National Labour Law Profile: Republic of Korea (South Korea)
Contributed by Liliane Jung.
General legal framework
The first constitution
of the Republic of Korea was adopted on 17 July 1948 and established a
presidential system as the basic form of government. Since then, the constitution has been
amended nine times. The last amendment was on 29 October 1987 and became effective on
25 February 1988. With this amendment, democratic reforms were implemented by
establishing a direct presidential election as well as a Constitutional
Court. The 1987
Constitution declares the Republic of Korea a democratic republic (Art. 1 para.1), of which
the President is head of the State. It guarantees basic rights to its citizens (Chapter II), while
foreigners' rights are assured by international law and treaties (Art. 6 para. 2). South Korea
joined the ILO in December 1991 and in December 1996 also the OECD. It is further one of
the founding members of APEC in 1989.
The legislative power is vested in the National Assembly, the functioning of which is governed by the
National Assembly Act (completely revised 15 June 1988). Its competence contains, inter alia,
the enactment of laws as well as the passage of amendments to the constitution and
consent to the conclusion and ratification of treaties.
The National Assembly is composed of no less than 200 (currently 273) members elected by
universal, equal, direct and secret ballot (Art. 41 paras. 1 and 2 of the Constitution). Each
term of office is four years and during this period the National Assembly's members receive
the protection of immunity and indemnity (Arts. 44 and 45 of the Constitution). For further
information on the election of the National Assembly's members and their duties as well as on
the legislative power, refer to the web site of the National Assembly of the Republic of Korea
The executive power rests to a large extent with the President who is elected by universal,
equal, direct and secret ballot and may serve only one five year term of office (Arts. 70 and 67
para.1). With the consent of the National Assembly, the President appoints the Prime Minister
for assistance. The Prime Minister directs the Executive Ministries, the heads of which are
appointed by the President as well.
Important policies as numbered in Art. 89 of the Constitution (e.g. basic plans of state affairs,
the declaration of war and the draft amendments to the Constitution) are deliberated by the
State Council, of which the President is chairman. The State Council is further composed of
the Prime Minister and other members numbering no more than 30 and no less than 15. The
latter are recommended by the Prime Minister and appointed by the President.
The judicial power is vested to the Supreme Court as the highest court of the state as well as
to courts at specified levels - namely the High Courts and the District Courts including
specialised Family Courts and Administrative Courts (Art. 101 paras. 1 and 2). It is
constitutionally demanded that all judges rule independently according to their conscience and
in conformity with law (Art. 103). The Supreme Court's judges are appointed by the
President with the consent of the National Assembly (Art. 104). Regular judges are appointed by the Chief Judge of the Supreme Court with the consent of
the Supreme Court Judges' Conference. The Chief Judge of the Supreme Court may serve
only one 6 year term of office, whereas other judges may be reappointed after their term of
office, which is 6 years for the Supreme Court and 10 years for lower courts.
In order to force all powers to uphold the Constitution, the 1987 Constitution established a
Constitutional Court, which exists apart from the regular judicial structure. The Constitutional
Court began operation in September 1988. Its jurisdiction as described in Art. 111 of the
Constitution includes inter alia decisions on the Constitutionality of laws, on competence
disputes and on constitutional complaints filed by individuals. The Constitutional Court's
organization and operation is supplementary ruled by the Constitutional Court Act adopted on
05 August 1988 and last amended on 13 December 1997. The Constitutional Court is
composed of 9 adjudicators, who are appointed by the President on condition that they are
qualified to be court judges. Their term of office is 6 years and reappointment is
constitutionally permitted.
^ top of the page
Labour Law
The Constitution grants fundamental labour standards, such as:
- the right and also the obligation to work (Art. 32 paras. 1 and 2);
- the workers' right to freedom of association, collective bargaining and collective
action (Art. 33), with public officials and employees of important defence
industries being excepted unless provided for by law;
- special protection for working children and working women including prevention of
unjustified discrimination against women (Art. 32 paras. 4 and 5).
The Constitution also stipulates that the legislature make laws governing working conditions
so as to guarantee human dignity (Art. 32 para. 3).
Within this constitutional mandate, labour law is determined by labour legislation,
supplementary administrative decrees, collective agreements and work rules.
