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Subject   May 2017 - Certified Public Labor Attorneys and their Power of Attorney at Appeals Commissions
Certified Public Labor Attorneys and their Power of Attorney at Appeals Commissions

I. Introduction

Since the Certified Public Labor Attorney (hereinafter referred to as “labor attorney”) Act was implemented in 1985, 4,994 labor attorneys have obtained qualification as of December 2016 (3,867 persons passed the labor attorney qualification exams and 1,127 persons obtained this qualification automatically through their Labor Ministry experience). According to the 2016 Employment and Labor White Paper, 1,816 labor attorneys were registered with the Ministry of Employment and Labor and were practicing labor law as of December 2015. This new labor attorney system was introduced to promote the development of a healthy economy through the support of labor management in the workplace and the restoration of workers’ rights through the efforts of qualified professionals in the personnel and labor fields.
One of the major functions of a labor attorney is to represent workers or employers at the Labor Relations Commission (hereinafter referred to as “labor commission) and to perform the duties of a labor attorney in cases of unfair dismissal or unfair labor practices. The Appeals Commissions for teachers and public servants permits lawyers to work only as their attorneys, even though the Appeals Commissions are operated under the administrative appeals system. There are many problems with this current system, so I would like to explain why labor attorneys should have power of attorney at Appeals Commissions.

II. Why a Labor Attorney needs to work as a legal agent at Appeals Commissions

1. Power of attorney for labor attorneys at the Labor Commission

If an employer dismisses, lays off, suspends or transfers a worker, reduces his or her wages, or takes other punitive action without justifiable cause, the worker may apply to the Labor Relations Commission for remedy. Any labor union whose rights have been infringed by unfair labor practices may also do so (Article 28 of the LSA (Labor Standards Act), Article 28 of the Union Act). As labor disputes are dynamic, continuous, and collective, administrative agencies or courts cannot be expected to always handle them fairly, promptly, and reasonably, due to the inflexibility of bureaucracy and the lack of experience of some agencies. The Labor Relations Commission is an independent administrative agency that has the authority and the ability to resolve labor disputes fairly, promptly, and in a way that is professionally appropriate to the situation at hand.
Most labor cases, such as unfair dismissal and unfair labor practices, are resolved through the Labor Commission. In 2015, 14,229 labor cases were settled at 13 local Labor Commissions and the National Labor Commission. Also, of 1,388 cases handled at the National Labor Commission in 2015, 415 went on to the appeals stage at the Administrative Court, showing a 30% ratio for court appeals at the National Labor Commission and a 3% ratio for court appeals for local Labor Commissions. Most labor cases at local Labor Commissions are settled through representation by a labor attorney. In particular, employees who were dismissed and whose average monthly salaries were less than KRW 2 million could receive their total legal procedures free of charge, from government-appointed labor attorneys at the Labor Commission.

[Status of Labor Cases Handled by Labor Commissions in 2015]
                                                                         (Unit: Case)
Division        Cases Filed         Case Details         On-going Cases
                Total        Judgment        Settled or Withdrawn        
                        Subtotal        Accepted        Rejected        Dismissed                 
Total        14,229        12,488        4,428        1,590        1998        841        8,060        1,741
Unfair Labor Practices        1,276        1,024        645        116        482        47        379        252
Unfair Dismissal etc.        12,571        11,130        3,562        1,329        1,465        769        7,568        1,441
Other        382        334        221        145        51        25        113        48

2. Appeals Commissions
Individuals able to apply for remedy with the Labor Relations Commission are those working for a company with five or more employees. Provided, that government employees working for state or local governments, and teachers, are excluded. Those government employees and teachers to whom Korean labor laws do not apply can submit applications for remedy through an Appeals Commission. The State Administration has an Appeals Commission for public servants and the Teachers’ Appeals Commission for teachers, while local administrations have an Appeals Commission for local public servants.
Teachers have rights of education, right to a guarantee of status, and the right to freedom of speech, while at the same time they often have the duties to educate and conduct research and maintain their professionalism as teachers, but are banned from political activities. Of particular interest, the system related to the guarantee of status is the Teachers’ Appeals Commission, which deals with teachers’ disciplinary dispositions (such as expulsions, dismissals, suspensions from office, wage reductions, and written warnings), and disadvantageous dispositions (such as forced leaves, dismissals, and removals from position), and this system can involve a kind of administrative trial.
Accordingly, civilian workers for the government, and employees engaged in a private school’s administrative work, as well as fixed-term employees, (Article 32 of the Public Educational Officials Act, Article 54-4) do not fall within the scope of the Teachers’ Appeals Commission. Instead, they may apply for remedy with the Labor Relations Commission.

