Workers are free to establish and join a labor union according to their basic rights guaranteed by the Constitution. However, the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union Act") stipulates that a “union” that allows the employer or persons acting on behalf of the employer to become members, that association shall be disqualified from being declared a labor union. The restriction that a labor union shall not allow membership for the employer also extends to representatives of the employer’s interests. The Trade Union Act restricts the scope of union membership in this way to i) protect the independence of the union by preventing someone directly representing the employer from joining it and controlling or intervening in its operations and ii) maintain the balance of bargaining power between labor and management by preventing the leakage of employer-related confidential information to the union. MOEL Guidelines: Nojo 01254-665, Jun. 28, 1996.
For this reason, if a worker who is prohibited from joining a labor union joins such a union, that union becomes disqualified as it can no longer serve to protect labor rights under the Trade Union Act.

Recently, more than 100 office workers in a public corporation formed a labor union and received a Certificate of Union Establishment from the Ministry of Employment and Labor (MOEL). However, the employer claimed that some of the union members included workers who are prohibited from joining a labor union under the Trade Union Act, and filed a complaint with the MOEL so as to disqualify the Office Workers’ Labor Union. Herein, I would like to examine whether these workers are prohibited from joining a labor union according to the Trade Union Act.

1. Criteria for Determining for Disqualification

(1) Requirements for establishing a labor union

Article 2, Paragraph 4 of the Trade Union Act regulates, “The term “labor union” means an organization or associated organization of workers which is formed in a voluntary and collective manner upon the workers’ initiative for the purpose of maintaining and improving working conditions, or improving the economic and social status of workers”, which is the “substantive requirement”. Article 10, paragraph 1 of the same Act stipulates that a Report on Establishment shall be submitted to the MOEL, which is the “formal requirement”. The Trade Union Act explains that in order for such a labor union to be legitimate, it must meet both substantive and formal requirements.

The substantive requirement is designed to assess whether a union has identity, independence, purpose and collective nature, Jongyul Lim, 「Labor Law」 17th ed., Parkyoungsa, 2019, p. 60.
in which case it is not regarded as a labor union under the Trade Union Act if an employer or other persons who always act in their employer’s interests are allowed to join the organization; in cases where most of the expenditures are provided for by the employer; where those who are not workers are allowed to join the organization, etc. The union's identity, independence, purpose and collective nature must be protected.

The formal requirement is for the labor union to report its establishment to and receive a Confirmation of Registration letter from the MOEL. A person who intends to establish a labor union shall prepare a report with the union constitution attached, which describe the union’s democratic and independent operations (Article 10 (1) of the Act). The MOEL shall return any report filed by a labor union to which any item in Article 12(3) apply (related to disqualification). The purpose of requiring such a report regarding the establishment of a labor union is to ensure it can survive as an independent, democratic organization through effective maintenance and management of the administrative organization. Supreme Court ruling on Oct. 14, 1997, 96 nu 9829.


(2) Labor unions that remain unregistered due to their disqualification from establishment

Once the MOEL has received a Report on Establishment, it shall issue a Confirmation of Registration letter within three days Article 19, Paragraph 1 of the Act on the Handling of Civil Complaints: “If the period for processing a complaint is set to 5 days or less, it shall be calculated in hours from the time of receipt of the complaint, but holidays and Saturdays shall not be counted. In this case, one day shall consist of eight working hours.”
, except when i) supplementation is required or ii) when it is necessary to reject the report on establishment. Since unions are established under a registration system rather than a permit system, once a Confirmation of Registration letter is issued, the union shall be considered to have been established as of the date of receipt of the Report on Establishment by the MOEL.

i) Supplementation is required if some problem is detected in the Report on Establishment. If a report does not have the union constitution attached or if the union constitution was not enacted by direct, secret and anonymous ballot, an order for supplementation shall be issued, to be fulfilled within 20 days.

