1. Establishment of a Labor Union


Article 10 (Report on Establishment of Labor Union)
① A person who intends to establish a labor union shall prepare a report containing the matters described in the following subparagraphs, attached with the bylaws under Article 11 and submit it to the Minister of Employment and Labor, in the event the labor union takes the form of an associated organization or is a unit labor union spanning not less than two of the following areas of Special City, Metropolitan City, Special Self-Governing City, Province and Special Self-Governing Province, to the Special City mayor, relevant Metropolitan City mayor(s) and relevant provincial governor(s); in the event the labor union is a unit labor union spanning not less than two of the following areas of Si/Gun/Gu (referring to autonomous Gu), to the relevant governor(s) of Special Self-Governing Province, mayor(s) of Special Self-Governing City and relevant head(s) of Si/Gun/Gu (referring to heads of autonomous Gu); hereinafter, the same shall apply in Article 12 (1) in the case of other labor unions:
1. Name of a labor union;
2. Location of main office/headquarters;
3. Number of union members;
4. Name and address of union officials;
5. Name of any associated organization to which it belongs;
6. In the case of a labor union in the form of an associated organization, the name of its constituent organizations, the number of union members, the address of its main office/headquarters, and the name and address of its officials.
② A labor union which is an associated organization under paragraph (1) means an industry-level organization comprised of unit labor unions in the same industry or a federation comprised of industry-level organizations or nationwide industry-level unit labor unions.

Article 11 (Bylaws)
In order to guarantee autonomous and democratic operation of the organization, a labor union shall include the following matters in its bylaws:
1. Name of a labor union;
2. Purposes and activities;
3. Location of main office/headquarters;
4. Matters relevant to union members (matters regarding its constituent organizations in the case of a labor union in the form of an associated organization);
5. Name of the associated organization to which it belongs;
6. Matters on a council of delegates if one has been established;
7. Matters concerning meetings;
8. Matters concerning representatives or officials;
9. Matters concerning accounting, including union dues and others;
10. Matters concerning modification of the union bylaws;
11. Matters concerning dissolution;
12. Matters concerning disclosure of the result of a vote on industrial action, the keeping of and access to voters’ roll and ballot papers;
13. Matters concerning removal of representatives or officials for violation of the bylaws;
14. Matters concerning election of officials and delegates; and
15. Matters concerning discipline and control.

Article 12 (Issuance of Certificate)
① The Minister of Employment and Labor, the mayor of a Special City, the mayor of a Metropolitan City, the mayor of a Special Self-Governing City, the provincial governor, the governor of a Special Self-Governing Province or the head of Si/Gun/Gu (hereinafter referred to as the “Administrative Authorities”) shall issue a certificate within three days after receiving a report on establishment under paragraph (1) of Article 10, except for cases prescribed in paragraphs (2) and (3).
② In cases where a report or bylaws need to be supplemented because of any omission or other reasons, the Administrative Authorities shall order a supplement thereof by designating a submission period up to twenty days in accordance with the Presidential Decree. Upon receiving the supplemented report or bylaws, a certificate shall be issued within 3 days.
③ The Administrative Authorities shall return a report filed in cases where any of the following subparagraphs apply to the submitting labor union:
1. Where a labor union falls within the categories of each subparagraph 4 of Article 2;
2. Where supplements are not submitted within the designated period in spite of an order to supplement a report in accordance with the provisions of paragraph (2).
④ With regard to the issuance of a certificate, a labor union shall be construed to have been established at the time when its report of establishment of the labor union was submitted.

Labor unions as defined in the Trade Union Act shall meet substantial and formal requirements in order to be established effectively.

Labor unions shall meet the substantial requirements, regarding subject, independence, purpose and association. Although the labor union meets these substantial requirements, any person who intends to establish a labor union in accordance with the Trade Union Act shall submit a report of establishment, together with the bylaws, to administrative agencies such as the Minister of Labor or a Special Metropolitan City mayor, a Metropolitan City mayor, and provincial governors, and then obtain certificates of report of establishment from the administrative agencies. When a labor union has received these certificates of report, it is construed as having been established at the time when the Minister of Labor received the report. Generally, although the Trade Union Act guarantees the freedom to set up labor unions, the fundamental reason that the Trade Union Act requires a report on union establishment lies in the need for the relevant authorities to protect and guide labor unions to ensure that they are organized into an effective and orderly system and operate as independent and democratic organizations. Seoul Administrative Court ruling on April 21, 2005: 2004 guhap 35536


Those who lose their eligibility for labor union membership due to a change in their position can organize a labor union.