3. Necessity for a labor attorney to have power of attorney at Appeals Commissions
The appeal procedure at Appeals Commissions are handled through the court system, but follows the administrative appeals procedures. An attorney can become a labor attorney for labor cases according to Article 2 of the Certified Public Labor Attorneys Act (hereinafter referred to as “CPLA Act”). Accordingly, the labor attorney is considered a person stipulated in Article 18(1) of the Administrative Appeals Act (Appointment of Agents) : “4. Persons entitled to represent the appellant in an appeal under other Acts.” Because of this Article, labor attorneys have represented clients at Administrative Appeals Commissions as well as various Labor Commissions. The Appeals Commissions’ mother law is the Administrative Appeals Act. Despite being the mother law and the fact that it provides labor attorneys with full authorization to represent labor cases, the subsidiary law applying to Appeals Commissions has granted power of attorney to lawyers only. This subsidiary law violates the mother law, which allows a labor attorney to legally represent clients in labor cases, because the subsidiary law excludes the labor attorney from Appeals Commissions. Furthermore, this subsidiary law has imposed a disadvantage on legal consumers such as civil servants and teachers, who cannot choose labor attorneys as their legal agents (and benefit from their lower fees), even though labor attorneys are better qualified, with more knowledge and experience in this area.
Currently, labor attorneys have mostly represented public employees in labor cases except for Appeals Commissions, and are the remedy for employment cases, collective labor cases, and industrial accident cases.

[Scope of the Labor Attorney’s Legal Agency for Public Employees]
O: included X: excluded
Division        Individual Employment Relations         Collective Labor Relations        Industrial Accident Compensation
Organization        Public servants        Appeals Commission: X        O        O
                Appeals to the Human Rights Commission: O                
        Civilian employees        O        O        O
Schools        Public schools        Public servants        Appeals Commission: X        O        O
                        Appeal to the Human Rights Commission: O                
                Civilian employees        O        O        O
        Private schools        Teachers        Appeals Commission: X        O        X
                        Appeals to the Human Rights Commission: O                
                Staff         O        O        X
Public institutes        O        O        O

In view of the above explanation and table, it is natural that a labor attorney who is a specialized professional in labor law should act as an authorized legal agent for labor cases at Appeals Commissions.

III. Labor Attorney’s Legislated Scope of Duties

1. Duties of a Labor Attorney according to 31 labor laws.
(1) Acting as a representative or an agent for notifications, applications, reports, statements, requests (including filing complaints, requests for examination and requests for trial), and remedy of rights etc., made to the authorities under labor-related Acts and subordinate statutes;
(2) Preparing and confirming all necessary documents under labor-related Acts and subordinate statutes;
(3) Consultation and guidance regarding labor-related Acts and subordinate statutes and labor management laws;
(4) Labor management diagnoses for businesses or workplaces to which the Labor Standards Act applies; and
(5) Private mediation or arbitration prescribed in Article 52 of the Labor Union and Labor Relations Adjustment Act.