ii) On the other hand, if the reasons for disqualification are related to the establishment of the union, the MOEL may reject the Report on Establishment. If it sends an order for correction, then correction shall be made by the applying union within 30 days. If it fails to do so within that period, it shall be regarded as an unregistered union. Trade Union Act: Article 12(2), (3)-1 ho; Enforcement Decree to the Trade Union Act: Article 9(2)


Notwithstanding the principles of free registration for labor unions, the MOEL shall issue a Confirmation of Registration only to unions that meet certain requirements. Labor unions that are not established in accordance with the Trade Union Act cannot be protected by that Act because they are unregistered. There are three types of unregistered unions: ① No attempt at registration was made, ② The union’s Report on Establishment was rejected, or ③ A previously-registered union was disqualified.

If a labor union becomes unregistered, it does not have the following benefits: (1) Immunity from civil and criminal liability (Articles 3 and 4), ② Legal status (Article 6), ③ The right to apply for adjustment in labor disputes, or to apply to the Labor Relations Commission for remedy against unfair labor practices (Articles 7 (1) and 82), ④ The right to use a labor union name (Article 7), ⑤ Tax-exempt status (Article 8), ⑥ Authority to engage in collective bargaining and conclude collective agreements (Article 29) ⑦ The right to participate in the procedure for determining a bargaining representative union (Article 29-2), ⑧ The right to engage in collective action during disputes, which is normally afforded to labor unions (Article 37), ⑨ The right to designate workers for essential maintenance services (Article 42-6), ⑩ The right to be excluded from participating in a special mediation committee (Article 72), and ⑪ The right to apply for redress of unfair labor practices (Article 81).

2. Reviews of the Related Cases

The MOEL office will order corrective action if there is a reason to disqualify from registration an existing union or a union that has submitted a Report on Establishment. If the corrective action is not taken, then a Certificate of Registration will not be issued to the reporting union, or registration will be canceled for an already existing union. There are two main reasons for disqualification. First, the union allowed membership for an employer or those working directly for the employer’s interests. Second, the labor union’s constitution contains content that is undemocratic or violates its independence or the Trade Union Act.

(1) In cases where a member is the employer or someone working directly for the employer’s interest

Relevant MOEL guidelines explain that those who act on behalf of the employer in matters relating to workers under Article 2 (2) of the Trade Union Act are (i) those who are engaged in determination of working conditions such as personnel, salary, welfare, labor management, etc.; ii) those who have been given a certain authority and responsibility by the employer over matters such as ordering, supervision, etc.; iii) and those in charge of management of personnel and labor such as recruitment, dismissal, and job transfer; (iv) Those in charge of determining wages, working hours, breaks and other working conditions and confidentiality of labor relations; and (v) those with authority or direct involvement in internal and external regulations and other policy decisions. This includes employees and directors in charge of human resources and labor, and employees and managers in charge of management planning. In addition, those who act on behalf of the employer's interests in Article 2 (4) of the Trade Union Act refer to those acting on behalf of the employer with respect to the workers of the business, such as the employer’s assistants, employees in supervisory positions, and employees and directors in charge of accounting in the company, directors’ drivers, and security personnel engaged in surveillance, patrols and other policing duties. MOEL Guidelines: nojo 01254-665, Jun. 28, 1996.


However, authority and responsibility for determining working conditions such as personnel, salary, welfare, and labor, or for ordering or supervising work should be considered in terms of specific facts such as the degree of involvement in the job and in workers’ affairs, rather than only the formal title or status. This should be also judged in consideration of whether this authority has been granted by the employer or the manager in charge of the business and the degree of involvement in matters related to workers. Other details to be reviewed comprehensively are whether the persons in question have access to the employer's confidential information related to plans and policies. MOEL Guidelines: nojo 01254-383, May 24, 1999; nojo 01254-665, Jun. 28, 1966


(2) Cancellation of a labor union’s registration due to its constitution violating the Act on the Establishment, Operation, Etc. of Trade Unions for Teachers (hereinafter, the “Teacher’s Union Act”): Korea Teachers' Labor Union (KTU)

The KTU is a representative case of disqualification because its constitution violated the Trade Union Act.

