Industrial action

Industrial action (쟁의행위) means strike, sabotage, lock-out or other labor disputes. Article 1 (Purpose) of the Labor Adjustment Act
 * The purpose of this Act is to maintain and improve the working conditions of workers and enhance their economic and social status by  guaranteeing the rights of association, collective bargaining, and collective action as prescribed in the Constitution, and to contribute to the maintenance  of industrial peace and the development of national economy by preventing and  resolving industrial disputes through the fair adjustment of the labor  relations.

Article 2 (Definition)
 * For the purpose of this Act, the definitions of terms shall be as follows:
 * 1 through 4. Omitted
 * 5. The term "industrial disputes" means any controversy or difference arising from disagreements between a trade union and an employer or employers'  association (hereinafter referred to as the "parties to labor relations") with  respect to the determination of terms and conditions of employment as wages, working hours, welfare, dismissal, and other treatments. In this case, the  disagreements refer to situations in which the parties to labor relations are no  longer likely to reach an agreement by means of voluntary bargaining even if they continue to make such an attempt; and
 * 6. The term "industrial actions" means actions or counter-actions which obstruct the normal operation of a business, such as strikes, sabotage, lock-outs, and other activities through which the parties to labor relations intend to accomplish their claims.

Article 4 (Justifiable Activities)
 * Article 20 of the Criminal Act shall apply to justifiable activities which are conducted to achieve the purpose of Article 1 as collective bargaining, industrial action and other activities by trade unions: Provided, That acts of violence or destruction shall not be construed as justifiable for  any ground.

It is questionable whether or not an industrial action on which members of labor union did not ballot for approval or disproval. The Supreme Court rendered the following Full Bench Decision 99Do4837 on October 25, 2001.

Majority Opinion
If an industrial action of workers is to constitute a justifiable action under the  Criminal Act, the following conditions must be met and satisfied:
 * (i) the leader of such action must be qualified to be a representative of the labor to the  collective bargaining,
 * (ii) the purpose of the industrial action is to promote and facilitate self-governing negotiations between labor and management for the  improvement of working conditions,
 * (iii) the industrial action should commence when the employer rejected the collective bargaining in response to the specific  request of workers for the improvement of their working conditions, but without  extraordinary circumstances, the procedures required by applicable laws and  regulations including the decision by union members on approval of the  industrial action must be carried out, and
 * (iv) the means and way of the industrial action must be harmonious with the employer's property right and shall not constitute the exercise of violence.

In particular, with respect to the procedures for the industrial action, Article 41 Paragraph (1) of the Trade Union and Labor Relations Adjustment Act (the "Labor Adjustment Act"), which provides that the industrial action must be concurrent with the affirmative votes by a majority of union members by a direct, secret and unsigned ballot, is established for the purpose of promoting the independent and democratic management of labor union and ensuring that the decision on the intent of labor union to commence the industrial action should be carefully made, so that the participants in the industrial action will not have any unfavorable consequences after engaging in the industrial action in respect of whether or not the industrial action is justifiable. Accordingly, unless an objective circumstance that made it impossible for the labor union to comply with the required procedures may be duly recognized, the industrial action that violated the above procedures lost its justification.

Contrary to the foregoing, it may be interpreted that even in case where the voting procedures required under Article 41 Paragraph (1) of the Labor Adjustment Act were not carried out before the industrial action commenced, if democratic decisions could be secured as a matter of fact, such failure is merely adefect in the decision-making process in side the labor union, and the justification of the industrial action was not lost, accordingly.

If such interpretation is acceptable, then, such methods as vote by proxy, public resolution or after-the-fact resolution, or considering the decision on industrial action as virtually approved could be accepted, as well. Resultingly, such opinion contravenes the above relevant provisions and the intent and purpose of the Korean Supreme Court precedents.

Accordingly, having an different opinion from the above in this respect, we subsequently modify the Supreme Court Judgment 99Do4836 dated May 26, 2000 which held in its ruling that even in case where the industrial action commenced without obtaining the affirmative votes by a majority of union members by a direct, secret and unsigned ballot, if the democratic decisions could be virtually secured by union members, the industrial action shall not be deemed to lose its justification simply because the required voting procedures were not implemented as above, to the extent that such judgment is not consistent with the above in this section.

Dissenting Opinion
Although the majority opinion on the yes-or-no vote of union members is generally regarded as proper and reasonable as the legal principles pertaining  to the justification of participation in an industrial action in the civil or  administrative cases that hold labor unions or workers to be liable for damages  arising from the industrial action or that hold workers participating in the  industrial action to be liable for disciplinary actions, we do not believe that  it is necessary to follow the logic of such legal principles in a criminal case  in which to decide to whether workers participating in the industrial action  should be held criminally responsible for the obstruction of  business.

Given that the right to collective action including the right to industrial action is the fundamental right of workers as guaranteed under the Constitution, the restriction on an industrial action should be limited to the  minimum extent necessary. In the same vein, in particular, the application of criminal sanctions on workers for industrial actions should be determined with prudence.