If employees lose their eligibility for existing labor union membership due to a change in position, they can establish a new labor union in cases where the part of Article 2 of the Trade Union Act, which states the ‘status of an employer or a person representing the interest of the employer’. MOEL Guideline: Sep 1, 2003, Nojo 68107-452


Employees that do not come under the scope of the existing union membership can establish a new labor union.

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 out of the scope of its membership. If employees with 2nd grade position or higher have not joined an industrial, regional, and/or occupational union and 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’, does not apply to them, they can establish a new labor union within their own scope. MOEL Guideline: Oct 1, ’02, Nojo 68107-767


2. Admission of a Labor Union


Article 5 (Organization and Membership in the Labor Union)
Workers are free to organize a labor union or to join one, except for public servants or teachers who are subject to other enactments.


It is not justifiable to prohibit a former union member from rejoining the union. MOEL Guideline: May 22, 2002, nojo 68107-452


1. To qualify for union membership, union members shall be employees stipulated under Article 2, Item 1 of the Trade Union Act, shall not fall under Article 2, Item 4(a) of the Act, which prohibits membership in the union for employees with 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 Trade Union Act, employees shall be free to join and leave a labor union. The joining procedures shall be stipulated in the bylaws of the labor union concerned. In cases 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 members of the union.

It is not null and void to exclude 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. Supreme Court ruling on Jan 19, 2004: 2001da5142.


According to Article 5 and Article 11 of the Trade Union Act, employees shall be free to establish a labor union or join one. Concretely, the scope of the labor union membership shall be specified in the labor union’s bylaws, meaning 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 outside the scope of the labor union’s membership, the labor union can exclude 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. Supreme Court ruling on Jan 29, 2004: 2001 da 5142


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 has been infringed or is likely to be infringed. Seoul Appellate Court ruling on Oct. 28, 1997: 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 Trade Union Act is not forfeited immediately, but only in cases where the autonomy of the labor has been infringed in reality or is likely to be infringed.

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 have a 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.

