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Subject   September 2019 - Reasons for Disqualification of a Labor Union
Reasons for Disqualification of a Labor Union

I. Introduction
Workers are free to establish and join a labor union according to their basic rights guaranteed by the Constitution. However, the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union Act") stipulates that a “union” that allows the employer or persons acting on behalf of the employer to become members, that association shall be disqualified from being declared a labor union. The restriction that a labor union shall not allow membership for the employer also extends to representatives of the employer’s interests. The Trade Union Act restricts the scope of union membership in this way to i) protect the independence of the union by preventing someone directly representing the employer from joining it and controlling or intervening in its operations and ii) maintain the balance of bargaining power between labor and management by preventing the leakage of employer-related confidential information to the union. For this reason, if a worker who is prohibited from joining a labor union joins such a union, that union becomes disqualified as it can no longer serve to protect labor rights under the Trade Union Act.
Recently, more than 100 office workers in a public corporation formed a labor union and received a Certificate of Union Establishment from the Ministry of Employment and Labor (MOEL). However, the employer claimed that some of the union members included workers who are prohibited from joining a labor union under the Trade Union Act, and filed a complaint with the MOEL so as to disqualify the Office Workers’ Labor Union. Herein, I would like to examine whether these workers are prohibited from joining a labor union according to the Trade Union Act.

II. Criteria for Determining for Disqualification

1. Requirements for establishing a labor union
Article 2, Paragraph 4 of the Trade Union Act regulates, “The term “labor union” means an organization or associated organization of workers which is formed in a 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”, which is the “substantive requirement”. Article 10, paragraph 1 of the same Act stipulates that a Report on Establishment shall be submitted to the MOEL, which is the “formal requirement”. The Trade Union Act explains that in order for such a labor union to be legitimate, it must meet both substantive and formal requirements.
The substantive requirement is designed to assess whether a union has identity, independence, purpose and collective nature, in which case it is not regarded as a labor union under the Trade Union Act if an employer or other persons who always act in their employer’s interests are allowed to join the organization; in cases where most of the expenditures are provided for by the employer; where those who are not workers are allowed to join the organization, etc. The union's identity, independence, purpose and collective nature must be protected.
The formal requirement is for the labor union to report its establishment to and receive a Confirmation of Registration letter from the MOEL. A person who intends to establish a labor union shall prepare a report with the union constitution attached, which describe the union’s democratic and independent operations (Article 10 (1) of the Act). The MOEL shall return any report filed by a labor union to which any item in Article 12(3) apply (related to disqualification). The purpose of requiring such a report regarding the establishment of a labor union is to ensure it can survive as an independent, democratic organization through effective maintenance and management of the administrative organization.

2. Labor unions that remain unregistered due to their disqualification from establishment
Once the MOEL has received a Report on Establishment, it shall issue a Confirmation of Registration letter within three days , except when i) supplementation is required or ii) when it is necessary to reject the report on establishment. Since unions are established under a registration system rather than a permit system, once a Confirmation of Registration letter is issued, the union shall be considered to have been established as of the date of receipt of the Report on Establishment by the MOEL.
i) Supplementation is required if some problem is detected in the Report on Establishment. If a report does not have the union constitution attached or if the union constitution was not enacted by direct, secret and anonymous ballot, an order for supplementation shall be issued, to be fulfilled within 20 days.
ii) On the other hand, if the reasons for disqualification are related to the establishment of the union, the MOEL may reject the Report on Establishment. If it sends an order for correction, then correction shall be made by the applying union within 30 days. If it fails to do so within that period, it shall be regarded as an unregistered union.
Notwithstanding the principles of free registration for labor unions, the MOEL shall issue a Confirmation of Registration only to unions that meet certain requirements. Labor unions that are not established in accordance with the Trade Union Act cannot be protected by that Act because they are unregistered. There are three types of unregistered unions: ① No attempt at registration was made, ② The union’s Report on Establishment was rejected, or ③ A previously-registered union was disqualified.
If a labor union becomes unregistered, it does not have the following benefits: (1) Immunity from civil and criminal liability (Articles 3 and 4), ② Legal status (Article 6), ③ The right to apply for adjustment in labor disputes, or to apply to the Labor Relations Commission for remedy against unfair labor practices (Articles 7 (1) and 82), ④ The right to use a labor union name (Article 7), ⑤ Tax-exempt status (Article 8), ⑥ Authority to engage in collective bargaining and conclude collective agreements (Article 29) ⑦ The right to participate in the procedure for determining a bargaining representative union (Article 29-2), ⑧ The right to engage in collective action during disputes, which is normally afforded to labor unions (Article 37), ⑨ The right to designate workers for essential maintenance services (Article 42-6), ⑩ The right to be excluded from participating in a special mediation committee (Article 72), and ⑪ The right to apply for redress of unfair labor practices (Article 81).

III. Reviews of the Related Cases

The MOEL office will order corrective action if there is a reason to disqualify from registration an existing union or a union that has submitted a Report on Establishment. If the corrective action is not taken, then a Certificate of Registration will not be issued to the reporting union, or registration will be canceled for an already existing union. There are two main reasons for disqualification. First, the union allowed membership for an employer or those working directly for the employer’s interests. Second, the labor union’s constitution contains content that is undemocratic or violates its independence or the Trade Union Act.

1. In cases where a member is the employer or someone working directly for the employer’s interest

Relevant MOEL guidelines explain that those who act on behalf of the employer in matters relating to workers under Article 2 (2) of the Trade Union Act are (i) those who are engaged in determination of working conditions such as personnel, salary, welfare, labor management, etc.; ii) those who have been given a certain authority and responsibility by the employer over matters such as ordering, supervision, etc.; iii) and those in charge of management of personnel and labor such as recruitment, dismissal, and job trans

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