1) Background to the KTU’s disqualification Internet Encyclopedia: Wikipedia / Wooden Wiki, “Search: National Teachers' Union of Korea,” accessed on August 18, 2019.

The KTU was founded in May 1989, and is a nationwide unit labor union that covers elementary and secondary school teachers, consisting of about 50,000 members in 2015. The KTU has been contributing to true education by working against bribery, prohibiting corporal punishment, eradicating private school corruptions, but has also been criticized for opposing the teacher evaluation system and for teaching political ideology.

On June 27, 1999, when the KTU was legalized, it established an additional clause (Article 5) in its Constitution to be able to allow 9 laid-off teachers to join, but this registration report did not include this article when reporting to the MOEL. In other words, in 1999, when the KTU reported its registration form, the provision that allowed it to retain dismissed teachers as members was hidden.

In 2010, the MOEL received a complaint from a conservative NGO that the KTU was keeping the 9 dismissed teachers as members. As a result, it was discovered that the union’s constitution violated the Trade Union Act Trade Union Act – Article 2 (4ho) Disqualification item (4) D. Where those who are not workers are allowed to join the organization, Provided that a dismissed person shall not be regarded as a person who is not a worker, until a review decision is made by the National Labor Relations Commission when he/she has made an application to the Labor Relations Commission for remedy against unfair labor practices.
and the Teachers’ Union Act. Teachers Union Act: Article 2. The term “teacher” in this Act refers to a person prescribed in Article 19 (1) of the Elementary and Secondary Education Act: Provided that any dismissed persons who have requested remedy for unfair labor practices to the Labor Relations Commission under Article 82 (1) of the Trade Union and Labor Relations Adjustment Act shall be regarded as teachers until a review decision is made by the National Labor Relations Commission under Article 2 of the Labor Relations Commission Act.
So, in May 2010, the MOEL issued an order to the KTU to correct its constitution. The reason given was that dismissed teachers cannot become union members in accordance with Article 2 of the Teachers' Union Act and Article 2 (4) of the Trade Union Act, and any union with non-employee members is subject to disqualification. In accordance with Article 9 (2) of the Enforcement Decree to the Trade Union Act, the union was disqualified for failing to follow the correction order from the MOEL.

2) The KTU challenges the judgement as unconstitutional Seoul High Court ruling on Sep. 19, 2014: 2014ah413.

The KTU challenged the constitutionality of the judgment with the following arguments: (1) The Trade Union Act and Teachers Union Act violate the constitutional right to organize, as they do not allow dismissed workers to join a labor union; (2) Rules not entrusted under legislation enacted by the National Assembly is a violation of legal principle: Article 9 (2) of the Enforcement Decree to the Trade Union Act (which the MOEL used to disqualify the KTU), was enacted by the MOEL, and cannot be implemented without the actual Article stipulated in the Trade Union Act, passed in the National Assembly by lawmakers.

3) Decision of the Constitutional Court Constitutional Court decision on May 28, 2015, 2014 hunma 671, 2014 hunma 21.

The Constitutional Court dismissed the KTU's constitutional challenge on May 28, 2015. “Even if some of the non-teachers are members of the teacher union, it is up to the discretion of the MOEL to decide whether to qualify or disqualify the labor union. In addition, the discretionary judgment of the MOEL on the disqualification of the KTU as it includes some persons who are no longer teachers is based on the number of unqualified members who are active in the union activities, the effect of such members on the KTU activities, and the union activities of such unqualified members. This decision to disqualify the KTU is within the legal discretion of the MOEL.”

In addition, the Constitutional Court stated, “Adoption of the principle of reporting in relation to the establishment of a labor union allows the relevant union to survive as an independent, democratic organization through efficient maintenance and management of the organizational structure of a labor union. It is the purpose of labor policy considerations to protect, foster, and thoroughly guide and supervise.” Constitutional Court decision on July 31, 2008, 2004 hunba 9.
In particular, since the teachers’ union is made up of unit labor unions under one nationwide organization, allowing non-teachers into membership is a reason for disqualification of its establishment under Article 2 (4) of the Trade Union Act.

