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[Article] Introduction of Key Proposed Amendments to the Trade Union and Labor Relations Adjustment Act

2021.01.14

This article focuses on some key contents of the latest proposed amendments (collectively, the “Proposed Amendment”) to the Trade Union and Labor Relations Adjustment Act (the “TULRAA”), which have been passed by the National Assembly on December 9, 2020, and will enter into force in six months following promulgation. 
 
1. Allowing dismissed workers to join enterprise union 
 
The Proposed Amendment has deleted an exception provided under Article 2 Clause 4 Item (d) which formed the basis of denying an employee status of a dismissed union member within a company-level trade union (the “Enterprise Union”). The Proposed Amendment would therefore allow the union members who are not currently working in the business or at the place of business (the “Non-Current Employees”) to participate in the trade union activities in the business or at the place of business to the extent of not interfering with the employer’s business operation, thereby allowing the Non-Current Employees to join the Enterprise Union.  
 
Therefore, under the Proposed Amendment, an employee who is dismissed may join the Enterprise Union without relations to whether the same employee claimed for relief on the grounds of unfair labor practices, whereas the existing law provides that a dismissed employee who has claimed for relief on the grounds of unfair labor practices to the labor relations commission is able  to join the Enterprise Union until the time of the National Labor Relations Commission’s decision.  Further, under the Proposed Amendment, in case where a dismissed employee has claimed for relief on unfair labor practice, such employee would be deemed as currently employed until the time of the National Labor Relations Commission’s decision. 
 
Furthermore, the Non-Current Employees could participate in the trade union activities within the business or at the place of business to the extent of not interfering with the efficient business operation of the employer, so the employer’s right to facilities management may be limited. Given that the “extent of not interfering with the efficient business operation of the employer” is a very abstract concept, in case a Non-Current Employee enters the place of business and engages in an industrial action, any measure intended to discipline such an action could constitute an unfair labor practice. In other words, it would become difficult to stop such a Non-Current Employee from entering the place of business.  
 
 
2. Qualification of delegates and officers of the Enterprise Union 
 
The Proposed Amendment provides for the qualification of the officers of the Enterprise Union to be determined by the bylaws of the trade union under Article 17(3) (newly added) of the TULRAA and for delegates and officers to be elected from the union members who are the current employees (as opposed to the Non-Current Employees) in the business or at the place of business under Article 23(1) of the TULRAA (as amended by the Proposed Amendment). Therefore, any dismissed employee who has claimed for relief on the ground of an unfair labor practice could become an officer of the Enterprise Union until the time of the National Labor Relations Commission’s decision. 
 
 
3. Deletion of ban on payment to full-time trade union officials and reorganization of time-off system 
 
The existing law generally prohibits the payment of wage to the full-time trade union officials, while it provides for an exception that the employee under the time-off system could engage, with pay within the maximum time-off limit, in the activities as provided under the TULRAA or other laws, such as collective bargaining with the employer, grievance settlement, industrial safety activities, and certain other activities, such as maintaining and managing the trade union for successful development of labor-management relations. 
 
The Proposed Amendment deletes the provision prohibiting the payment of wage to the full-time trade union officials, while it adds a provision providing that an employee may, in principle, engage with pay in the trade union activities under Article 24(1) of the TULRAA. At the same time, the Proposed Amendment prohibits the payment of wage to the employee under the time-off system for the hours exceeding the limited exemption for the time-off system under Article 24(2) and (4) of the TULRAA. This ban is further elaborated by specifying that any provisions allowing for such payment of wages under the collective agreement or employer’s consent for such wages would be invalid.  
 
The payment of wage to the full-time labor union officials would be prohibited under the existing law and constitutes an unlawful labor practice in principle. However, the Proposed Amendment would provide that the act of payment of wage to the employee under the time-off system for any hours exceeding the exception would constitute an unlawful labor practice.  
 
 
4. Bargaining in good faith and no discrimination in bargaining with separate units 
 
The Proposed Amendment provides that the employer shall bargain in good faith with all the trade unions requesting bargaining and shall not discriminate (Article 29-2(2) of the TULRAA, which is newly added). 
 
 
5. Supporting basis for unifying bargaining units at the place of business 
 
The existing law regulates the separation of the bargaining unit without addressing the unification of the bargaining unit. The Proposed Amendment would provide for the labor relations committee to be able to decide whether to separate the bargaining unit or to unify the separate bargaining units upon petition from the parties of the labor relations where it would be deemed necessary upon considering the working conditions at the single business or place of business (Article 29-3(2) of the TULRAA, as amended).  
 
 
6. Extension on term of validity of collective agreement  
 
The existing law stipulates that no collective agreement shall have a term of validity exceeding two years. The Proposed Amendment extends the maximum term to three years; provided that, the maximum term for the collective agreement entered into prior to the effective date of the Proposed Amendment shall remain two years (Article 32(1) of the TULRAA, as amended). Therefore, the collective agreement which would be entered into on or after the effective date would become valid for three years.  
 
 
7. Ban on industrial action excluding the employer’s occupation and interfering with business operation  
 
The Proposed Amendment stipulates a ban on industrial actions excluding the employer’s occupation and interfering with the business operation. This Proposed Amendment effectively adopts the existing legal principle based on a case precedent which prohibited occupancy in an entire and exclusive manner (see Supreme Court Decision 2007Do5204 dated December 28, 2007) into the statutory law.

8. Calculation method for voting on support for industrial action  
 
The Proposed Amendment clarifies that determining the number of the union members when voting on support for industrial action shall be limited to the union members who are the current employees (Article 41(1) of the TULRAA, as amended).

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