Establishing a Labor Union at K Gugak Center and Applying for Bargaining Unit Separation
Bongsoo Jung, Korean labor attorney at KangNam Labor Law Firm
I. Introduction
In early 2023, musicians from the K Gugak Center visited the Kangnam Labor Law Firm and expressed their desire to form a labor union to improve their working conditions. They stated that the labor union to which the musicians belonged was mostly composed of public employees, thus failing to represent the musicians' interests. The K Gugak Center has branches in Seoul, Busan, Namwon, and Jindo and is dedicated to preserving and promoting traditional Korean music. With the help of this labor law office, the musicians established the Gugak Troupe Labor Union (hereinafter the “Troupe Union”) and received a certificate of establishment from the Seoul Regional Labor Office on August 23, 2023.
The Troupe Union requested collective bargaining with the Gugak Center, but the center refused, citing the existence of a single bargaining channel procedure with the Ministry of Culture, Sports, and Tourism (MCST), where the joint bargaining union was recognized as the representative labor union. Without bargaining rights, the labor union cannot conclude an independent collective agreement, and a labor union without a collective agreement cannot properly protect its rights. Disappointed, the Troupe Union asked this labor law firm to assist it with efforts to separate itself from this single bargaining channel. It then applied to the Labor Commission for such, who rejected its request, reasoning that recognizing bargaining rights for the Troupe Union would lead to many of the labor unions under the MCST individually demanding collective bargaining, resulting in greater confusion. The Troupe Union then appealed to the Central Labor Commission. Fortunately for the Troupe, the Central Labor Commission recognized its situation as an exception to the single bargaining channel principle and overturned the lower commission’s decision, going on to approve separation of the bargaining unit. This article takes a look at the decision of the two labor commissions and examines the related legal standards that form the basis for the final decision.
II. Judgment of the Labor Commissions on the Application for Bargaining Unit Separation from the Gugak Troupe Labor Union
1. Facts
(1) Significant differences in working conditions
① Public employees in the union to which the musicians at the K Gugak Center belong engage in a variety of tasks, including facility management, cleaning, and security, whereas the members from the Gugak Center itself are solely involved in artistic activities like practices and performances. ② Permanent employees are subject to the "Regulations on the Management of Public Employees" and the "Public Employee Employment Rules," whereas Gugak Center employees are only subject to the "Troupe Operation Regulations." ③ The standard working hours for public employees are 40 hours per week, whereas the standard working hours for Gugak Center employees are 30 hours per week. Permanent employees' wages consist of basic salary, welfare benefits, and holiday bonuses, whereas for Gugak Center employees, they consist of basic annual salary, performance bonuses, and special allowances for performance appearances. ④ Permanent employees' retirement benefits are governed by the Act on the Guarantee of Employees’ Retirement Benefits, whereas Gugak Center employees follow the Public Officials Pension Act.
(2) Differences in employment type
Permanent employees are hired through resume, document and interview screenings and sign indefinite-term employment contracts from the outset. In contrast, Gugak Center employees are hired through resume and document screening, practical tests, and interviews, initially signing a two-year fixed-term employment contract, after which their status as regular employees is confirmed through an ability assessment.
(3) Bargaining practices
Since 2018, the employer and the joint bargaining representative have concluded collective agreements and wage agreements that apply uniformly to all affiliated institutions, followed by supplementary agreements for each institution, making it difficult to consider the formation of separate individual bargaining practices.
2. Reasons for the Regional Labor Commission’s Rejection of the Application for Bargaining Unit Separation
The Regional Labor Commission rejected the Troupe Union's request for separation of its bargaining unit for the following reasons.
(1) Although the union claimed that the joint bargaining representative had not properly reflected the interests and demands of Gugak Center members during the collective bargaining process, the joint bargaining representative is obligated under the Trade Union and Labor Relations Adjustment Act to fairly represent the interests of all union members. Therefore, the applying labor union is guaranteed the opportunity to assert the rights of its members during the collective bargaining process.
(2) Since 2018, collective bargaining between the selected representative labor union and the MCST has become an established principle within the MCST. Therefore, separating the bargaining unit immediately after establishment of the Gugak Troupe Labor Union seems premature.
(3) As the K Gugak Center is an affiliated institution of the MCST, and the regulations applicable to the Gugak Troupe, including performance operation and salary regulations, require approval from the Minister of the MCST, separating the bargaining unit and proceeding with bargaining would require separate approval from said Minister.
