Focus: Industrial action and liability in Korea

Abstract

INTERNATIONAL union rights Page 6 Volume 22 Issue 1 2015 A right that is nominally protected by the Constitution and by law is in practice limited by the action of government, by employers, and by the courts simple: the strike was carried out during a period of ‘arbitration by authority’, which was forbidden in accordance with the TULRA. This system of arbitration by authority was later abolished after being fiercely criticised by various organisations both at home and abroad, including the ILO Committee of Freedom of Association, which argued that the system infringed on workers’ right to strike. The existing system was then replaced by a new minimum essential service system. However, this newly introduced system is significantly different from the ILO’s essential services. Nonetheless, the Constitutional Court of Korea and the Supreme Court did not change their ruling or views that the arbitration by authority system was constitutional. Since then, there have been some positive changes to the labour laws and some of the laws that previously breached basic labour rights were repealed. What is more important, however, is that, as seen in the aforementioned rulings, the law maintains that workers are subject to civil and criminal liabilities simply for their decision to not provide their labour, even during the most peaceful strikes that do not bring harm to others or cause active interference. Criminal liability The most common penalty imposed on an industrial action in Korea is ‘interference with business’ as stipulated by the Criminal Act. Conceptually, the industrial action in the TULRA is almost completely in line with the elements that constitute the penalty for interfering with business, except that the term ‘threat or force’ is open to interpretation. The Supreme Court upholds the view that an industrial action is an action where workers unite to apply pressure on the employer and by nature it includes an element of business interference by the usage of threat or force. In Korea, where the confrontation between labour and management takes place at the individual corporate level, one of the most widely employed methods is workplace occupation , used to directly hinder the exercise of the employer’s rights. For this reason, most industrial actions, regardless of what the individual union members and officials do specifically, are punished for interfering with business. Ironically, an industrial action on one hand is a basic right guaranteed by the Constitution while on the other hand it is classified as a crime under the Criminal Act. The legal reasoning used to help resolve such irony from a juridical approach is the justifiability of an industrial action; only when an industrial action as a whole is justifiable can its illegality be denied and can the union avoid penalty for interfering with business. Unusual T he Constitution of the Republic of Korea guarantees the right to organise and collective bargaining and the right to collective action together for workers. The term ‘collective action’ used here is understood in a wider context to also embrace collective actions taken by workers , including strikes. During labour disputes, trade unions employ various tactics, aside from strikes, such as slowdown, picketing or workplace occupation. Accordingly, the Trade Union and Labour Relations Adjustment Act (‘TULRA’) defines the term ‘labour dispute’ very broadly to include various types of actions taken by the parties in the labour relations that hinder a normal operation. The TULRA also prohibits the State and employers from subjecting the participants in the industrial action to civil and criminal liabilities. As such, ‘collective action’ or ‘industrial action’ are broader than ‘strike’ in concept, and are guaranteed by the Constitution. Moreover, the immunity clauses in the TULRA recognise industrial action as an extensive right of the workers. In reality, however, such is not the case. An intensely negative view prevails with regard to the functions and roles of industrial action - a form of collective communication and expression of opinion - and, as such, industrial action is rendered powerless and vulnerable by the government’s abuse of its punitive power as well as by employers’ claims for damages and retaliatory dismissals. Due to labour-related laws that broadly limit and prohibit industrial action as well as the court’s arbitrary interpretation of these...