Labour legislation includes a number of acts, among which the following- all adopted on 13
March 1997- may be considered as key acts:
- Labour Standards Act (LSA) last amended on 20 February 1998,
- Trade Union and Labour Relations Adjustment Act (TULRAA) last amended on 20
February 1998,
- Labour Relations Commission Act (LRCA), and
- Act Concerning the Promotion of Worker Participation and Cooperation (ACPWPC).
The LSA sets minimum standards for working conditions and includes regulations on
enforcement measures. According to the LSA's aim and structural principle, working
conditions are to be understood as all kind of contractual matters, particularly wages and
working hours. The LSA applies to all employees except for domestic workers; seafarers are only covered by the LSA where they are not covered
by the Seafarers' Act. Even though some articles may concern
every workplace with at least one employee, the LSA entirely covers workplaces where
ordinarily 5 or more workers are employed who are not relatives living together (Art. 10
paras. 1 and 2 of the LSA. Note that the number of workers is inaccurate in the English
translation of para. 1).
The TULRAA regulates the formation of trade unions as well as collective bargaining and is
supplemented by the LRCA, which aims to secure stable labour relations through the Labour
Relations Commission, an independent administrative body under the Ministry of Labour.
The workplace based Labour-Management Council, which is composed of workers'
and employer's representatives, is subject to the ACPWPC .
Legislation is to an increasing degree subject to jurisprudence, which may, in some cases, be
influenced by administrative interpretation issued by the Ministry of Labour or the Ministry of
Justice.
Collective agreements are also legally binding, if they do not fall short of limits set by
legislation (Art. 33 para. 1 TULRAA and Arts. 2 of the LSA). In practice, they are mostly
concluded by the enterprise trade union and the employer and are thus enterprise based. De
jure and de facto, collective bargaining and freedom of association is still a developing issue.
Within any workplace with more than 10 employees, working conditions such as those
enumerated in Article 96 of the LSA must be stipulated by work rules that must not run
counter to legislation and collective agreements (Art. 99 of the LSA).
As a matter of fact, an applying collective agreement regularly needs to be elaborated by the
work rules, which are drawn up by the employer in consultation with the trade union or, as an
alternative, with the Labour-Management Council (Arts. 96 and 97 of the LSA and Art. 19
para. 1 No. 11 of the ACPWPC). A report to the Ministry of Labour is also necessary. Any
provision of the labour contract in conflict with the work rules is null and void (Art. 100 of the
LSA). Labour contracts need not be drawn up in writing, even though a clear statement to the
employee after the conclusion is legally demanded as far as contractual matters like
remuneration and working hours are concerned (Art. 24 of the LSA). If the employee
successfully claims that his actual labour conditions are unlawful, he/she is entitled to claim damages or
to terminate the contract (Art. 26 of the LSA).
Labour laws in the last amended version are entirely published by the Ministry of Labour
(MOL) under Laws and Regulations (English version)
^ top of the page Contract of employment
Permanent and fixed term contract of employment
The traditional system of lifetime employment, which was similar to that of Japan, has
nearly vanished due to the deteriorating economic situation since 1997 and the LSA amendment
in 1998, which recognized - under further conditions - an urgent managerial need as a justifying
reason for dismissal.
According to the LSA, the term of a labour contract shall not exceed one year, except in cases
where there is no term fixed or a term is fixed as necessary for the completion of a certain
project (Art. 23). In case of any violation by the employer, he/she is punished by a fine not
exceeding five million Won (Art. 115 of the LSA). It is, however, necessary that the worker
report the violation to the Ministry of Labour or its subordinate offices (Art. 107 para. 1 of
the LSA).
Equal treatment of permanent and fixed term contractors is not legally assured. Even in the
LSA, fixed term contractors are treated less favourable in some regards, e.g. with reference to
an advance notice of dismissal (Art. 35 of the LSA).
Probation
Any labour contract may specify a probation period at the beginning of the employment
relationship. During the first three months of this term, the employee may be dismissed without
advance notice (Art. 35 no. 5 of the LSA and Art. 12 of the Enforcement Decree).
Precedent also sets lower standards for justifiable reasons, as far as dismissals of probationers
are concerned.
