How can the legitimacy of industrial action be judged?

Hello. This is a corporate specialist attorney from Daeryun Law Firm.

Industrial action falls within the scope of the labor union's constitutionally guaranteed right to collective action, but not all industrial actions are automatically recognized as legitimate.

The legitimacy of industrial action is judged by comprehensively reviewing substantive requirements, procedural requirements, and its subject, purpose, and means.

First, substantively, a labor dispute situation must exist. That is, disagreement between labor and management regarding the determination of working conditions must be presupposed.

Procedurally, the conditions required by the Trade Union and Labor Relations Adjustment Act, such as pre-mediation procedures and union member referenda, must be met. However, meeting these procedures does not immediately mean that the legitimacy of purpose is also recognized.

For the purpose of industrial action to be legitimate, first, it must be directly or indirectly related to the maintenance and improvement of working conditions within the scope of not denying the private property system.

Second, it must be matters within the scope of the employer's disposable authority.

Third, it must be matters concerning collective interest disputes. If it deviates from these requirements, the legitimacy of purpose may be denied.

Particularly when multiple demands are presented in industrial action, even if some demands appear formally to be about working conditions, if the actual main purpose is opposition to the employer's management rights or national policy decisions, its legitimacy is evaluated differently.

If the legitimacy of industrial action is denied, that action may be evaluated as illegal industrial action, which may extend to civil damage compensation liability, business obstruction liability, and criminal liability issues.

Conversely, the response method must also be careful so that the company is not mistaken for having engaged in unfair labor practices.

From the company's position, structural analysis of the substantive content and true purpose of collective bargaining demands, legal review of whether they are demands beyond the employer's disposable authority scope, and careful verification of whether the means and methods cross legal limits when industrial action begins are necessary responses.

Since legitimacy of purpose is the key issue in industrial action, it is desirable to inspect the legal structure of industrial action and establish a response strategy before disputes fully begin.

Our firm provides specialized advice on overall corporate labor matters including judgment of legitimacy of industrial action, collective bargaining strategy formulation, illegal industrial action response, and damage compensation claims.

We recommend receiving structural review at the stage before disputes expand.