LABOR CASES

Labor Union

Establishment and Operations of the Labor Union


I. Establishment of the Labor Union

The labor union in the Labor Union Act shall be equipped with substantial and formal requirements in order to be established effectively. (April 21, 2005, Seoul Administrative Court, 2004 guhap 35536)
The labor union shall be equipped with substantial requirements, which contain characteristics of subject, independence, purpose and association. Although the labor union is equipped with substantial requirements, any person who intends to establish a labor union in the Labor Union Act shall submit a report of establishment, together with the bylaws, to administrative agencies such as the Minister of Labor or the Special Metropolitan City Mayor, Metropolitan City mayors, and Provincial governors, and then obtain certificates of report of establishment from the administrative agencies. When a labor union has delivered the certificates of report, it is construed as having been established at the time when the Minister of Labor receives the report. Generally, although the Labor Union Act guarantees the freedom to set up labor unions, the fundamental reason that the Labor Union Act requires a report on union establishment lies in the need of the relevant authorities to protect and guide labor unions to ensure that labor unions are organized into an effective and orderly system and operates as an independent and democratic organization.


Those who lost their eligibility for labor union membership due to a change in their position can organize a labor union. (Sep 1, 2003, Nojo 68107-452)
If employees lost their eligibility for existing labor union membership due to a change in position, they can establish a new labor union in cases where they are not part of Article 2 of the Labor Union Act, which states the ‘status of an employer or a person representing the interest of the employer’ and that the membership of the new labor union does not overlap with the existing labor union.”


Employees that do not come under the scope of the existing union membership can establish a new labor union. (Oct 1, ’02, Nojo 68107-767)
As the labor union organized in a specific business (workplace) applies to the scope of union membership for 3rd grade position or lower according to its bylaws, employees with 2nd grade position or higher are clearly distinct from the scope of its membership. If employees with 2nd grade position or higher have not joined an industrial, regional, and/or occupational union and does not fall under item (a) of subparagraph 4 of Article 2, which states that ‘an employer or other persons who always act in the interest of the employer’, they can establish a new labor union within their own scope.

Unlike the existing aviation labor union, the new labor union comprised only of aircrew does not belong under the category of plural labor union. (Nov 12, 2004, Supreme Court 2001 do 8643)
As soon as the aircrew deviated from policeman status, they established a labor union as an employee association, and then started an additional collective bargaining with Aviation Company A concerning the working conditions of the crew. During and after this incident, the crew could not be seen to be included in the Company A’s aviation labor union. The crew could take the labor union activities freely just right after they deviated from policeman status. However, the statements: “just because of the reason that the Company A’s aviation labor union did not exclude the aircrew in its membership stipulated in its bylaws, the crew can join the aviation labor union only and cannot be allowed to establish a new labor union” violate the labor union’s autonomy and democracy. So, the aircrew can legitimately establish their own labor union in Aviation Company A.


II. Admission of the Labor Union

It is not justifiable to prohibit the former union member from rejoining the union. (May 22, 2002, nojo 68107-452)
1. To qualify for union membership, union members shall be the employees stipulated under Item 1 of Article 2 of the Labor Union Act, shall not fall under Item 4(a) of Article 2 of the Act, which states the ‘status of an employer or a person representing the interest of the employer’, and shall be determined autonomously by the labor union’s bylaws.

2. According to Article 5 of the Labor Union Act, employees shall be free to join a labor union or leave it. The joining procedures shall be stipulated in the bylaws of the labor union concerned. In case where the labor union organized with a particular company’s employees rejects membership applications or obstructs union membership by delaying procedures (e.g., requiring approval of the labor union chairman), the principle is to construe their membership as having been recognized as fully qualified member of the union.

It is not null and void to exclude the application of the collective agreement for a certain scope of employees by particularly regulating in the collective agreement those who cannot become members of the labor union. (Jan 29, 2004, Supreme Court 2001 da 5142)
According to Article 5 and Article 11 of the Labor Union Act, employees shall be free to establish a labor union or join one. Concretely, the scope of the labor union membership shall be determined by specifying it in the labor union’s bylaws, and so employees are free to join the labor union and obtain membership in accordance with the bylaws. However, if the labor union and the company mutually agree in the collective agreement to stipulate those who cannot become union members because they are distinct from the scope of the labor union’s membership, the labor union can exclude the application of the collective agreement for a certain scope of employees. In this case, it is not null and void even though the provision for the scope of its membership in the collective agreement is different from that of the labor union’s bylaws.


If some union members are not eligible for union membership because the labor union allowed those who are acting in the interest of the employer to join it, the status of the labor union is forfeited only in cases where the autonomy of the labor union was infringed or is likely to be infringed. (Oct. 28, 1007, Seoul Appellate Court 97 ra 94)
1. Although some union members are not eligible for membership because the labor union allowed those who are acting in the interest of the employer to join it, the status as a labor union under the Labor Union Act is not forfeited immediately, but only in cases where the autonomy of the labor was infringed in reality or is likely to be infringed would the status of the labor union would be considered forfeited.
2. The employees cannot be treated as employers or those who are acting in the interest of the employer just because they have no subordinates or supervisory role in relation to their work; their jobs are directly related to determining working conditions such as employment personnel, payroll, welfare, labor management, etc., but they have no authority to determine those items; and their role is only to collect and provide necessary data or submit their opinions for their superiors to make decisions.


III. Operations

The employer shall admit new employees for full-time union officers when the labor union replaces current full-time union officers who are stipulated in the collective agreement, unless there is no special reason. (Oct 25, 2004, labor union division-3042)
1. According to Article 24(1) of the Labor Union Act, “if provided for in a collective agreement or allowed by employers, employees may be engaged exclusively in affairs of the labor union without providing employers with work specified in their employment contracts.”
2. In cases where the collective bargaining did not specify full-time union officers, but reg

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