1. Concept of Unfair Labor Practice

Unfair labor practice refers to an employer's violation of any of the three rights of labor: the right to independent association, collective bargaining, and collective action. The employer can intentionally destroy the function and activities of the labor union with anti-union animosity. Therefore, unfair labor practice by the employer must be prohibited in order to secure the basic rights of employees.

2. Types of Unfair Labor Practice

1) Unfair treatment

Article 81 (Unfair Labor Practices)
1. Dismissal or unfavorable treatment of a worker on grounds that he has joined or intends to join a labor union, or has attempted to organize a labor union, or has performed any other lawful act for the operation of a labor union; and
2. Dismissal of workers or acting against their interests on the grounds that they participated in justifiable collective activities or that they reported to or testified before the Labor Relations Commission regarding the employer violating provisions of this Article, or that they presented other evidence to relevant administrative agencies.


Dismissal or unfavorable treatment of a worker on grounds that he/she has joined or intends to join a labor union, or has attempted to organize a labor union, or has performed any other lawful act for the operation of a labor union is unfair treatment.



① Disciplinary punishment of a labor union's key officers, who have led or agitated the refusal of extended or night work that was already determined by the labor-management council, on account of activities of the union establishment
② Dismissal of an employee who has led a labor union establishment in foreign embassies where Korean labor laws are not applicable
③ Dismissal of a temporary or short-term employee whose contract has expired
④ Dismissal of an employee who has been expelled from the union for leading an illegal strike without justifiable procedures
⑤ Dismissal of an employee related to establishing and operating d, not related to labor union activities
⑥ Dismissal of an employee who has violated managerial orders on account of feigning career history, etc.
⑦ Dismissal of a union's full-time officer who has been dismissed from the labor union for refusing to work at the department he/she belongs to
⑧ Dismissal of an employee who has been sentenced as a criminal for an incident not related to union activities
⑨ Disciplinary punishment of a nurse who has violated the rules of employment by wearing union clothes instead of a nurse's uniform


① Is it an unfair labor practice to promote a union officer to a position which does not allow him to belong to a labor union?

Whether a personnel order to a certain union member is an unfair labor practice or not shall be determined collectively in consideration of all factors, such as relations between the timing of the order and union activities, job necessity, eligibility and the rationale for the personnel selection, and the relations between the company and the labor union. Consideration will also be given to whether a personnel order is an attempt to violate the employees’ three rights. However, when a personnel order to a union member is implemented as a regular personnel order because of job necessity or general standards, such a personnel order shall not be deemed as an unfair labor practice. MOEL Guidelines: Nojo 10254-68, on Jan.22,2001.


② In cases where an employer fires an employee who staged a sit-in without the union's resolution or instruction, the employer does not commit an act of unfair labor practice.

An employee staged a sit-in and, in doing so, obstructed the business. Furthermore, the sit-in was not due to a union resolution or instruction but was simply on the employee's own initiative. The employer's decision to dismiss the employee on the grounds of the unauthorized sit-in does not constitute an act of unfair labor practice. Supreme Court ruling on Nov. 13, 1990, 89Nu5102.


③ If an employer promotes an employee who is entitled to join the union to a higher position which prevents him/her from joining the union, is this an act of unfair labor practice?

In order to determine whether such job promotion constitutes an act of unfair labor practice, it is necessary to consider the timing of the promotion, its impact on union activities, necessity of the promotion for business purposes, the employee's job skills, reasonable nature of the promotion, etc. If the employer's decision to promote the employee to a higher post was based on reasonable criteria for personnel management and the principle of equitability, the promotion is not an unfair labor practice, given that the employee had refused to accept the promotion. Supreme Court ruling on Oct. 27, 1992, 92Nu9418.


④ If an employer, with a view to interfering with union activities, transfers a unionist employee to another location of work where it is not easy to perform union work, this is an act of unfair labor practice.

