Labor Union

Chpater 1. Understanding the Labor Union

1. Definition of a Labor Union

1. The Purpose of the Trade Union Act

Article 33 of the Constitution stipulates the three basic rights of labor as the following: “to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action.” Actions exercising the right to independent association are accomplished through a labor union. Labor unions can make a collective bargaining agreement through collective negotiation as an equal counterpart to the employer for the purpose of maintaining and improving the working conditions of the employees and enhancing their economic and social status. The labor union can also stage a strike where the employees collectively refuse to work as a means to meet their ends.

The purpose of the Trade Union and Labor Relations Adjustment Act (hereinafter, the “Trade Union Act”) is to maintain and improve working conditions and improve the economic and social status of workers by securing their rights of association, collective bargaining and collective action pursuant to the Constitution, and to contribute to the maintenance of industrial peace and development of the national economy by preventing and resolving labor disputes through fair adjustment of labor relations. Article 1 of the Labor Union Act.

The Trade Union Act not only considers civil and criminal misbehavior as non-justifiable labor union activities but also prohibits unfavorable treatment of employees (such as dismissal) for justifiable union activities. Article 3 and Article 4 of the Labor Union Act.

2. A “Worker” according to the Trade Union Act

Article 2 (1) of the Labor Standards Act stipulates that the term “worker” in that Act refers to a person who offers work to a business or workplace to earn wages, regardless of the kind of job he/she is engaged in. The concept of “employee” includes the following factors: 1) It is not determined by the kind of job he/she is engaged in; 2) the person works at a specific business or workplace; 3) the person offers work to earn wages. In understanding this concept, wage is placed at the center, while the key point to be considered is whether a subordinate relationship exists between the one who performs the work and the one who provides the work. That is, “employee” means “a person who offers work to earn money through a subordinate relationship”. Jongryul Lim, 「Labor Law」, 14th ed., Parkyoungsa, 2016, p. 32.
A subordinate relationship is one where a person hired by an employer provides work to that employer, under the employer’s direction and orders, and carries out the tasks the employer requires to be done. This means that an employee who offers work to earn wages can be considered “a person offering work under a subordinate relationship to an employer”. Kaprae Ha, 「Labor Law」, 28th ed., Joongang Economy, 2016, pp. 32-36, Supreme Court ruling on Dec. 7, 2006, 2004da29736.

Article 2 (1) of the Trade Union Act stipulates that the term “worker” in that Act refers to a person who lives on wages, salary, or other equivalent form of income earned in pursuit of any type of job. Those who receive a wage are workers under the Labor Standards Act, and those who earn income equivalent to wages are persons under the Trade Union Act. Equivalent income means any reward earned in exchange for providing labor service to another person independently, without a subordinate relationship. Therefore, ‘worker’ in the Labor Union Act includes workers earning a wage, unemployed persons without income, and those who have no dependent relationship but continue to provide labor for income. Jongryul Lim, 「Labor Law」, 14th ed., Parkyoungsa, 2016, p. 35; Supreme Court ruling on Jan. 29, 2015, 2012doo28247.
In other words, under the Labor Standards Act, workers have both human and economic dependency, but workers under the Trade Union Act are those with economic dependency only. However, this does not apply to those who provide independent work, such as self-employed persons, students who are not ready to work, or those who have given up their job search.

A parcel delivery worker is not a worker earning wages per hour from an employer, but an individual contractor who receives a service fee according to the number of parcels delivered. Since such individual contractors are not workers under the Labor Standards Act, they are protected as workers under the Trade Union Act only. Therefore, it is necessary to distinguish the characteristics of these two different types of worker.

If a worker is recognized as a worker under the Trade Union Act, he/she may exercise the three labor rights (independent association, collective bargaining, and collective action) as a worker. Individual parcel delivery people who are registered as individual business owners and whose income depends on the quantity they deliver can only organize labor unions and demand collective bargaining in order to improve their working conditions. In this case, the employer must comply with the collective bargaining requests of labor unions, with the labor unions able to increase their bargaining power through strikes favoring collective bargaining. If an employer’s property is damaged through collective bargaining or labor strikes, the employer cannot terminate the contract with the delivery agent or claim damages. Articles 3, 4, 81 of the Labor Union Act

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