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Subject   May 2020 - Whether Union Activities by Union Officials is Company Work
Whether Union Activities by Union Officials is Company Work

I. Introduction
I would like to discuss an accident related to overwork, which will be deemed a work-related accident eligible for compensation depending on whether union activities by a union official are determined to be company work. In determining this, I will examine laws, guidelines, and precedents.

1. Summary of the Case
On January 24, 2018, a 49-year-old KTX train driver working for the Seoul High Speed Railway Office (hereinafter referred to as the "Employee") died from a heart attack around 11 pm while resting at home after returning from a workshop of labor union officials. In response, the surviving family filed an application for survivor's benefits with the Ministry of Employment and Labor, claiming that the Employee had overworked, but received a decision against payment. The Ministry of Employment and Labor determines the occurrence of overwork primarily based on working hours, and generally believes that workers overwork only when they work an average of 52 hours or more a week for 12 weeks. In this case, general KTX drivers work an average of 18 days every four weeks, depending on the train shift work, and 36 hours per week on average. The Employee worked 23 days over 4 weeks as of the date of the accident and worked an additional 5 days, averaging 46 hours per week for 4 weeks. The reason the Employee worked more was because KTX had sent more than 10 percent of their drivers to the newly-constructed Gyeonggang Line, built for the PyeongChang Olympics.
Of particular note is that while the Employee was directly engaged in driving KTX trains, he also held two positions in the Seoul High Speed Railway's labor union: as union vice-chairman and union manager of safety and health. In this case, the hours not recognized as providing work for the company are as follows: (i) the Employee participated in a two-day labor union officials’ workshop just before the accident, returning to work on the day of his death, after working 16 hours; (ii) The Employee performed his duties as the union's person responsible for adjusting shiftwork schedules (a monthly average of 8 hours required), and (iii) as the union safety manager, the Employee consulted with the company manager about an accident that had resulted in operational delays for a KTX train the previous day (1 hour). The Ministry of Employment and Labor did not recognize the union activities of this Employee as work provided to the company, so the case was rejected as an occupational accident due to a lack of working hours meeting the criteria for overwork.

2. Confirmed Facts
- The Employee was employed by the company on December 12, 1990 and had driven trains according to the shiftwork schedule of a high-speed railway driver until he died from a heart attack on January 24, 2018.
- The Seoul High-Speed Railway Office's labor union consists of 230 train drivers, and the Employee held the positions of union vice-chairman and safety and health manager.
- The Seoul High Speed Railway Office dispatched 27 train drivers to support operation of the recently-opened Gyeonggang Line high-speed railway, built for the PyeongChang Olympic Games in January 2018, which resulted in the Employee working an additional five days over a four-week period before his death.
- The Employee was responsible for preparing the shiftwork schedule for the union and confirmed and adjusted the schedule for 230 train drivers together with the management's operations manager on a monthly basis. There were many difficulties adjusting the schedule for February 2018 as it was a special transportation period for Lunar New Year.
- The labor union held a workshop for union officials at Daecheon Beach Condo from January 23-24, 2018. This workshop is held twice a year in accordance with the union’s operational rules, and the company's union manager was notified in advance in accordance with the collective agreement. Only union funding was used, with no financial support from the company.