Special contracts of employment
Temporary work (dispatched work) was legalized by the Act Relating to Protection, etc. for
Dispatched Workers, which was adopted 20 February 1998 and entered into force the first of
July the same year. In this employment situation, the worker has a labour contract with a
temporary work agency but works under the direction of a client company, which has
concluded a dispatching contract with the temporary work agency. The agency's operation
needs a frequently renewed permit from the Ministry of Labour.
Temporary work is legally permitted for jobs requiring expertise, special skills or
experience selected by Presidential Decree (Art. 5 para. 1). In such circumstances, the
dispatch period is limited to one year but can be extended to two years. After this time, the
worker is entitled to be regarded as employed in the client company (Art. 6 para. 3).
However, temporary workers may be requested also for other occasional needs, in particular
to replace regular employees who are absent due to maternity or illness. Such cases require a
prior consultation of the enterprise trade union (Art. 5 para. 3), and the worker may not be
dispatched to perform certain work like construction work, seafarer's activities or dangerous
activities (Art. 5 para. 2 no. 2). Furthermore, the dispatch period is more restricted: In cases of
child birth and illness, the period is limited to the required term and in case of other occasional
needs, to three months with the possibility of extension of another three months (Art. 6 para. 2).
For any dispatch work, the dispatching agency as well as the client company are regarded as
employers with differing obligations towards the temporary worker, against whom
discrimination is prohibited (Arts. 34 para.1, 35 and 21).
Part-time workers are specifically protected by legislation since the last amendment to the
LSA. They are defined as "employees whose contractual working hours per week are shorter
than those of full-time workers engaged in the same kind of job at the pertinent workplace"
(Art. 21 LSA). Those part-time workers "whose contractual working hours per week are less
than fifteen hours on the average of four weeks", are for the most part excluded (Art. 25
para. 3 LSA and Art. 9 para. 2 Enforcement Decree). In 1999, 55.2% of the total of part-time workers were female (Labour Force Statistics, 1997-1999, OECD, Paris).
The working conditions of part-time workers are specified by Presidential Decrees within the
limits of Art. 25 paras. 1 and 2 LSA. Wages need to be calculated on a hourly basis, and
holidays as well as paid leave must be granted in an equivalent manner to those of full-time
employees. Part-timers may work overtime but the limits must be stated in the labour contract.
Apart from these standards set by legislation, the employer may establish work rules, which
concern only part-time workers and thus may be less favourable than those of full-timers.
Vocational training is provided for throughout a worker's entire career and thus is not
stipulated as a special labour contract (Art. 3 para. 1 of the Vocational Training Promotion
Act). It receives, however, special protection in the LSA, which mandates that vocational
trainees only perform work from which they acquire technical skills (Art. 77). Training
methods and contract terms of long term training are even fixed by Presidential Decree (Art.
78 para. 1 of the LSA).
Suspension
Suspension is not legally defined, but the LSA provides that a worker may be suspended for disciplinary reasons (Arts. 30 para. 1). This, however, requires justifiable reasons, which are to
be defined by collective agreements and work rules. Also, the business may be suspended for
reasons attributable to the employer (Art. 45 para. 1 of the LSA). In this case, the employee in
principle is paid 70 % of the average remuneration. In addition, a generally accepted legal
theory understands the mutual duties under the labour contract as being suspended during
industrial actions. Thus, the worker has no duty to work and the employer is released from
paying wages, while the contract itself remains in force.
Termination of employment
According to the Civil Code, a labour contract may be terminated at either party's initiative for
any reason with an advance notice of one month. A termination at the employer's initiative,
however, is restricted by labour acts, the LSA in particular. This restriction applies to labour
contracts of an unlimited period as well as to those fixed term contracts that have been
unlawfully extended.
In principle, an employee may be dismissed with and without advance notice. In case of an
advance notice dismissal, the notice has to be given at least 30 days beforehand or equivalent
wages must be paid instead (Art. 32 para.1 of the LSA). This protection does not apply to the
following kind of workers (Art. 35 of the LSA):
- workers within the first three months of their probation period,
- workers who have been employed for a fixed period not exceeding two months,
- seasonal workers who have been employed for a fixed period not exceeding six
months,
- monthly paid workers who have been employed for less than six months, and
- workers being employed on a daily basis for less than three consecutive months.
