1. Requirements for legal industrial actions

▶ If an employee engages in unjustified industrial actions, his behavior is subject to disciplinary dismissal under the Collective Bargaining Agreement or Rules of Employment such as “severe misbehavior or intentional disobedience for justifiable order”. (Supreme Court ruling on Sep 22, 1992, 91 da 4137).

▶ An employee can be exempt from any penalty only when the industrial actions are legal. Legal industrial actions shall satisfy the following requirements: Firstly, the subject shall be the person who is subject to collective bargaining. Secondly, the purpose of the action must be to cultivate negotiations between labor and management in order to improve working conditions. Thirdly, industrial actions must be taken only when the employer rejects collective bargaining regarding employees’ substantial demands for improved working conditions. In these cases, as preceding conditions, the labor union shall engage in a pros-and-cons voting-process and report the occurrence of any industrial action unless there is a special situation. And fourthly, the ways and methods shall be in harmony with the employer’s property rights and shall not involve any violent behavior. (Supreme Court ruling on May 24, 1991, 91 do 324).

2. Subject of industrial action

▶ Those engaged in industrial actions shall be those persons who are capable of conducting collective bargaining and signing collective bargaining agreements. (Supreme Court ruling on June 25, 1999, 99 da 8377).

▶ Industrial actions are legal only when it is authorized by an established labor union in accordance with the regulations of the Labor Union Act. However, industrial actions are not legal if they are conducted by a group of employees not yet established as a labor union. Industrial actions are designed to accomplish their claims concerning working conditions by executing collective bargaining agreements. Industrial actions by persons not subject to collective bargaining (e.g., a temporary body for industrial actions) cannot be engaged in order to provide assistance in the settlement of industrial disputes. Accordingly, it is necessary to prevent any irresponsible industrial actions by such groups. (Supreme Court ruling on June 25, 1999, 99 Da 8377).

▶ The strike conducted by a small group of labor union members without the labor union’s approval or against the majority of union members, which is designated a ‘wildcat strike’, will not be considered legal because the strike was taken by persons not subject to collective bargaining (e.g.. a temporary body for industrial actions). (Supreme Court ruling on Apr 22, 1997, 95do748).

3. Purpose of industrial actions

▶The purpose of industrial actions shall be to cultivate an autonomous negotiation between labor and management to improve working condition. That is, the labor union’s demand shall be the matter pertaining to the collective bargaining that it expects to accomplish by the industrial actions. (Supreme Court ruling on June 25, 1999, 99 Da 8377).

▶ Industrial actions shall be for cultivating an autonomous negotiations between labor and management. Industrial actions are actions designed to accomplish their claims when there is disagreement between parties with respect to working conditions, and the claims of parties described here shall include any matters pertaining to individual and collective labor relations. They shall also not only include claims described in the Collective Bargaining Agreement and Labor Agreement, but also claims for the establishment by additional rules and/or amendments to those agreements. Accordingly, they shall include all claims with respect to the determinations of conditions of employment such as wages, working hours, welfare, dismissal and other issues, but shall not be limited to wages in improving and maintaining workers’ economic status. (Supreme Court ruling on Mar 25, 1994, 93 Da 30342).

▶ In case an industrial action is taken for several reasons, some of which are unjustified, the main purpose of the industrial action shall be examined in order to determine whether the action is justified or not. If it is estimated that the labor union would not risk taking industrial action if the unfair demand was absent from its purposes, the entire industrial actions cannot be justified. (Supreme Court ruling on Jan 21, 1992, 91 Nu 5204).

▶ As long as the reason for the industrial action is not justifiable, even though the labor union has engaged in the prescribed mediation process required by the Labor Union Act before the industrial action commenced and/or there have been no illegal violations in the ways and methods of the action, then such cases cannot be considered justifiable actions. (Supreme Court ruling on Apr. 24, 2001, 99 Do 4893)

4. Time for industrial actions

▶ Industrial actions must start after the employer refuses the labor union’s collective bargaining of substantial demands relating to improved working conditions or when the employer rejected such demands during collective bargaining. As long as there are no special cases, industrial actions shall follow the appropriate procedures in accordance with the Labor Union Act: decision-making process by workers’ secret and unsigned vote (Article 41, (1) of the Labor Union Act), preceding adjustment procedures (Article 45, (2), Article 54, and Article 63 of the Labor Union Act) and reporting the occurrence of an industrial accident (Article 45, (1) of the Labor Union Act). (Supreme Court Ruling on June 25, 1999, 99 Da 8377).

▶ Industrial actions are legal only if the are in accordance with the time requirements and procedures under the law. However, the purpose of the time 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. Even though violations of the legal regulations shall subject the participants to punishment, it will not forfeit the justifiable right to engage in the industrial action. The justification issue shall be decided whether the violations were unlawful because they threatened people’s living conditions or security or caused disturbances or damage to the employer’s corporate operations. (Supreme Court ruling on Dec. 8, 1992, 92 Do 1645).

▶ The peace obligation is an obligation inherent in the collective bargaining agreement, whether it is explicitly included in the collective bargaining agreement or not. Under the peace obligation, neither party to the collective bargaining agreement may demand revision or repeal of the existing provisions in the collective bargaining agreement, or insertion of new provisions, while the agreement remains effective. Considering that the peace obligation is to ensure stability in the labor relationship and to maintain the effectiveness of the collective agreement, the industrial actions, which a union engages in to invalidate a collective bargaining agreement without providing a persuasive reason, constitutes a violation of the peace obligation and cannot be justified. (Supreme Court ruling on Sep. 1, 1992, 92 Nu 7733).

5. Method of industrial actions

▶ Industrial actions shall be to partially or totally prevent the provision of labor services by negative methods to damage the employer. Industrial actions shall be implemented fairly through a principle of faith and sincerity, be in harmony with the employer’s property right regarding to the corporate facility, and shall not be accompanied with violence or destruction. (Supreme Court ruling on June 25, 1999, 99 Da 8377).