3. Conclusion

If an employer places control over a union by becoming a member himself or having someone directly representing his interests become a member, this amounts to a violation of the union's identity and independence. On the other hand, when a large number of workers directly representing the employer’s interest join the union, the company essentially falls under the control of the labor union, as confidentiality of the company’s business will be impossible to maintain. This upsets the balance of power between labor and management. Therefore, to maintain this balance, the administrative office needs to be involved in the reasons for disqualification of a labor union from establishment.

In the same way, it should be judged as a disqualified labor union as the Office Workers Union in this case includes the employer's managers and the representatives representing the employer's interests. Accordingly, the administrative office shall check the actual status of the union in accordance with Article 9 (2) of the Enforcement Decree to the Trade Union Act, and order corrections within 30 days if reason exists to disqualify the union.



Foreign English Teachers’ Labor Union: Establishment and Collective Agreement Bongsoo Jung, “Foreign English Teachers’ Labor Union : Establishment”, 「Labor Law 」, January 2010, Joongangkyungjae; Bongsoo Jung, “Foreign English Teachers’ Labor Union : its Collective Agreement”, 「Labor Law」, August 2010.



As of December 2018, 13,700 foreign English teachers were working with legitimate work visas (E-2) in Korea, but they have not yet received sufficient legal protection under labor laws. This establishment of a labor union by some foreign English teachers has an important meaning as the first legal entity of its kind under Korean labor law, which is able to promote job security for themselves and facilitate collective action together to confront an employer about unlawful labor practices. Most foreign English teachers receive fair treatment according to their employment contract, but there are still more than a few who have had to endure unilateral changes to their working conditions by the employer or the employer’s failure to fulfill his/her part of an agreed contract. Frequent examples include dismissing foreign teachers after eleven months to avoid paying severance pay, delaying payment of the last month’s wages and severance pay, dismissing them without justifiable reasons in the middle of the contract period just because the employer dislikes them, and failure to pay for overtime. I strongly believe that this foreign teachers’ labor union will contribute to bettering their working conditions and promoting their job security.


1. Disputes over working hours

In early September 2009, five foreign English teachers working at an institute in Incheon visited this labor law firm and began a labor case over unpaid overtime allowance. The teachers were supposed to work 30 hours per week and 6 hours per day to complete their contractual working hours according to the employment contract, but their employer had them working 40 hours per week - 8 hours per day - which resulted in two hours of overtime every day. The employment contract stipulated, “The employee shall work 30 hours per week or 120 hours per month. If the employee agrees to work overtime, the employer shall pay 15,000 won per overtime hour.” At a meeting between the employer and teachers on September 1, when a female foreign English teacher brought up the fact they were working overtime without an overtime allowance, the employer verbally notified her that she would be dismissed in one month. Feeling concerned about their own employment, the other foreign English teachers visited this labor law firm in a group and began a labor case over unpaid overtime allowance and then collectively refused to work anymore overtime that was not stipulated in the employment contract.

The labor inspector in charge of this petition case investigated both parties. The employer stated that the teachers had only 6 actual teaching hours, while the remaining hours were preparation time required for teaching. However, the teachers claimed they had to come to the institute during that preparation time, and if they were late, they received disadvantageous treatment, meaning this mandatory preparation time needed to be regarded as working hours. In this dispute, the labor inspector agreed that teachers had to stay at the institute an additional two hours with no regulation for the additional working hours, but that they also were given some time for dinner between working hours. Therefore, the labor inspector ordered the employer to pay 50% of what the teachers claimed as unpaid overtime.