Any dismissal with advance notice must be based on justifiable reasons as defined by collective
agreements and work rules. The fact of joining a trade union or a legal collective action,
however, must never be a justifiable reason (Art. 81 No. 1 and 5 of the TULRAA). Also, the
dismissal of a woman must not be based on her gender (Art.8 para. 1 of the Equal
Employment Act). Justifiable reasons may be classified into personal reasons, behavioural
reasons and management reasons, of which the latter are further restricted in Art. 31 LSA. The
managerial need should be urgent, and every effort to avoid dismissals must have been made.
Additionally, the selection of workers to be dismissed has to be fair and rational, and the
enterprise trade union must be informed 60 days in advance. When recruiting within two years
after dismissal for managerial reasons, the employer should re-employ the workers dismissed.
In any case, the dismissal of the following workers is prohibited according to Art. 30 para. 2
of the LSA:
- workers being on maternity leave
- workers being medically treated due to an occupational injury or disease (including a
period of the following 30 days).
As an exception, any worker may be dismissed without advance notice, which is specified in
Art. 32 para. 1 of the LSA. It requires either considerable business troubles which have been
caused by the worker or cases of natural disaster, calamity or equivalents that make business
impossible to continue.
Against any unlawful dismissal, the employee may file a complaint with the District Court,
which is however expensive and time consuming. To be reinstated, the employee thus may
prefer requesting an unjust dismissal order from the District Labour Committee. He/She may
also file a criminal complaint with the District Labour Office. For further details please refer to
Termination of Employment Digest.
^ top of the page Hours of work
Pursuant to Art. 49 of the LSA, the statutory working time is not more than 44 hours per week and 8 hours
per day excluding rest periods. A rest period of half an hour must be granted for every 4
working hours and of one hour for every 8 working hours (Art. 53 of the LSA). One day per
week must be a holiday (Art. 54 of the LSA). Night work- 10 pm to 6 am- is forbidden for
female workers and minors (Art. 68 of the LSA).
The limits of the average working time may be relaxed with and without a written agreement
of the employer and the enterprise trade union or the workers' representative. Without such
agreement, the employer may ask the worker to work up to 48 hours in one week, provided
that the average working hours in two weeks do not exceed 44 hours (Art. 50 para. 1 of the
LSA). Having succeeded the required agreement the employer may request work of up to 56
hours in a specific week or 12 hours in a particular day, if the average weekly working hours
do not exceed 44 hours within a period of one month (Art. 50 para. 2 of the LSA).
Apart from the normal or flexible working time, the employee may also work overtime of up
to 12 hours a week (Art. 52 paras. 1 and 2 of the LSA). This, however, requires the
agreement of the employer and the enterprise trade union as well as the payment of overtime compensation, at least 50% over the normal wage. In special businesses as stipulated in Art. 58 of the
LSA e.g. transportation business, movie production or medical business, the employee may
work overtime even in excess of 12 hours per week. In any case, it is prohibited by legislation
that female workers do overtime work exceeding two hours per day, 6 hours per week and
150 hours per year (Art. 69 of the LSA).
The legislative limitation of working hours does not apply to employees of the following
fields: agricultural and forestry work, cattle-breeding, sericulture and fishery business as well
as surveillance or intermittent work (Art. 61 of the LSA).
^ top of the page Paid leave
Apart from those employees mentioned under Hours of work , each employee may be
entitled to monthly leave and annual leave, both with pay (Arts. 57 and 59 of the LSA).
Monthly leave is one day and can be taken, only if the employee has been working all days
during the preceding month (Art. 27 of the Enforcement Decree). It can be accumulated up to
one year and then be taken at once. Annual leave is basically 10 or 8 working days,
dependently of wether the employee has been working the entire year without absence or at
least 90 % of the working days during the year. From the second year of consecutive
employment, one day of annual leave is added each consecutive year of service. The number of
guaranteed annual leave days, however, does not exceed 20 days, but normal wages may be
paid for the number of days in excess of 20 days. Annual leave must be taken within the
working year, unless the employee is prevented for reasons lying with the
employer. In case of un taken monthly or annual leave, an additional ordinary wage for the
relevant days must be paid.
