content-certified mail and special delivery service. Here, the universal postal service is composed of “① a letter-post item, which weighs not more than two kilograms; ② a postal parcel, which weighs not more than 20 kilograms.”

In Article 1-2 of the Post Service Act, the term “letter-post items” means any item with delivery intention such as a letter, currency(including a remittance notice) and small packet items. The term postal parcel means a package which contains items other than letter-post. At one time the majority of postal delivery service was correspondence, but recently, small parcel delivery has been increasing rapidly. Nonetheless, even if there are a large number of postal parcels in everyday mail, this is directly serving the people, and since it is impossible to substitute the postal services, they must be recognized as an essential public service.

However, recently many private parcel delivery companies have engaged in delivery service, and people now have a choice of delivery companies. In particular, parcel delivery personnel in the Post Office are commissioned only for the delivery of postal parcels. Therefore, as parcel delivery service is very easily replaced by other private companies, it is hard to designate the postal parcel delivery service as an essential public service.