3. Operations

Article 14 (Keeping, etc. of Documents)
① A labor union shall prepare each of the following documents within thirty days from the date of its establishment, and keep them at its headquarters or main offices:
1. Register of union members (the name of its constituent organizations in the case of a labor union in the form of an associated organization);
2. Union bylaws;
3. Name and address of union officials;
4. Minutes of meetings;
5. Financial records and documents.
② Documents stipulated in subparagraphs 4 and 5 of paragraph (1) shall be retained for three years.
Article 15 (Holding of General Meetings)
① A labor union shall hold one or more general meetings each year.
② The representative of a labor union shall preside over general meetings.
Article 16 (Matters for Resolution by General Meeting)
① Each of the following matters shall require a resolution adopted by the general meeting:
1. Adoption and modification of bylaws;
2. Election or discharge of union officials;
3. Collective bargaining;
4. Budgets or closing;
5. Establishment, operation, and disposition of funds;
6. Establishment, admission, and withdrawal of an associated organization;
7. Merger, division, or dissolution;
8. Structural changes;
9. Other important matters.
② The general meeting shall adopt resolutions by an affirmative vote of a majority of the members present at a general meeting where a majority of all members are present. However, resolutions as to the introduction and modification of bylaws, discharge of union officials, and merger, division, dissolution and structural change of a labor union shall be passed by affirmative vote of at least two-thirds of members present at a general meeting where a majority of all members are present.
③ Notwithstanding the provisions of paragraph (2), in an election in which no candidate running for union official has obtained the consent of a majority of the union members present, a run-off election may be held and the candidate with the highest number of votes may be elected in accordance with the bylaws.
④ Resolutions as to the adoption and modification of union bylaws, or the election and discharge of union officials shall be made by direct, secret, and unsigned ballot.
Article 17 (Council of Delegates)
① A labor union may, in accordance with its bylaws, establish a council of delegates in lieu of a general meeting.
② Delegates shall be elected by direct, secret, and unsigned ballot by union members.
③ The tenure of delegates shall be specified in the bylaws of the labor union and shall not exceed three years.
④ Where a council of delegates has been established, the provisions on general meetings shall be applied mutatis mutandis.
Article 18 (Calling of Extraordinary General Meetings, etc.)
① The representative of a labor union may, if he/she deems necessary, convene an extraordinary general meeting or council of delegates.
② The representative of a labor union shall convene, without delay, an extraordinary general meeting or a council of delegates in cases where more than a third of the union members or delegates bring the matters to be referred to meetings, and require that a meeting be called (in the case of a labor union in the form of an associated organization, more than one third of its constituent organizations).
③ Where a representative of a labor union deliberately neglects or avoids the convening of the general meeting provided in paragraph (2), and a request is made by one third or more of the union members to appoint a convener of the meeting, the Administrative Authorities shall ask the Labor Relations Commission to adopt a resolution within fifteen days, and upon adoption of such resolution by the Labor Relations Commission, immediately appoint a person to convene the meeting.
④ Where there is no person with the authority to convene a general meeting or a council of delegates, if one-third or more of the union members or delegates bring matters to be referred to a meeting, and submit a request to appoint a person to convene the meeting, the Administrative Authorities shall appoint a person within fifteen days of such request.
Article 19 (Procedure for Calling Meeting)
A general meeting or council of delegates shall give public notice of matters to be discussed at least seven days prior to the commencement date of such meeting or council, and shall convene such meeting or council pursuant to the methods prescribed by the bylaws. However, the notification period may be reduced in accordance with the bylaws of a labor union in cases where a labor union is composed of workers in the same workplace.
Article 20 (Special Provision as to Voting Rights)
In cases where a labor union is to make a resolution on matters regarding a particular union member, that union member shall have no right to partake in the vote.
Article 22 (Rights and Duties of Union Members)
Every union member has equal rights and duties to participate in all affairs of the labor union. However, a labor union may restrict, under union bylaws, the rights of those members who do not pay union dues.
Article 23 (Election of Union Officials, etc.)
① Union officials shall be elected from among the union members.
② The tenure of union officials shall be determined by the union bylaws, and shall not exceed three years.
Article 24 (Full-time Official of labor union)
① A worker may perform duties only for a labor union, without providing the services specified in his/her employment contract, if it is stipulated in the collective bargaining agreement or the employer consents.
② A person who is engaged in duties only for a labor union in accordance with paragraph (1) (hereinafter referred to as “full-time official”) shall not be remunerated in any way by the employer for the duration of his/her tenure.
③ An employer shall not restrict legitimate union activities by a full-time union official.
④ Notwithstanding paragraph (2), a worker may take time off from work to carry out the functions prescribed by this Act or other Acts, including consultation and bargaining with the employer, grievance handling and occupational safety activities, and the functions of maintaining and managing the labor union for the sound development of industrial relations without any loss of wages as long as he/she does not exceed the maximum time-off limit (hereinafter referred to as “the maximum time-off limit”) set in consideration of the number of union members, etc., in each business or workplace in accordance with Article 24-2, if it is stipulated in the collective agreement or the employer consents.
⑤ A labor union shall not demand the payment of wages in violation of paragraphs (2) and (4) and take industrial action to achieve such a goal.
Article 25 (Auditing of Account Records)
① The representative of a labor union shall have an auditor conduct, at least once every six months, an audit of all financial resources of a labor union, purposes of the financial resources, names of major contributors and current financial and accounting status, and shall disclose the results of the audit to all union members.
② The auditor of a labor union may, if necessary, conduct an audit of the labor union itself, and disclose the results of the audit.
Article 26 (Disclosure of Status of Operation)
The representative of a labor union shall notify union members of financial closing and the status of operation each fiscal year, and have the data available for inspection when union members so request.
Article 27 (Presentation of Materials)
A labor union shall report the outcome of financial closing, and the status of operation upon request of the Administrative Authorities.
Article 28 (Cause for Dissolution)
① A labor union shall be dissolved if it falls within the purview of any of the following subparagraphs:
1. Occurrence of causes for dissolution prescribed by its bylaws;
2. Dissolution due to merger or division;
3. Dissolution by a resolution adopted by a general meeting or council of delegates;
4. Dissolution by the Administrative Authorities upon resolution of the Labor Relations Commission when the labor union has no officials and has not carried out any activity for one year or more.
② If a labor union is dissolved on grounds specified in subparagraphs 1 to 3 of paragraph (1), the representative of the labor union shall report it to the Administrative Authorities within fifteen days of the date of the dissolution.