^ top of the page Maternity protection and maternity leave
Maternity is protected in the LSA, which also stipulates the employer's punishment in case of
any violation. The pregnant employee must not work overtime and, upon request, she must be
assigned to light and easy work (Art. 72 para. 2). This protection is supplemented by the
requirement that night work by women is only accompanied by the worker's consent and the approval of the Ministry of Labor. In addition, maternity leave with pay is guaranteed (Art. 72 para. 1). The employee is obliged
to take 30 days after childbirth, while she is legally entitled to ask for up to 60 days of
maternity leave within the period before and after childbirth. During this period, she is
protected against dismissal (Art. 30 para. 2).
^ top of the page Other leave entitlements
Sick leave is not provided for by legislation. Only a medical treatment because of an
occupational injury or disease allows the employee to be absent from work (Art. 82 of the
LSA). In this case, 60 % of the average wage is paid. Sick leave may, however, be granted by
collective agreements or work rules.
Child care leave is governed by the Equal Employment Act adopted on 4 December 1987 and
last amended 8 February 1999. It is a not paid leave and can be taken by either the mother or
the father in order to care for the child who is less than one year (Art. 11 para. 1). The leave
cannot be extended beyond the child's first birthday.
Female workers are also entitled to menstruation leave (Art. 71 of the LSA), and men are
authorized to leave for mandatory military service.
^ top of the page Minimum age and protection of young workers
The constitutional provision protecting young workers has been implemented
in the following way: The employment of children under the age of 15 is generally banned
(Art. 62 para. 1 LSA). Individual cases may be exempted by permission of the Ministry of
Labour, if compulsory education is not impeded (Art. 62 para. 2 of the LSA). Children under
age 18 must not be employed at night or in dangerous or hazardous workplaces (Arts. 63 and
68 of the LSA). Further, the working hours are slightly reduced to 7 hours per day and 42 per
week. However, they may be extended by mutual agreement of the employer and the minor by
one hour per day and six hours per week (Art. 67 of the LSA).
^ top of the page Equality
Pursuant to Art. 5 of the LSA, the employer must not discriminate against workers by
nationality, religion, social status or gender. Gender equality is further addressed by the Equal
Employment Act (EEA), which elaborates the constitutional demand for gender equality in
terms of employment, wages and working conditions. It applies inter alia the principle of
equal wages for work of equal value in the same business (Art. 6-2 para. 1). However, it is fair to say that inequalities persist in Korean society. In 1999, female workers of the non-agricultural sector earned 63% of the male
workers' income and in the manufacturing sector only 55% of the male workers'
earnings (based on figures collected by the Ministry of Labour). The EEA also prohibits any
provision of the employment contract that stipulates marriage, pregnancy or child-delivery as a
reason for retirement and thus revises a common practice in the Korean labour market (Art. 8
para. 2). In addition, sexual harassment is prohibited with responsibility residing with the employer (Art. 8-2 of the EEA). In order to safeguard gender equality, punishment of a
fine of 10 million Won or imprisonment is imposed for any violation of the EEA.
^ top of the page Pay issues
Wages are defined as "any payment to a worker from an employer as remuneration for work,
regardless of the designation by which such payment is called" (Art. 18 of the LSA). Wages
thus may not only be comprised of the normal remuneration but also of allowances and
bonuses. The individual wage level is usually determined by enterprise based collective
agreements. In November 1999, 89% of all workplaces had concluded wage negotiations
(based on figures collected by the Ministry of Labour). The enterprise based wage
determination tends to create differences among the various firms, depending on the firm's
size or other economic factors. However, a certain minimum level of wages is guaranteed in
the Minimum Wage Act adopted on 31 December 1986. It is annually determined by the
Ministry of Labour, which takes the cost of living, the wages of kindred workers and labour
productivity into consideration and makes a division into different business categories (Art. 4
paras. 1 and 2 and Art. 8 para. 1). Upon permission of the Ministry of Labour, the following
workers may be exempted from the Minimum Wage Act (Art. 7):
- workers on probation,
- workers with a very limited working capacity due to mental or physical handicap, and
- workers who receive basic training.