2. Concrete summary of the labor attorney’s legal scope of duties
(1) Labor Office-related tasks:
1) Composing, revising and reporting the Rules of Employment and formation of a Labor-Management Council; 2) Acting as a representative or an agent for filing petitions, complaints, or claims regarding unpaid wages or severance pay; and 3) Processing requests involved in insolvency payments (obtaining proof of a company’s bankruptcy, submitting applications, etc.) according to the Wage Claim Guarantee Act.
(2) Employee Welfare Corporation-related tasks:
1) Acting as a representative or an agent in applications for medical care benefits, suspension benefits, disability benefits, survivors’ benefits or funeral expenses; 2) Acting as an agent in the appeal after applications for any of the above benefits have been rejected; and 3) Managing the implementation of Employment Insurance and Industrial Accident Compensation Insurance affairs, and adjusting premium calculations (estimated and final insurance premiums).
(3) Industrial safety and accident compensation-related tasks:
1) Acting as an agent for the re-examination of industrial accidents; and 2) Providing advice regarding industrial accidents and occupational safety and health issues.
(4) In Labor Relations Commission-related cases:
1) Acting as an agent for the application of remedies for dismissal, discipline, transfer, demotion, etc. of individual employees and 2) Acting as an agent for remedy applications regarding unfair labor practices on behalf of a labor union.
(5) Individual employment-related tasks:
1) Consultation on justification of dismissal; 2) Consultation on wages; 3) Consultation on working hours, holidays, recesses, etc.; 4) Consultation on employment contracts, Rules of Employment, etc.
(6) Collective industrial relations-related tasks:
1) Consultation on labor disputes and labor relations; 2) Consultation regarding collective bargaining and collective agreements; 3) Consultation on unfair labor practices; and 4) Private mediation and arbitration for the adjustment of labor disputes.
(7) Act on the Promotion of Worker Participation and Cooperation; Act on the Protection, etc., of Dispatched Workers; Employment Insurance Act; and Act on Equal Employment and Support for Work-Family Reconciliation:
1) Consultation on operation of labor-management councils; 2) Consultation on working conditions, treatment, and operation of dispatched workers; 3) Consultation on labor disputes related to gender equality; and 4) Consultation on unemployment allowance, vocational skill development, and employment security.
(8) The Administrative Appeals Commission:
A labor attorney acts as an agent for administrative appeals against administrative measures issued by the Labor Office and other related agencies.
(9) The Industrial Accident Compensation Insurance Appeals Committee:
A labor attorney acts as an agent for the Industrial Accident Compensation Insurance Appeals Committee upon rejection by the Employee Welfare Corporation of an examination application.

3. Public Defense Labor Attorney
The Labor attorney’s public defender system was introduced to protect the rights and interests of vulnerable social groups. The public defender works as an agent for low wage-earners and provides a labor-management diagnosis for vulnerable small businesses or workplaces receiving a minimum subsidy from the Ministry of Employment and Labor.
(1) Low-income workers (with a monthly average wage of KRW 2 million or less) who have received unfair disciplinary action can use a public defense labor attorney to seek remedy at the Labor Relations Commission.
(2) In cases where workers did not receive wages due to the bankruptcy of a small company with fewer than 10 workers, they may be able to receive an insolvency payment through the assistance of the public defense labor attorney.

VI. Conclusion

For the past 32 years, since the Certified Public Labor Attorney Act was implemented in 1985, labor attorneys have contributed to labor-management peace and a reliable improvement of labor-management relations, for which they have received a high degree of social recognition. In particular, as Appeals Commissions are a part of administrative appeals and are implemented in this procedure, it is logical that a labor attorney serve as a legal agent there as he/she is a labor case professional. Accordingly, Article 18 of the Administrative Appeals Act (Appointment of Agents) has provided just such authorization, making it necessary for a labor attorney to legally represent public servants and teachers at their Appeals Commissions, as they are subsidiary to Administrative Appeals Commissions. After all, this widened legal authorization will support public servants and teachers in their legal needs, allowing them to have more choices for legal protection or in the process for remedy.



[List]

142 (1/8)
No Subject
142 October 2017 - Annual Paid Leave and Foreign Workers  
141 September 2017 - Foreign Workers: the EPS and Human Rights  
140 August 2017 - Minimum Wage and the Employer’s Obligations  
139 July 2017 - Foreign Workers: Labor Rights & Limitations  
138 June 2017 - Checklist of Standard Working Conditions  
May 2017 - Certified Public Labor Attorneys and their Power of Attorney at Appeals Commissions  
136 April 2017 - A System for Employment of Foreign Worker: Domestic Workers  
135 March 2017 - Employment Systems and Employment Relations for Overseas Koreans  
134 February 2017 - Foreign Workers & the Social Insurances  
133 January 2017 - Equal Treatment: Criteria for Judgment & Related Cases  
132 December 2016 - Human Rights of Foreign Workers and Labor Law Applications  
131 November 2016 - The Kim Young-Ran Act and Joint Penal Provisions Related to the Employer’s Legal Liabilities  
130 October 2016 - Employment Relations by VISA Type  
129 September 2016 - Application of Korean Labor Laws at Foreign Embassies & Limits on their Korean Employees  
128 August 2016 - The Principle of Complete Payment of Wages & Exceptions  
127 July 2016 - Changes of the Employment Permit System for Migrant Workers  
126 June 2016 - Comparison between the Labor Relations Commission and the Teachers’ Appeals Commission  
125 May 2016 - Business Transfers & Employment Relations  
124 April 2016 - Can an accident on the way to the office before a business trip be considered work-related?  
123 March 2016 - Requirements for Unfavorable Changes to Employee Working Conditions to be Considered Reasonable according to Social Acceptability  

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