SOUTH KOREA Law and Practice Contributed by: Sihoon Yang, Young Min Kim, Jung Mo Hong and Douglas Hwang, Yoon & Yang LLC
6. Collective Relations 6.1 Unions
Neither the Trade Union Act nor any other relevant laws provide methods for appointing or electing a representative of a trade union. Therefore, the meth - ods and procedures for appointing or electing a trade union representative are determined through by-laws or internal regulation of the trade unions, and the trade union representative should be appointed or elected accordingly. As a result of the implementation of the 6 July 2021 amendment to the Trade Union Act, dismissed employees and job-seekers may join a company’s union. However, union members who are not cur - rent employees of the company are subject to certain limitations in their union activities. By way of example, non-employee union members may only engage in union activities to the extent that such activities do not hinder efficient operation of the company’s business, and they may not serve as an officer of the union. Fur - thermore, the number of non-employee union mem - bers is not counted for the purposes of: • determining the limits of working hours exemption; • selection of the union representative for collective bargaining; and • voting for or against taking industrial action. 6.3 Collective Bargaining Agreements “Collective agreement” refers to a written agreement that details the terms of trade union members’ work - ing conditions (eg, their wages and working hours) that have been negotiated through the collective bar - gaining process. Collective agreements are signed and executed by and between the trade union and the employer. Collective agreements not only define the contractual obligations of the parties, but also have a normative effect in regulating the employment contract between the employer and individual employee. By way of example, Article 33 of the Trade Union Act invalidates portions of the employment contract or the employer’s rules of employment that fall foul of the standards for working conditions stipulated in the collective agree - ment. In other words, a collective agreement that has been entered into on an equal footing between the workers and the management takes precedence over
Article 2.4 of the Trade Union and Labor Relations Adjustment Act (the “Trade Union Act”) defines a trade union (ie, a labour union) as “an organisation or associated organisations of employees, which is [or are] formed voluntarily and collectively upon the employees’ initiative for the purpose of maintaining and improving their working conditions and enhanc - ing their economic and social status”. However, such organisation or associated organisations of employ - ees is/are not considered as a trade union if: • an employer or other person who always acts in the interest of the employer is allowed to join; • most of the union’s expenditure is funded by the employer; • its activities are only aimed at mutual benefits, moral culture and other welfare undertakings (as opposed to enhancing employees’ working condi - tions); • those who are not employees are allowed to join the union; or • the main purpose of the union is to engage in political activities. The most important function and role of a trade union is engaging in “collective bargaining” with the employ - er and thereby executing a “collective agreement” to foster enhancement and preservation of employees’ working conditions (see Articles 29 and 31 of the Trade Union Act). In addition, trade unions may engage in “collective actions” to carry through their position in a dispute with the management arising from disagreements concerning working conditions (see Articles 2.5 and 2.6 of the Trade Union Act). 6.2 Employee Representative Bodies Article 29 of the Trade Union Act confers on the repre - sentative of a trade union the authority to bargain and enter into a collective agreement with the employer on behalf of the trade union and its members. Hence, any by-laws or internal regulations applicable to trade unions that limit the foregoing authority of a trade union representative are deemed invalid.
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