The employee in question played a leading role in expanding union membership and worked more than 20 years in the production department. He was first transferred to a job in the public affairs department, for which he had no experience, and was then removed to a remote office where he was not entitled to several employee benefits and could hardly do any union work as there were only three or four employees working. Unless the employer proves the necessity of such job transfer for business purposes, the transfer constitutes an unfair labor practice. Supreme Court ruling on Dec. 10, 1991, 91Nu3789.


⑤ If an employer transfers employees to a different location of work in order to prevent them from joining the union and doing union work, the employee transfer is an act of unfair labor practice.

The reason given by the employer for such employee transfer was to fill vacancies at the location to which they were transferred. The real reason, however, was to prevent them from joining the union and engaging in union activities. Therefore, the transfer amounts to an act of unfair labor practice. Furthermore, the dismissal of those employees because they failed to follow the transfer instructions also constitutes unfair dismissal. Supreme Court ruling on Nov. 13, 1992, 92Nu9425.


2) Conditional Contract (Yellow dog contract)


Article 81 (Unfair Labor Practices)
2. Employment of a worker on the condition that he should not join or should withdraw from a labor union, or on the condition that he should join a particular labor union, provided that in cases where the labor union represents two-thirds or more of the workers working in the workplace concerned, a collective agreement under which a person, who is employed on condition that he should join the labor union, shall be allowed as an exception. In such cases, no employer shall act against a worker on the grounds that the worker is excluded from the labor union concerned;


A yellow dog contract provides employment to a worker on the condition that he/she should not join or should withdraw from a particular union. The condition also guarantees continuous employment.

① It is illegal to strictly control admission to the labor union in the Union Shop Contract.

The labor union is not allowed to refuse an eligible employee membership in the union. In cases where all employees join the labor union in accordance with the Union Shop provision in the collective agreement, the employer shall dismiss employees who withdraw from union membership upon the labor union’s request, despite the collective agreement being silent on the issue. Accordingly, when the labor union refuses admission of an employee, this will directly lead to a condition where the employer shall dismiss the employee because the employee does not hold union membership. Unless there is a special reason (e.g., he was expelled from the union) applicable to the union member, the union cannot reject/her his application for membership. It is illegal and unfair to have restrictions for membership. The restrictions typically found are that the employee must receive prior approval from the labor union in order to join the labor union or the employees who withdraw from union membership should receive a concurrent vote of a two-thirds majority of the members present in the Representatives Meeting or the General Meeting if he wants to join the labor union after withdrawing. Accordingly, under no special condition, enforcing such restrictions is an abuse by the labor union in a good-faith principle. Supreme Court ruling on Oct. 29, 1996, 96Da25599.


② The scope of employees engaged in the workplace under the Union Shop Contract.

According to the proviso of Article 81(2) of the Trade Union Act, in cases where a labor union represents at least a two-thirds majority of employees in the workplace concerned, a collective agreement, where every employee is hired on condition that he/she join the labor union, which is called a Union Shop Contract, can be allowed as an exception. In these cases, the scope of employees engaged in the workplace means employees who are eligible for union membership among all employees by Article 2(1) of the Act, excluding an employer or other persons who always act in the interest of the employer according to Article 2(4) of the Act. MOEL Guidelines: Nojo 68107-450, on May 22,2002.


③ If a collective agreement provides for a union shop system in which every employee is a member of the union, should the employer dismiss an employee who has departed from the union?

Under the union shop system, which is intended to strengthen the bond among the union members, a precondition for employment is to join the representative union. If a collective agreement includes a clause on union shop, the employer is obliged to dismiss an employee who has walked out of the union, even if there is no additional clause. However, the employer's obligation to dismiss an employee departing from the union is simply his/her obligation under the collective agreement. It cannot always be said that the employer's non-compliance with the obligation constitutes his/her unfair intervention in or domination over the union, which is an act of unfair labor practice. Supreme Court ruling on Mar. 24, 1998, 96Nu16070.


3) Refusal of the right to collective bargaining


Article 81 (Unfair Labor Practices)
3. Refusal or delay in the execution of a collective agreement or other collective bargaining arrangement, without justifiable reason, with the representative of a labor union or with a person authorized by the labor union;


Refusal or delay of the execution of a collective agreement or other collective bargaining without justifiable reason with the representative of a labor union or person authorized by the labor union is considered an unfair labor practice.