Wage claims are guaranteed on the basis of the Wage Claim Guarantee Act, which was adopted on 20 February 1998. In cases such as bankruptcy of the employer, the retired employee may claim wages of the final three months or retirement allowance of the final three years (Art. 6 I, II of the WCGA and Art. 37 II LSA). All payment are made out of a wage claims guarantee fund established and operated by the Ministry of Labor. The fund is mainly financed by employers with contributions not exceeding 0.2% of the wages paid to employees. However, employers are liable to reimburse money paid from the fund to their employees (Art. 7 of the WCGA).
^ top of the page Trade union and employers' association regulation
Trade unions
The worker's right to independent associations and to collective bargaining is constitutionally
guaranteed. Public officials and employees of important defence industries are, however,
excepted unless provided for by law (Art. 33 of the Constitution). One of such laws is the Act
on the Establishment and Operation, etc. of Trade Union for Teachers. It entered into force on
01 July 1999 and entitles teachers to organize and to bargain collectively. Teachers are thus
recently represented by two appropriate trade unions, the Korean Teachers' and Education
Workers' Union and the Korean Union of Teaching and Educational Workers. Other public
officials are from 01 January 1999 allowed to organize a workplace association, if they are of
grade 6 or higher and do not belong to special services (Act concerning Establishment,
Operation, etc. of the Workplace Association of Public Officials). In fact, only 338,000 public
servants out of a total of 930,000 are thus recently eligible to join workplace associations,
which are, however, not considered a trade union in terms of the TULRAA. (The numbers
were submitted by the Government to the ILO Committee of Experts in the year 2000).
Workplace associations consequently do not have the right to collectively bargain but are
entitled to be consulted with respect to some working conditions.
Pursuant to the TULRAA, workers are free to establish a trade union, for which at least two
employees are required who file a report with the relevant government office (Arts. 5 and 10). If
the report is accepted, the union is established. A trade union is considered "an organization
or associated organization of workers, which is formed in voluntary and collective manner
upon the workers' initiative for the purpose of maintaining and improving working conditions
or improving the economic and social status of workers" (Art. 2 No. 4 of the TULRAA).
Most trade unions are de facto enterprise based and each enterprise may legally only have one
trade union. The principle of multiple unionism at enterprise level will be recognized from the
year 2002. The enterprise based trade unions are affiliated with federations at industry level,
which join federations on a national level. The two most important national federations are the
Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions
(KCTU). The latter was officially registered in November 1999, while the FKTU had been for
many years the only authorized national organization. Trade union pluralism at industrial and
national levels is legally permitted since May 1998.
Workers are free to join trade unions, which applies to dismissed workers only as long as they
are still engaged in legal disputes because of the dismissal (Arts.5 and 2 No. 4d of the
TULRAA). In cases where a trade union is representing more than 2/3 of workers employed
in the same business, the employee even may be forced to join the trade union, if such is
provided in the enterprise based collective agreement (Art. 81 No. 2 of the TULRAA). Union
members are guaranteed equal rights and duties to participate in all of the trade union's affairs,
provided that the union dues are regularly paid. They also elect union officials who may be
engaged as full-time officials (Art. 23 para. 1 and Art. 24 para. 1 of the TULRAA). As from
January 2002, full-time union officials will be banned from being paid in part or in full by their
employer (Art. 24 para. 2).
Employers' association
Four large organizations represent the enterprises' interest: the Korea Chamber of Commerce
and Industry (KCCI), the Korea Federation of Small Business (KFSB), the Federation of
Korean Industries (FKI) and the Korea Employers' Federation (KEF). The latter association is
in charge of the employers' interest on labour issues and is a merger of 16 industrial
employers' organizations. Collective bargaining, however, takes place mostly at the enterprise
level, while employers' associations may provide support.
Unfair labour practice
In principle, employment must be independent from the fact of joining a particular or no
trade union. The discrimination against and the dismissal of trade union members is thus
considered an unfair labour practice, as stipulated in Art. 81 of the TULRAA. Furthermore, the employer
is prohibited from dominating or interfering with the formation or operation of a trade
union. The refusal to conclude collective agreements as well as any wage payment to full-time
union officials is likewise banned.
