CONTENTS
- 1. Unfair Labor Practice | The Three Labor Rights of Workers Guaranteed by the Constitution
- 2. Unfair Labor Practice | Specific Examples
- - What Is an Employer's Violation of the Duty of Fair Representation?
- - Considerations Such as Support for Union Operating Expenses
- 3. Unfair Labor Practice | Remedy System and Sanctions for Violations
- - Procedure for Applying for Remedy to the Labor Relations Commission
- - Emergency Compliance Order System
- - Petitions, Criminal Complaints, and Accusations to Local Labor Offices
- - A Brief Summary of the Remedy Procedure for Unfair Labor Practices
- 4. Unfair Labor Practice | Evidence to Collect
1. Unfair Labor Practice | The Three Labor Rights of Workers Guaranteed by the Constitution
An unfair labor practice is where an employer subjects a worker to disadvantageous treatment on the ground of legitimate trade union activity, or where the employer dominates or intervenes in union activity.
It refers to any act that infringes on a worker's legitimate three labor rights, and the Trade Union and Labor Relations Adjustment Act (hereinafter the Trade Union Act) expressly prohibits an employer's unfair labor practices.
A violation is a matter that may give rise not only to a remedy through the Labor Relations Commission but also to criminal punishment.
Because the unfair labor practice system is a foundation of labor relations law and a mechanism for maintaining the balance of power between labor and management, both employers and workers may need to understand its meaning and procedures accurately.
2. Unfair Labor Practice | Specific Examples
Under Article 33 of the Constitution, workers have the independent rights to organize, to bargain collectively, and to take collective action.
An employer who prohibits or imposes a disadvantage on a worker's labor activity based on these rights may be subject to imprisonment of up to two years or a fine of up to 20 million won.
Unfair labor practices from the employer's standpoint are as follows. In such cases, they become subject to an unfair labor practice report.
- The employer dismisses or disciplines a worker on the ground of joining a trade union.
- Employment on the condition of joining or withdrawing from a particular union
- Refusing or breaking off collective bargaining without a justifiable reason
- The employer's domination of or interference with trade union activities
- The employer encourages or induces the establishment of a union.
- The employer obstructs or prohibits the establishment of a union.
- Interfering with or obstructing the procedure for unifying bargaining channels
- The employer's violation of the duty of fair representation
- The employer's subsidizing of union operating expenses and payment of wages to full-time union officials
What Is an Employer's Violation of the Duty of Fair Representation?
The duty of fair representation is the duty of the representative bargaining trade union and the employer not to discriminate, without reasonable grounds, between trade unions that participated in the procedure for unifying the bargaining channel or between their members.
The party bearing the duty of fair representation is, in principle, the representative bargaining trade union, but the employer also has a duty not to discriminate between trade unions without reasonable grounds.
Considerations Such as Support for Union Operating Expenses
In determining whether there is a risk of infringing the independent operation or activities of a trade union, the following matters should be considered.
- The purpose and circumstances of the operating-expense subsidy
- The frequency and period of the subsidized operating expenses
- The amount of the subsidized operating expenses and the method of subsidy
- The proportion of the subsidized operating expenses in the union's total income
- The management method and use of the subsidized operating expenses
3. Unfair Labor Practice | Remedy System and Sanctions for Violations
Where a right has been infringed by an unfair labor practice, the affected worker or the trade union may file an application for a remedy with the competent regional labor relations commission.
The Labor Relations Commission rules on the unfair labor practice through investigation and examination related to the remedy application, and where it is established, it issues a remedy order to the employer.
If a union member is dismissed and files an application with the Labor Relations Commission for a remedy for an unfair labor practice, the member is regarded as an employed worker until the National Labor Relations Commission renders a decision on reexamination.
Procedure for Applying for Remedy to the Labor Relations Commission
After preparing an application for remedy for an unfair labor practice, it is filed with the Regional Labor Relations Commission.
The worker or the labor union submits two copies, attaching supporting materials for the application for remedy, to the Regional Labor Relations Commission having jurisdiction over the location of the business.
The application for remedy must state the following matters.
- The worker's address and name
- The employer's address and name
- The specific facts of the unfair labor practice
- The content of the remedy sought
In this case, the application for remedy must be made within three months from the date on which the unfair labor practice occurred. (For a continuing act, within three months from the date of its termination.)
The judgment committee that adjudicates unfair labor practices is composed of three public-interest commissioners in charge.
With all members present and a majority in favor, a resolution on the unfair labor practice is made and the decision is notified.
Recent Supreme Court decision on unfair labor practices (Decision 2023Du41864)
The Supreme Court presented a new legal principle regarding the "continuing act" in calculating the three-month period for an application for remedy under the Trade Union and Labor Relations Adjustment Act.
It held that where a wage disadvantage arising from an employer's performance evaluation, omission from promotion, and the like continues for a certain period, it may be judged as a single continuing act, making an application for remedy possible.
Emergency Compliance Order System
If an employer fails to comply with a remedy order for an unfair practice issued by the National Labor Relations Commission and files an administrative litigation, the competent court may, on the application of the National Labor Relations Commission, order compliance with all or part of the remedy order until the judgment becomes final.
The decision may be revoked on the application of a party or ex officio.
Petitions, Criminal Complaints, and Accusations to Local Labor Offices
A worker or labor union that has suffered harm from an unfair labor practice, such as illegal subsidization of operating expenses or an unlawful collective agreement, may request the punishment of the employer through a complaint or accusation to the Ministry of Employment and Labor.
In this case, it may be pursued in parallel with an application to the Labor Relations Commission for remedy of an unfair labor practice.
Through this, corrective directions may be issued, such as a personnel order for reinstatement and payment of unpaid allowances.
A Brief Summary of the Remedy Procedure for Unfair Labor Practices
4. Unfair Labor Practice | Evidence to Collect
Type of evidence | Materials proving an unfair labor practice |
Employer statements and instructions | Recordings of a supervisor's statements urging withdrawal from the union, and minutes of interviews or meetings |
Electronic data and written documents | Emails, text messages, internal notices, and personnel order documents |
Comparative materials | A comparison table of personnel and disciplinary actions with other employees, and performance evaluation materials |
Internal union materials | Attendance records of meetings, bargaining demand letters, bargaining minutes, and event photographs |
Witness statements | Statements and fact confirmation documents of fellow employees and union officials |
The unfair labor practice system is a mechanism essential to realizing the fundamental rights of workers guaranteed by the Constitution, and it carries significant meaning for the balance and trust in labor-management relations.
An employer should thoroughly review measures that may be mistaken for unfair labor practices in order to exercise reasonable and legitimate personnel authority, and the union side as well needs to understand the Labor Relations Commission system and the trend of case law in order to protect its rights, and to respond promptly where a disadvantage is anticipated.
In addition, in the case of a dismissal based on unlawful union activity or an unlawful industrial action, the matter may need to be analyzed from the perspective of a labor attorney and a labor law attorney.
In such a case, the worker may file both an application for remedy for an unfair labor practice under the Trade Union and Labor Relations Adjustment Act and an application for remedy against unfair dismissal under the Labor Standards Act.
If you require a prompt consultation regarding an unfair labor practice dispute, you may leave a reservation through the link below.
This firm operates branch offices in each region, so consultations are available promptly, and it has established a video consultation system, which you may take into account when making a consultation reservation.