① Is it an unfair labor practice for the employer to refuse to engage in collective bargaining when the labor union has violated the collective agreement’s prohibition regarding non-delegation to a third party?

If the collective agreement contains an article that stipulates both labor and management shall not delegate their negotiation rights to a third party, both parties must follow this. In cases where the labor union violates the above article and delegates its bargaining rights to a third party (e.g., an umbrella labor union), the employer can request direct negotiations with its counterpart labor union. If this has caused a delay in collective bargaining, it is hard to deem it an unfair labor practice by the employer under the Act. MOEL Guidelines: Nojo 01254-477, on May 28.1997.


② Criteria for evaluating justifiable causes to refuse to engage in collective bargaining

In deciding whether there is a justifiable reason to refuse collective bargaining, consideration shall be given to the labor union’s positions, including the requested time and place, items and attitude, and shall be evaluated by the standards of whether the employer can implement such collective bargaining requests generally. Supreme Court ruling on May 22, 1998, 97Nu8076.


③ Is it an unfair labor practice for the employer to refuse the labor union’s request for collective bargaining because of a structural change within the labor union and despite the current collective agreement still being effective?

In cases where the company-level labor union has been restructured to a branch union or a unit union of the industrial union association, the branch union or unit union still maintains organizational identity as the existing company-level labor union. This means the current collective agreement will continue to remain effective during this period. Therefore, labor and management shall not demand change or abolition of the current collective agreement during its term of validity. MOEL Guidelines: Nojo 68107-508, on Apr. 28, 2001.


④ Is it justifiable for the labor union to demand collective bargaining over an objection to the reappointment of a university’s president or the resignation of its chief director?

The Trade Union Act does not stipulate clear rules regarding the object of collective bargaining, but the purpose of collective bargaining is to negotiate conditions of employment. Therefore, the object of collective bargaining shall be to negotiate matters within the employer’s range of authority, be related to the determination of conditions of employment, and be of a collective characteristic. Matters belonging to the employer’s personnel and management rights shall not be the object of collective bargaining in principle, but such matters which are closely related to working conditions can be the object of collective bargaining within a certain limit. Even in this case, such demands intrinsically infringing on the employer’s right of determination cannot be justifiably be allowed. MOEL Guidelines: 68107-672. on Jun. 9, 2001.


⑤ In cases where the labor union requests collective bargaining during the term of the current agreement regarding matters not addressed in the previous collective bargaining process, can the employer reject such a demand?

A collective agreement concluded legitimately by labor and management is a standard order regulating labor and management relations and shall be implemented in good faith by both labor and management during its effective period. It is a principle that both sides shall not demand change or abolition during the agreement’s effective period, unless there is a substantial change required.

Where the labor union requests renegotiation only because some matters were not addressed in the existing collective agreement, this demand violates the duty to maintain peace inherent in the collective agreement. In this case, although the employer rejects the labor union’s demand, this is a justifiable refusal. MOEL Guidelines: Nojo 68107-166. on Feb. 22, 2002.


⑥ In cases where a person whose dismissal was legally confirmed demands collective bargaining with the assistance of a labor union representative, is it an unfair labor practice if the employer rejects his request for collective bargaining?

According to the proviso of subparagraph (D), Article 2(4) of the Trade Union Act, a dismissed employee who has applied to the Labor Relations Commission for remedy for unfair labor practices shall not be regarded as a non-employee until a review decision has been made by the National Labor Relations Commission. According to this question, the labor union representative was dismissed and then applied to the Labor Relations Commission for remedy for unfair labor practices. If his application to the National Labor Relations Commission for a review decision is rejected, the dismissed labor union representative cannot be deemed an employee under the Trade Union Act from the time of the review decision and loses qualification as a labor union representative under Article 23 of the Trade Union Act. Even though qualification for labor union membership (according to the Constitution) is still maintained despite the provisions of the Trade Union Act, his dismissal shall not be interpreted differently. MOEL Guidelines: Nojo 68107-551. on Oct. 22, 2003.