II. Criteria to Determine Whether Union Activities Equal Overwork in the Event of Death

1. Criteria to Determine Overwork as Cause of Death

Death due to overwork is recognized by the Industrial Accident Compensation Insurance Act (IACI Act) as an occupational accident only if it is recognized that the work and disease are related to a significant causality. That is, the IACI Act recognizes that overwork can result in cerebrovascular (brain stroke) or heart disease (Article 34 (3) of the Act). For a death to be recognized as a work-related injury, there must be a considerable causal relationship between work and the incident. To prove this causal relationship, work must have been performed and contributed to the already existing disease if work has been performed, and there is potential for it to be recognized as the cause of the disease-related death . However, for work to be recognized as the main cause of the death when the death occurs while work is not being performed, the surviving family must prove a significant causal relationship between the death and the work. The burden of proof lies with the surviving family: it will not be recognized as a work-related death if they cannot prove the causal relationship.
In order to fall under the IACI Act, which lists work-related injuries, work-related diseases and accidents on commuting (Article 37(1)), there must be a substantial causal relationship between work and accident. When determining that an injury is work-related, the accident needs to (i) occur while the worker is performing work or an act in accordance with his/her employment contract; (ii) occur due to a defect in, or the careless management of, facilities, etc. provided by the employer while the worker is using these facilities, etc.; (iii) occur while the worker is participating in or preparing an event organized by the employer or an event following the directions of the employer; or (iv) occur during recess hours due to an act that can be seen as under the control of the employer. What should be noted here is that ‘an accident that happens while the worker is participating in or preparing an event organized by the employer or an event following the directions of the employer’ can also be recognized as a work-related accident. The standard for determining work-related diseases is virtually the same as determining work-related injuries.

2. Criteria for Determining Whether Union Activities are Work Provided to the Employer
Injuries and diseases caused by union activities are not specified in the IACI Act. However, where union activities of full-time or part-time union officials are recognized as work according to criteria are limited to activities outlined in the collective agreement or activities approved by the employer. In addition, the court considers injury or disease during labor union activities as work-related in accordance with a wider application of the current criteria for work-related injuries.
The court has recognized as work-related accidents involving full-time and part-time union officials that occurred while such officials were engaged in union activities that met the following criteria. First, it involved full-time or part-time union officials using the paid time-off system. Second, the labor union's work was closely related to the company's labor management work, which means that employers allowed union officials to take charge of the work on behalf of their original work. Third, accidents that occur outside of working hours were work-related union activities.
However, the following are union activities by full-time or part-time union officials that are not regarded as work: first, activities unrelated to the work of the company concerned by an umbrella union; second, illegal labor union activities; and third, confrontational labor-management relations over a period of time from the existence of a labor dispute to conclusion of a collective agreement. Fourth, activities outside of working hours that are not specifically related to the employers' labor management work.

(1) Union activities approved by the employer shall be those involving company labor management.
The fact that a full-time labor union official has been engaged in labor union activities without having to do the work originally outlined in the labor contract is due to a collective agreement or company consent. Labor union activities allow a full-time union official to engage in company labor management tasks, which can be seen as work provided to the company, instead of his original work. Thus, an illness or accident occurring to a full-time union official in the course of performing or its related labor union activities constitutes a work-related injury or disease.
(2) Paid-time union activities approved by the employer are company labor management duties.
The same shall be deemed to apply to accidents in the course of union officials, who are not full-time union officials, performing or engaging in ordinary activities approved by the company.
(3) Union activities shall be related to company labor management.
In the need to form smooth and stable labor-management relations, the full-time union official system allows union officials to take charge of labor union affairs instead of the work originally outlined in the labor contract, while still holding the status of employees. In order for a full-time union worker to be regarded as having a work-related accident under the IACI Act, the labor union activities performed by the full-time union official must be directly and specifically related to company labor management.
(4) Union activities during which accidents or illness are not recognized as work-related
The following union activities are not considered work: (i) activities related to umbrella unions above or allied to the relevant union and unrelated to the employer's business; ② illegal union activities, and ③ activities that occur during the dispute stage in a conflict with the employer.