In light of the foregoing, instituting criminal sanctions on workers for industrial actions including the obstruction of business requires a higher  level of stricter criteria for illegality that applies to the evaluation of  industrial actions under civil or labor laws (so called theory on relativity of  illegality). Accordingly, when we discuss the justification of an industrial action, there may be the difference between the recognition of justification of  an industrial action to be exempt from criminal punishment and the recognition  of justification of an industrial action to be exempt from liabilities under  civil or labor laws.

In a circumstance where the right of workers to collective action including the right to an industrial action is guaranteed under the Constitution, an extreme care is required to be taken to punish workers which is  punishable in accordance with the general penal provisions under the Criminal  Act, for an industrial action on a charge of the obstruction of business,  including a simple work stoppage or slowdown in which workers merely refused to  work in a negative sense, involving no affirmative force or fraudulent schemes.

Accordingly, in case where the leadership, purpose, timing, means and method of the industrial action are all justifiable but such action has only certain  procedural defects, the illegality should be recognized only to the extremely limited extent, in punishing workers participating in the industrial action for the obstruction of business.

In light of the interpretation of the wordings of Article 41 Paragraph (1) and Article 91 Subparagraph 1 of the Labor Adjustment Act or the provisions of Article 37 Paragraph (2) (Leadership of Industrial Action) and Article 38 Paragraph (3) (Guidance and Responsibility of Labor Union) of the Labor Adjustment Act, the leadership, which is responsible for the implementation of the procedures of yes-or-no votes, is the executive council of the labor union (admittedly, which refers to the headquarter of the labor union, if the headquarter and branch concurrently exist).

Then, persons who should be punished for the commencement of an industrial action without the yes-or-no votes pursuant to Article 91 Subparagraph 1 of the Labor Adjustment Act ought to be limited to those who led the decision on the commencement of the industrial action without yes-or-no votes or aggressively engaged in such decision. Therefore, we believe it proper and reasonable that the members of labor union who participated in the industrial action under the instructions from the executive council of the labor union without leading or aggressively engaging in the decision thereon shall not be deemed to be those who should be subject to the punishment.

Even in imposing criminal sanctions against the ordinary union members who merely participated in the industrial action under the instruction  from the executive council of labor union without being involved in the decision  on whether to engage in the industrial action without yes-or-no votes, (i) the  majority evaluates their participation in the industrial action itself as  illegal solely due to the procedural violations and (ii) the majority  acknowledges that their participation constitutes the obstruction of business, without due regard to their status within the labor union or the degree of  participation. In such case, we are forced to conclude that the majority recognizes the scope of illegality of the industrial action too extensively in  terms of criminal sanctions, and on the other hand, is too lenient on the  components of the obstruction of business.

Holding different evaluations on whether or not an industrial action is illegal based the status of workers within the labor union or the degree of  participation in the industrial action does not contradict with theories on  illegality under the Criminal Act, in terms of instituting criminal sanctions  against the participants in the identical industrial action. The leadership, purpose, nature and the progress of the industrial action in general are should be considered, together with the research on the type of engaging in the  industrial action at the place of business at which such workers belong to and  the way and degree of participation of such workers in the industrial action, in  punishing workers for the obstruction of business in the event of an industrial action where a number of workers take collective actions through various type of  acts or failures to act and the way and degree of the participation in the industrial action vary depending on each individual worker. Based on the results of such consideration and research, it should be determined indivisually whether  or not such industrial action justifies its illegality, as an act that does not  contravene any established social rules.

In conclusion, we acknowledge that (a) the previous Supreme Court precedent which ruled that unless the objective circumstances that made it impossible for the labor union to comply with the required procedures are duly  recognized, the industrial action on which yes-or-no vote were not cast by union  members loses its justification and (b) the majority opinion that maintains such  precedent are reasonable and proper, as a general rule. The original judgment held in its ruling (to the extent understood as in the same vein, Supreme Court Judgment 99Do4836 dated May 26, 2000 is viewed to rule to the same effect) (i)  that the failure to implement the yes-or-no voting procedures is merely the  defect in the decision-making process within the labor union and (ii) that  since, given the number of participants in the industrial action, it appeared  that a majority of union members approved the strike, the procedures required  for the industrial action are not illegal solely due to the failure to take the  yes-or-no voting procedures. As long as it is understood as a general rule that applies in all case, such ruling misunderstood the nature of yes-or-no vote as  provided in the Labor Adjustment Act and thus, is deemed to be incorrect.

However, in punishing the industrial action, we believe that there may be instances where contrary to the above general rule, the mere work stoppage of  workers simply participating in the industrial action may not be regarded as  illegal depending on each of the cases, although no yes-or-no votes were cast. As officials at the local branch of the labor union, Defendants of this instance engaged in the industrial action at such branch, and the industrial action of  this instance by Defendants falls within such case as illustrated above. For the reasons stated above, we respectfully dissent to the majority opinion.