⑦ In the collective bargaining process for the renewal of a wage issue under the collective agreement, is it justifiable to demand collective bargaining about personnel matters already stipulated in the existing collective agreement?

The present Trade Union Act only regulates that the effective term for the collective agreement cannot exceed two years, but there are no other regulations regarding how to classify the issues for collective bargaining and how to negotiate each collective agreement. Accordingly, the parties to labor relations can engage in collective bargaining regarding wages and other issues, and separately conclude wage and other general agreements respectively stipulating different effective terms for each one. In these cases, both parties shall observe the contents of the collective agreements during each effective term, unless there are special circumstances that merit otherwise.

Because the effective term of the current collective agreement regarding general matters (other than wages) will remain for a considerable period, it is not justifiable for the labor union to request collective bargaining about other matters besides wages in the negotiating process to renew the wage agreement. Even if the employer insists on negotiating only wages from the labor union’s additional demands, it is not justifiable to consider this an unfair labor practice. MOEL Guidelines: Nojo 68107-599. on Nov. 24, 2003.

⑧ When does an employer’s refusal or neglect to conduct collective negotiations amount to unfair labor practice?

An employer commits an unfair labor practice when he/she rejects or neglects to conduct collective negotiations without objective, justifiable reasons. Meanwhile, in order to determine whether the reasons are justifiable or not, it is necessary to take into consideration all relevant factors, such as the union negotiators, the time and place demanded by the union for negotiations, the issues subject to bargaining, and the employer's behavior towards collective bargaining. If the result is that, from circumstantial evidence, it is not possible to expect him/her to sit at a negotiating table, the reason given by the employer will be regarded as justifiable. Supreme Court ruling on May 22, 1998, 97Nu8076.


4) Domination, interference, or support of operational expenses


Article 81 (Unfair Labor Practices)
4. Domination of or interference in the organization or operation of a labor union of workers, and the payment of wages to a full-time officer of a labor union or financial support for union operations; Provided, that it may be justified when the employer allows workers to consult or bargain with him during working hours, and it shall be allowed as an exception that the employer contributes funds for the welfare of workers, or for the prevention and relief of economic or other misfortune, or that the employer provides a labor union with an office of minimum size.




① The employer refuses to allow a labor union to be established
② The employer recommends and seeks to persuade employees to join a company-controlled union
③ The employer establishes a subcontractor company and pushes the union members into the subcontractor company in an attempt to break up the union
④ The employer establishes an anti-union organization such as a non-union members' organization
⑤ The employer pretends to shut down the company
⑥ The employer disturbs or monitors union members at union meetings
⑦ The employer orders a full-time officer of the union to return to a previous job
⑧ The employer attempts to bribe the union officers
⑨ The employer makes comments or opens a lecture with anti-union related content
⑩ The employer intentionally fails to deduct the union fees that have normally been deducted
⑪ The employer surveys the union members on union operations
⑫ The employer dismisses an employee upon request from a union officer


① Can the employer’s personal speeches be considered domination of or interference with the organization or operation of a labor union?

Domination or interference as an unfair labor practice under Article 81 (4) of the Trade Union Act means the employer’s behavior infringes on the labor union’s independence in union activities. Whether the employer’s behavior is considered an unfair labor practice or not shall be decided based on a consideration of the situation and place where the behavior occurred, the contents and method, and influences on the labor union’s operation or activities, and whether the behavior was performed with the intent to dominate or interfere with the labor union’s organization or operation. Supreme Court Ruling on May 22, 1998, 97Nu8076.