The employer shall admit new employees as full-time union officers when the labor union replaces current full-time union officers who are stipulated in the collective agreement, unless there is a special reason not to do so. MOEL Guideline: Oct 25, 2004, labor union division-3042


1. According to Article 24(1) of the Trade 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 agreement does not specify full-time union officers, but regulated the number of full-time union officers, in this case if current full-time union members including the union chairman cannot be engaged exclusively in the affairs of the labor union, the company shall admit new full-time union officers assigned in accordance with the decision or determination of the labor union’s organization with justifiable authority in consideration of the purpose of the collective agreement, customary acceptance, etc., unless there is a special reason not to do so.

Although full-time union officers were punished with ‘suspension from office’, the employer shall continue to pay them if they were engaged exclusively in affairs of the labor union. MOEL Guideline: Nov 5, 2003, NoJo 68107-573


1. Despite being full-time union officers according to Article 24(1) of the Trade Union Act, the employees can only be exempted from providing employers with work specified in their employment contract according to a provision in the collective agreement or consent of the employer, but still maintain their status as employees. Accordingly, the employers can discipline full-time union officers in accordance with reasons for discipline and procedures stipulated in the collective agreement.

2. Although full-time union officers are exclusively engaged in the affairs of the labor union without providing employers with work specified in their employment contract, the officers can receive pay from the employer according to Article 24(2) of the Trade Union Act and Article 6 of its Additional Provision. Therefore, the employer shall pay full-time union officers in agreement with the labor union if full-time union officers have been engaged in affairs of the labor union even though they were punished with ‘suspension from office’.

The employer shall pay full-time union officers according to the collective agreement even during illegal strikes. MOEL Guideline: Sep 25, 2001, Nojo 68107-1089


The pay that the employer provides to full-time union officers who are exempt from the obligation of providing work specified in their employment contract is different from wages paid in return for work. Therefore, the principle, ‘no wage for no work’ according to Article 44 (1) of the Trade Union Act, will not apply directly to full-time union officers, and their pay shall follow the agreement or decision of the labor union and the employer.

It is not legitimate that the union chairman appoints union officers, or that union officers are selected by round of applause. MOEL Guideline: Aug 7, 2001, Nojo 68107-884


1. Article 11 of the Trade Union Act regulates that all labor unions shall provide for ‘matters concerning the procedures for election of officers’ in their bylaws in order to guarantee the autonomous and democratic operation of their organizations. Therefore, the election of officers shall be selected by the procedures and methods stipulated in the Trade Union Act and bylaws.

2. On the other hand, Article 16 (4) of the Trade Union Act regulates that matters concerning the election of union officers shall be decided by members through direct, secret, and unsigned ballot. It violates the Trade Union Act when the union chairman appoints union officers or when they were selected by round of applause by labor union members. Union officers do not have the right to vote in this election unless they are delegates from the Council of Delegates according to Article 17 (2) of the Trade Union Act.

It is null and void for the union bylaws or election management rules to stipulate indirect selection methods as a way of prohibiting labor union members from selecting delegates directly.

Article 17 of the Trade Union Act regulates that delegates in the Council of Delegates, on behalf of the General Assembly, the highest decision-making body, shall be elected by direct, secret, and unsigned ballot. The purpose of this guide is to let the union members be engaged in decision-making about the organization and operations of the labor union and to promote democracy inside the labor union - namely, its democratic characteristics. Accordingly, it is null and void that the bylaw or election management rule stipulates an indirect selection method and prohibits labor union members from selecting delegates directly, except in special situations. Supreme Court ruling on Jan 14, 2000: 97 da 41349



II. Method for Establishing a Labor Union

1. Effects of the Establishment of a Labor Union
A labor union, upon receiving a Certificate of Labor Union Establishment, is entitled to the following legal protections Article 3,4,6, and 7 of the Labor Union Act
:
① Immunity for justifiable industrial actions from civil and criminal liabilities;
② Registering with the competent register office to make the union an incorporated body;
③ Mediation for labor disputes from the Labor Relations Commission upon request;
④ Remedy for unfair labor practices from the Labor Relations Commission upon request;
⑤ Receiving the status of a labor union;
⑥ Exemption from taxation for its union activities, in accordance with the tax code (except for profit-making activities).