Back-to-Work Order: Outdated legal boundaries of the fundamental labour rights

Abstract

Back-to-Work Order:Outdated legal boundaries of the fundamental labour rights Aelim Yun (bio) On 24 November 2022 the Owner-Truckers' Solidarity Union (hereafter "TruckSol") went on a national strike. Just after a few hours, President Yoon and the Minister of Land, Infrastructure and Transport stated their intention to issue a 'Back-to-Work Order' to the striking owner-truckers, violation of which carries heavy fines or prison sentences and revocation of licence for trucking transport service. On 29 November, the Korean Government actually issued the Back-to-Work Order to bulk-cement trailer drivers whose strike could disrupt construction work. Even before the strike, the Government has decried owner-operators' collective action as illegal. The public authority has long maintained that owner-operators cannot do legitimate collective action as they are not "employees" under Korean labour laws. Moreover, the Government has directly cracked down on the strike of TruckSol since their collective action could disturb logistics in which large corporations have a dominant position. In this article, I explain legal and political debates over an "employee" under labour regulations in Korea. Further explanation about the criteria for the "legitimate collective action" under labour regulations will follow. In conclusion, I explore the implications of legal tools such as the Back-to-Work Order for suppressing freedom of association and the right to strike. Legal debates over an "employee" in Korea In Korea, an "employee" is entitled to labour law protection. Traditionally, the definition of an "employee" in labour laws was basically interpreted as a person working in an employment relationship. While various indicators regarding the existence of an employment relationship were listed in judicial precedents, the courts traditionally noted such factors as whether the employer exerted direction or supervision over the performance of work, and whether the employer offered remuneration for the price for labour. In other words, many judicial precedents have interpreted the existence of direction/supervision as exerting detailed directions over performance of work, for example, asking whether or not a hirer instructed drivers to take specific roads. Moreover, the courts quite often denied a worker the status of "employee" in cases where the worker owned the work tools such as a truck or provided his/her labour for multiple hirers. Such a narrow interpretation of the employment relationship has contributed to an increase in "bogus self-employed". In the Korean road freight transport sector, for example, most trucking companies forced their drivers to become "independent contractors" since the 1990s. Additionally, the government legitimated previously illicit practices of the trucking transport business in the use of owner-operators through the amendment of the Trucking Transport Business Act (TTBA) in 1997. In such regulatory changes, trucking companies were not required to own trucks or hire drivers, and they just contracted out the entire performance of carriage to other subcontractors or owner-operators. As a result, the trucking transport sector is characterised by a multi-layered structure of subcontracting and the widespread use of owner-operators. A survey in 2020 found that the level above the tri-level of subcontracting accounted for 20.3 percent in the trucking sector. It was also reported in 2018 that these owner-operators accounted for over 91.5 percent of all truck drivers1. As these owner-operators have their own trucks and bear the expenses of the operation of vehicles, they have been regarded as "independent contractors" or the "self-employed". In reality, however, they are dependent on the particular freight transport companies or transport buyers, and they drive trucks by themselves without employing others. Commercial pressures passed down through multi-layered subcontracting lead to reductions in truck drivers' rates. Owner-operators are the most vulnerable, as they often must absorb the costs of ownership, maintenance, and other vehicle-operating costs, while they may not be protected from labour protection such as statutory minimum wage and working hours regulation. Against this, owner-operators attempted to form trade unions to improve their working conditions. In 2002, owner-operators in the trucking transport sector formed a union – called "Cargo Truckers' Solidarity Union" (TruckSol), which was a special branch of the existing union (the Korean Cargo Transport Workers Federation)2. Under Korean labour laws, all...