On the other hand, the employer himself/herself has freedom of speech to express his/her own opinion through speeches, letters, etc. according to Article 21 of the Constitution. Therefore, appropriate harmony is required to adjust the interests of the two opposing articles. Domination or interference is found in cases where the employer’s behavior (e.g., through speeches and letters) in relation to justifiable union establishment and operation are generally seen to infringe on the independence of the labor union through compulsion or coercion, suggestive or influencing behavior, etc. However, it is hard to treat it as unfair labor practice that the employer simply brings forth counter arguments to indicate or criticize its faults, and expresses his/her own opinions about the company’s conditions and progress of the collective bargaining process. MOEL Guidelines: Nojo 68107-745. on Jun. 30, 2001.


② Is it an unfair labor practice to unilaterally stop paying a full-time union officer’s wages?

Subparagraph (E) of Article 92(1) of the Trade Union Act stipulates that an employer who violates the part of a collective agreement to provide facilities and convenience will be fined 10 million won or less. Providing convenience in the above article refers to every behavior of the employer who promised to provide things necessary for union activities, and so the above article for payment of a full-time union officer’s wages shall be seen as one method of providing convenience to the labor union. Accordingly, if the employer does not implement it, despite the collective agreement stipulating provision of a full-time union officer’s wages, this is an unfair labor practice under subparagraph (E) of Article 92(1) of the Act.

On the other hand, an unfair labor practice means a behavior of the employer showing disregard for the union and which intends to obstruct union unity. If the employer has paid the full-time union officer’s wages according to the collective agreement but suddenly stops with the explicit and implied intension of weakening the activities of and unity within the labor union, then it is an unfair labor practice (domination and interference) under Article 81(4) of the Act. However, if the wages are stopped because of an unavoidable situation going on with the company, such as financial problems, but without the intent to engage in an unfair labor practice, then this violation can be considered non-fulfillment of the collective agreement, but not an unfair labor practice. MOEL Guidelines: Nojo 68107-870, on Aug. 1, 2001.


③ When company executives induced the union members to oppose the work-to-rule action of the union, such an act is an unfair labor practice.
The president and managing director of the company in question had separate meetings with some union members to persuade them to work as usual instead of resorting to work-to-rule. The consequence was that some union members opposed the proposed work-to-rule and decided to work in the same way as usual. The company executives committed an unfair act of interference with the union operations. Supreme Court ruling on Dec. 10, 1991, 91Nu636.


④ If an employer makes a speech before the employees in order to weaken union activities, this constitutes unfair labor practice.
The company president in question gave an address at the closing of the business year, saying that the union should not have come into being; that, in light of the organizational structure of the company, there were limitations on union activities; that he hoped the union would not be a further source of tension and dispute; and that he did not want to have to have every employee resign from the company and fill the vacancies with new employees. It was quite clear that his address was intended to confirm his opposition to the union and weaken it. Making such an address is an act of unfair labor practice. Supreme Court ruling on May 22, 1998, 97Nu8076.


⑤ When, as a result of strong demands and actions by the union, full-time union officials and union executives have come to receive wages from the employer, such wage payment by the employer is not an act of unfair labor practice.

Unless there is a high likelihood that such wage payment will jeopardize independence of the union, simply paying wages to full-time union officials is not an unfair labor practice. In addition, considering that such wage payment is a result of the union's strong demands and actions, it does not seem a likely threat to the union's independence and autonomy. Supreme Court ruling on May 22, 1990, 90Nu639.


⑥ Perpetrator of unfair labor practice Supreme Court ruling of Mar. 25, 2010, 2007doo8881 【Unfair labor practice】


In cases where a person supervises and manages the employees substantially regarding basic working conditions, just like their real employer having authority over and responsibility for the employees he/she has hired, if such person dominates or intervenes in the labor union's organization or operations in a way that falls under Paragraph 4 of Article 81 of the Trade Union Act, that person shall be deemed the employer who must follow any order for correction of such actions, and shall be considered to have an equivalent position to an employer. Accordingly, if a primary contractor supervises subcontractor employees or determines their basic working conditions through a separate employment contract, and if that primary contractor cancels the contract with the subcontractor company to discourage or infringe upon the activities of the subcontractor's labor union, said contractor would be deemed the perpetrator of unfair labor practice and would need to carry out any correction order according to Paragraph 4 of Article 81 of the Trade Union Act.