Any affected worker or trade union may file a complaint with the Labour Relations
Commission within three months from the commitment of a possible unfair labour practice
(Art. 82 paras. 1 and 2 of the TULRAA). The Labour Relations Commission is a tripartite
body, which exists as a local commission and as a central commission. The Local Labour
Relations Commission investigates the case, by hearing witnesses if necessary, and then issues
a decision. The defeated party may apply for review at the National Labour Relations
Commission within the following 10 days. This application does not immediately suspend the
former decision (Art. 86 of the TULRAA). The ruling of the National Labour Relations
Commission is final, unless the party concerned files an administrative litigation (Art. 85 para.2
of the TULRAA). Only in this case does the Civil Court take the final decision.
^ top of the page Collective bargaining and agreements
The workers' right to collectively bargain is constitutionally assured (Art. 33). The bargaining
process may be determined by the previously applicable collective agreement. Pursuant to the
TULRAA, the trade union's representatives are authorized to bargain with employers or
employers' associations (Art. 29 para. 1 ). Wage negotiations take place traditionally every
year in spring, like in Japan. In all cases of collective bargaining, no unjustified
refusal or delay is permitted, and it applies the principle of bargaining in good faith and
sincerity (Art. 30 paras. 1 and 2 of the TULRAA). In practice, the system of collective
bargaining still tends to be unstable, since trade unionists continue to remain subject to arrest
and detention (ILO Committee of Experts, Report No. 320, Case No. 1856, year 2000).
Collective agreements must be in writing and are, in practice, mostly enterprise based.
They are binding on the members of the relevant trade union but may apply also to
those nonunion members who are employed in the same kind of job (Arts. 35 and 36 of the
TULRAA). In case of an enterprise based collective agreement, this requires trade union
membership of more than 50% of the workers employed in the enterprise. As far as a
collective agreement concluded at the branch level are concerned, at least two-thirds of the
workers within the same area must be trade union members for the collective agreement
to be declared as general binding by the administrative authority in consultation with the
Labour Relations Commission.
The collective agreement's term of validity must never be more than two years (Art. 32 para. 1
of the TULRAA). After the date of expiry, the agreement may, however, remain effective for
a certain period. This period is three months if collective bargaining is engaged in to come up
with a new collective agreement. It can be extended, if such is provided in the agreement.
There is no statutory regulation as to the subject matter of collective agreements. However,
standards for all kinds of working conditions may be set, as long as the matter does not
concern only one employee. Such standards must not be contradicted by work rules and contracts
of employment; this is predominantly understood meaning that the agreement sets the minimum standard (Art. 33 para. 1 of the TULRAA). Collective agreements also establish the duties and
rights of the contractual parties, such as the peace keeping obligation over the period of
application and the duty to regulate the bargaining process.
^ top of the page
Workers representation in the enterprise
Within the enterprise, workers are represented by the enterprise based trade union, if such
exists, and the Labour-Management Council. The latter body consists of an equal number of
representatives of employees and the employer and is governed by the Act Concerning the
Promotion of Workers Participation and Cooperation (ACPWPC). Its power varies depending
on the issue concerned. In quite a number of matters, as stipulated in Art. 19, the Labour-Management Council needs to be consulted, e.g. occupational safety and health measures and
rules of employment. In other cases, a report to the council is required. Only a few items like
welfare facilities or training plans need to be agreed by the council (Art. 20).
The Labour-Management Council must be established in any workplace that has 30 or more
employees and shall be composed of more than three but fewer than 10 members (Art. 4
para.1 and Art. 6 para. 1). The employees' representatives are appointed by the enterprise
based trade union, if the majority of the workers are union members. In all other cases, they are
directly elected by the employees. The members serve for three years, and reappointment or
reelection is possible. The compensation for their services to the council is prohibited, but the
time spent must be regarded as working time (Art. 9 paras. 1 and 3). The Labour-Management
Council meets at least each three months.
The representatives of both, employees and the employer, should work together in good faith
(Art. 23). In cases where the council cannot come to a legally necessary resolution, the issue
may be referred to an internal arbitration panel or, as an alternative, to the Labour Relations
Commission in the function of an arbitrator (Art. 24 para. 1). The method of and the
procedure for arbitration are regulated in by-laws, which have to be established by the council
(Art. 17 of the ACPWPC and Art. 5 para. 1 No. 5 of the Enforcement Decree).