2. Disadvantageous treatment and establishment of the labor union

The employer cancelled his verbal notice of dismissal for the female teacher who initially brought up the issue of unpaid overtime as the labor attorney submitted a petition to the labor office. However, once the labor case on unpaid overtime concluded, the employer called a disciplinary meeting for the teacher concerned and dismissed her immediately. The teachers who submitted the petition together were certain they would face similar retaliation, and visited this labor law firm on November 12, requesting to establish a labor union.

Regarding their request, this labor attorney provided information to five of the foreign teachers on why a labor union is established, how to establish it, and how it should be run, and then supported them during their general meeting designed to establish the labor union, bylaws and labor union registration. In particular, I had to complete in English as well as in Korean the documents required to register the labor union, such as the application form, bylaws, and meeting minutes for the general meeting. These bilingual documents were designed not only to help the foreign English teachers to run the labor union democratically and independently, but also to make sure the documents were qualified to be submitted to the district (gu) official in charge of union registration in the competent district office in Incheon. The district official concerned reviewed the documents for the labor union registration very thoroughly, found nothing disqualifying even after checking with the labor office in that area, and issued a certificate of labor union establishment on November 24, 2009.

3. Conclusion of a Collective Agreement for the Foreign Teachers’ Labor Union Mr. Jung represented Incheon Avalon labor union from Apr 28 to May 15, 2010 and concluded a collective agreement.


Five foreign teachers working at a language institute in Yeonsu-Gu, Incheon, established a labor union on November 19, 2009, and attempted to initiate collective bargaining. The labor union offered 21 items to the employer for collective bargaining on December 21, 2009, but the employer intentionally wasted time, refusing to engage in collective bargaining, and gave no response to the labor union’s requests. The employer’s intention was to delay as long as possible, knowing that the union members’ employment contracts would eventually expire. However, due to repeated requests by the labor union, the employer unwillingly began collective bargaining on April 13 and 14, 2010. The employer accepted the contents equivalent to the conditions in the employment contract, but firmly rejected four items related to improvement of working conditions. Furthermore, the employer declared that he would not participate in any further collective bargaining and did not respond to further requests to do so. The labor union decided to take collective action, and applied to the Incheon Regional Labor Commission for an adjustment of labor disputes as a procedure to obtain the right to strike.

The Mediation Committee in the Labor Commission persuaded the labor union and management to talk, extending the mediation period due to a serious situation arising because of the disagreement between the union and the employer, and drew up an adjusted collective agreement that both parties could agree to. Even though the labor union did not have all its demands fulfilled, it was able to finalize a collective agreement by acquiring some concrete working conditions regarding disciplinary procedures, longer vacation, and recognition of the labor union entity. Here, I would like to explain the processes of detailed collective bargaining and how the collective agreement was drawn up by the Mediation Committee of the Labor Commission.

4. Concluding a Collective Agreement through Mediation

(1) Timeline leading to conclusion of collective bargaining
- Nov 19, 2009: Labor union established
- Dec 21, 2009: Twenty-one items for collective bargaining brought to the employer by the labor union
- Apr 13 ~ 14, 2010: Collective bargaining begun
(17 items were agreed upon, 4 unresolved).
- Apr 20, 2010: The employer declared the end of collective bargaining and refused to engage further.

(2) Mediation by the Labor Commission, and the resulting collective agreement
- Apr 28, 2010: The labor union applied to the Labor Commission for adjustment of labor disputes
- May 6, 2010: 10:00 ~ 12:00: Mediation hearing confirmed the existence of disputes. Mediation begun between the labor union and management.
- May 13, 2010: 10:00 ~ 16:00 Resolution of labor disputes and conclusion of a collective agreement

(3) The 21 Items for Collective Bargaining

5. Major Disputed Items

(1) Introduction of disciplinary procedures

1) No disciplinary rules existed in the employment contract or the rules of employment.
2) Items Agreed Upon


Article 7 (Types of Disciplinary Action)
1.There are four types of disciplinary action: written warning; salary reduction; suspension from work; and dismissal
2. Details follow each article of the employment contract.