III. Cases related to Union Activities and Recognition of Occupational Accidents

1. Cases where Accidents during Labor Union Activities are Recognized as Work-related
(1) Accidents occurring when a union official was engaged in paid-time union activities.
“A delegate of Kumho Tire’s labor union participated in a meeting paid for by the company. The delegate applied for industrial accident compensation after losing his footing and breaking his leg while going down the stairs to get the report, which the Supreme Court acknowledged as an occupational accident. The union delegate was paid to attend the meeting, and the company also provided the meeting place. Furthermore, the agenda of the meeting was as closely related to the company's labor management as day-to-day union activities.” This is a case where an injury occurring to a non-full-time union official was recognized as work-related as he or she was engaged in union activities during working hours with company approval.
(2) A full-time union official had a heart attack on his way home from a union workshop.
“Upon conclusion of a collective agreement bargaining, a full-time union official attended a union workshop conducted as part of follow-up actions. This union official had a heart attack on his way home after the workshop. The series of processes in attending the union workshop can be considered company work.” The heart attack of a paid full-time union official while returning home after a union workshop was regarded as a work-related accident.
(3) An accident occurred while a full-time union leader was removing a banner used in a union campaign.
Prior to collective bargaining, a union official stepped on some plywood while removing a banner used in a union campaign. The plywood fell about 6.5 meters to the floor, during which the official was injured. In order to promote union member solidarity ahead of collective bargaining, the campaign was held between 18:00 and 21:00 after working hours, and was officially permitted by the company in advance and permitted use of the indoor gymnasium facilities on company premises." Although the accident occurred outside working hours, it was recognized as a work-related injury because it happened while handling the incidental tasks for union activities recognized by the company.
(4) A union official had an accident during a workshop hosted by the industrial labor union.
"The industrial union, like a company labor union, is a single-organization labor union which workers in the same industry directly join and, in principle, have the right to collectively bargain, apply for mediation, and enter into a dispute at an individual company, and so matters in the industrial labor union cannot be treated as umbrella union activities." Labor union work in the industrial union cannot be viewed as activities related to a higher umbrella union or allied labor unions unrelated to the employer's business." In fact, the labor union activities of this industrial union were regarded as activities to improve working conditions at this company because the members had joined the industrial labor union directly.

2. Cases where Accidents during Labor Union Activities are not Recognized as Work-related
(1) A full-time union official was injured during a union sports competition held after working hours.
"A full-time union official was injured during a sports competition, held after working hours, to promote union membership ahead of collective wage bargaining." This is a case where an incident during individual union activities after working hours without the employer's supervision was not recognized as a work-related accident.
(2) An accident involving a full-time union official occurred during the dispute stage of a conflict between labor and management.
"By the time of the accident, the company and the labor union had failed to reach a compromise despite several rounds of wage negotiations, and the labor union was at odds with management and in a state of labor dispute after reporting the dispute to the relevant agencies according to the dispute mediation procedures." This accident was not recognized as work-related because it occurred in the middle of conflict between the labor union and the company.

(3) An accident occurred where a full-time union official was injured during a soccer game organized by an umbrella union.
“A full-time union official participated in some sports organized by the umbrella labor union as a representative of the union. The company did not give its approval to the union official to participate in the sports in this case, and did not pay any expenses." In this case, incidents during activities of the umbrella union are not recognized as industrial accidents occurring during the activities of an upper level umbrella union, as the activities were not related to the improvement of working conditions for the labor union.

IV. Opinions on this Case

In determining whether the death of the KTX driver was due to overwork and therefore an occupational accident, it is necessary to consider not only whether the incident occurred during working hours but also the special working conditions of the victim and the union activities he was involved in as a union official. The average working hours of the victim were only 46 hours per week over 4 weeks, but they were 27% more than the normal high-speed train drivers’ average of 36 hours per week over 4 weeks. There are also environmental factors such as the number of night or irregular shifts, and tension and noise in the driver’s cab arising from the high-speed train's single-driver and high-speed operations. In particular, the Employee had attended a two-day union officials’ workshop held according to a regular schedule on the day before the date of the incident. At the same time, on the day of the incident, the Employee had carried out the work of preparing the shiftwork schedule for union members at his home, and also protested on behalf of the union members to company staff about the delayed railway operations as the labor union's safety and health manager.
In judging whether this case is related to overwork, the Seoul Administrative Court should consider the union activities carried out by this union official as well as the Guidelines on Working Hours for Determining Overwork issued by the Ministry of Employment and Labor.


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