^ top of the page Strikes and lock outs
Strikes
The workers' right to collective action is constitutionally guaranteed (Art. 33 para. 1). Some workers within the defence industry are, however, excepted - production of defence goods, electricity and water (Art. 41 para. 2 of the TULRAA). No worker can be detained for violation of law, if he/she participates in legal industrial action. The legitimacy of industrial action requires the following conditions:
- Adjustment procedures must be completed unsuccessfully (Art. 45 para. 2 of the TULRAA). A distinction must be made between mediation and arbitration, which are both conducted by the Labour Relations Commission (see below). Labour disputes can also be settled by the industrial parties themselves on a private basis, but this has in fact not been done often.
- Any industrial action must be led by a registered trade union, of which the majority of members has voted to take industrial action (Art. 37 para. 2 and Art. 41 para. 1 of the TULRAA). The vote is to be by direct, secret and unsigned ballot.
- The action must be reported in advance to the administrative authority and the Labour Relations Commission (Art. 17 of the Enforcement Decree).
- The intended result must be the improvement of either working conditions or the workers' economic status (Art. 2 no. 4 of the TULRAA).
Violence and destruction as well as the occupation of production facilities are prohibited (Art. 42 para. 1 of the TULRAA). The maintenance and the operation of security facilities of a workplace must also not be stopped, closed or interrupted (Art. 42 para. 2 of the TULRAA).
The most common form of industrial action is the strike. A distinction must be made between walk-out strikes, where workers leave the workplace, and sit-down strikes, the effect of which is the occupation of the workplace.
Lock outs
In order to protect industrial facilities, the employer may conduct a lock out but only in
response to an ongoing strike (Art. 46 para.1 of the TULRAA). The lock out needs to be
reported in advance to the administrative authority and the Labour Relations Commission
(Art. 46 para. 2 of the TULRAA). During industrial action, the employer is prohibited from
hiring further non-striking workers or subcontracting work. He/she is, however, released from
paying wages (Art. 44 of the TULRAA).
^ top of the page Dispute settlement
Mediation and arbitration are adjustment procedures. Mediation can be requested by either
party and must be completed within 15 days in public services, in general businesses even
within 10 days (Arts. 53 and 54 para. 1 of the TULRAA). It is conducted by either a tripartite
committee or a single mediator authorized by the Labour Relations Commission. The
mediation proposal needs to be accepted by both parties, for it to have the same effect as a
collective agreement (Art. 61 paras. 1 and 2 of the TULRAA).
An arbitration procedure must be agreed on by both parties or may be requested by only one
if the possibility is established in the previously applicable collective agreement (Art. 62 of the TULRAA).
It is conducted by an arbitration committee, which is composed of three members representing
the public. After arbitration has started, industrial action must not be conducted for 15 days,
and the arbitration award of the committee has the same effect as a collective agreement (Arts.
63 and 70 para. 2 of the TULRAA).
Individual labour dispute settlement
Individual labour disputes are settled by the Civil Courts. Civil litigation in South Korea is,
however, very time consuming and costly. It is thus often of interest to make a complaint with
another body. In case of a possibly unjustified dismissal, the employee legally can file a
criminal complaint with the District Labour Office or a civil complaint with the Labour
Relations Commission (see under Termination of employment). Other claims, which are
related to the contract of employment, can only be made before the Civil Court.
Civil litigation is ruled by the Code of Civil Procedure, which was enacted in 1960 and
extensively revised in 1990. The District Court is generally the court of the first instance, and
it is usually a single judge who presides over the trial. A body of three judges is required only
in exceptional cases such as where the sum in dispute exceeds 50,000,000 Won. At the end of
the trial, a written judgement usually stating the reasons for the decision is made. Only in small
claims actions not exceeding 20,000,000 Won, is the procedure simplified, and the written
judgement does not need to state reasons.
Appellate jurisdiction is exercised by a collegiate panel of three judges within the District
Court if a judgement made by a single judge is appealed. The appeal against a judgement of
panel, on the other hand, is lodged with the High Court. In the second instance, the case is
again investigated. The court of last resort is the Supreme Court, where only questions of law
are heard.
^ top of the page Official gazette
It is named Kwanbo and
may be accessed in Korean.
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