Article 8 (Disciplinary Hearings)
Union members must be informed of any disciplinary hearing in writing at least three working days in advance. These hearings will be conducted solely in English as far as possible.

Article 9 (Disciplinary Committee)
1. A Disciplinary Committee shall be composed of one chairman (the employer), two union members designated by the union chairman, and two persons designated by the employer.
2. A decision or vote will pass the Disciplinary Committee only if more than half of the Committee members attend the meeting and if at least half of the attending Committee members agree with the decision. However, if there is an equal vote on an issue, the chairman shall decide.
3. The chairman of the Disciplinary Committee will give Committee members at least 3-calendar days’ written notice in the event of a Disciplinary Hearing.

3) Evaluation
Previous disciplinary actions were unfair because the employer presided over disciplinary hearings in Korean for foreign teachers who did not understand Korean. However, this collective agreement 1) introduces disciplinary procedures, 2) provides the opportunity to submit testimony, and 3) composes the Disciplinary Action Committee of an equal number of members from the labor union and the employer, and 4) shall be held in the English language.

(2) Use of annual leave
1) Previous employment contract: “The employee is entitled to 10 days of paid leave for the entire year according to the rules and procedures of the company. Paid leave cannot be taken less than three months after the beginning of employment and no more than 5 days can be used at one time.

2) Items agreed upon

1. Employees are allowed to take up to 6 consecutive days off as paid vacation (including off-days). In cases where an employee takes 7 to 9 days off as paid vacation (no more than 5 of these regular working days), the employee shall leave a 600,000 won deposit with the employer to ensure his/her return to work.
2. When an employee returns from vacation, the employer shall refund the deposit immediately. However, if the employee does not return to work by the designated returning day, the deposit will not be returned.

3) Evaluation
The previous rules allowed employees to use up to 6 days including a weekend, but the revision allows up to 9 consecutive days. During mediation, the employer expressed his fear that employees would not return to work after visiting his/her home country if he/she took a longer leave. The employer accepted the deposit method where the employee deposits a certain amount of money when taking 7 or more consecutive days off. Due to the distinct situation of foreign teachers, the union had to introduce this deposit system, but it was desired that this item be deleted in the next collective agreement once trust had developed between the teachers and the employer.

(3) Provision of recess hours

1) Request

Article 14 (Scheduling)
The Company shall not give teachers a schedule that requires them to work in a classroom with students for more than 170 consecutive minutes per day. If the Company wishes to give a teacher a schedule of more than 170 minutes of teaching, then the teacher must be given 30 minutes of office time after the initial 170 minutes.

2) Reason for requesting recess hours and related collective bargaining
Foreign teachers were unable to have a dinner break one or two days a week when they had to teach 4 pm to 10 pm non-stop. The labor union requested recess to eat dinner. The employer was very strongly against providing recess, explaining that, if allowed, the employer would have to hire an additional foreign teacher and rearrange the schedules already announced. The association of regional institute owners also insisted that the employer never accept this demand.

3) Evaluation: The labor union had to withdraw this demand in order to conclude the collective agreement. However, “an employer shall allow a recess period of 30 minutes for every 4 working hours during the working day” is stated in Article 54 of the Labor Standards Act, so this labor attorney, who supported the labor union, persuaded the labor union to withdraw this demand for the time being, explaining that it could be resolved separately through a claim to the Labor Office.

6. Outcome and Limits to the Collective Agreement

There are some important outcomes to the establishment of the first foreign teachers’ labor union under Korean law, and their conclusion of a collective agreement on working conditions. The first is that the labor union was able to achieve better working conditions through employee unity, things which could hardly be expected from individual effort alone. The second is that foreign teachers were able to exercise their employment rights guaranteed by the Trade Union Act. That is, through organization into a labor union, the foreign teachers were protected in the same way as Korean employees under the Trade Union Act. Thirdly, even though the concluded collective agreement was less than the union members wanted, they were relatively satisfied with the results, and their decision to establish a labor union was confirmed to be in their best interest.