3. Reasons the Central Labor Commission Approved the Application for Bargaining Unit Separation
There are significant differences in working conditions and employment type between Gugak Center employees and public employees. Maintaining a single bargaining unit in this case is inconsistent with the purpose of the single bargaining channel system, which aims to establish a stable bargaining system through the unified formation of working conditions. Therefore, the need to separate the bargaining unit for Gugak Center employees is recognized, with the specific reasons as follows.
(1) The public employee-centered labor unions forming the joint bargaining representative since 2018 are all affiliated with the Korean Confederation of Trade Unions (KCTU). The Gugak Troupe Labor Union, which is not affiliated with any higher-level organization, cannot become the representative labor union through an alliance with them, nor become the representative labor union based on the number of its members.
(2) While the Trade Union and Labor Relations Adjustment Act sets the single bargaining channel system as a principle and imposes the duty of fair representation on the representative labor union, it is challenging to expect the demands of the Gugak Troupe Labor Union to be properly reflected given the significant differences in working conditions and employment type between Gugak Center employees and the predominantly public employee-based unions. These substantial differences in working conditions and employment type cannot be resolved solely by the duty of fair representation imposed on the representative labor union. Therefore, the need for separation of the bargaining unit as provided by the Trade Union and Labor Relations Adjustment Act is recognized in this case.
(3) Considering that, when Gugak Center employees were part of the K Gugak Center branch of the existing union, separate supplementary agreements regarding wages and other matters applicable to Gugak Center employees were concluded, it is unlikely that separating the bargaining unit will lead to increased bargaining costs, conflicts between unions, or difficulties in labor management. Even if the regulations applicable to Gugak Center employees require approval from the Minister of the MCST, this does not constitute a valid reason to reject the application for separation of the bargaining unit.
4. Lessons Learned
In cases where multiple labor unions exist within a single business or workplace, regardless of organizational form, it is generally preferred to reduce bargaining costs and pursue administrative convenience through the single bargaining channel system. However, given the entirely different regulations, working conditions, and employment types applicable to current Gugak Center employees and those applicable to public employees, it is unrealistic to expect the public employee-centered joint bargaining union to represent the interests of Gugak Center employees. This is why the Central Labor Commission's approval of the application for bargaining unit separation by the Gugak Troupe Labor Union can be considered a valid decision.
III. Criteria for Recognizing the Need for Separation of the Bargaining Unit
1. Legal Provisions on Bargaining Forms
(1) Single Bargaining Channel Procedure (Article 29-2 of the Trade Union and Labor Relations Adjustment Act): In cases where there are two or more labor unions established or joined by employees within a single business or workplace, regardless of organizational form, the labor unions must designate a representative labor union for bargaining.
(2) Determination of Bargaining Units (Article 29-3): The unit for which the representative labor union is determined under Article 29-2 is a single business or workplace. Notwithstanding paragraph 1, if there are significant differences in working conditions, employment types, bargaining practices, etc., within a single business or workplace, and it is deemed necessary to separate or integrate bargaining units, the Labor Commission may, upon application by either or both parties, decide to separate or integrate bargaining units.
2. Positions of the Supreme Court and the Constitutional Court on Bargaining Unit Separation
(1) Supreme Court: The Trade Union and Labor Relations Adjustment Act sets the single bargaining channel system as a principle while recognizing the separation of bargaining units in certain cases. The term "cases where it is deemed necessary to separate bargaining units" under Article 29-3, paragraph 2, refers to exceptional situations where maintaining a single bargaining unit in a single business or workplace leads to results that contradict the purpose of the single bargaining channel system, which aims to establish a stable bargaining system through the unified formation of working conditions.
(2) Constitutional Court: Moreover, the Trade Union and Labor Relations Adjustment Act allows for voluntary bargaining without requiring a single bargaining channel if there is employer consent (Article 29-2, paragraph 1, proviso). If there are significant differences in working conditions, etc., between labor unions, making it necessary to separate bargaining units, the Labor Commission may decide to separate the bargaining units upon application, ensuring that the various occupational interests are adequately represented in the determination of labor conditions. To protect minority labor unions that do not attain the status of representative labor unions, the Trade Union and Labor Relations Adjustment Act imposes the duty of fair representation on both the employer and the representative labor union, prohibiting discrimination against labor unions or their members participating in the single bargaining channel procedure (Article 29-4, paragraph 1). These provisions are designed to mitigate the issues arising from strictly enforcing the single bargaining channel system and to minimize the infringement of collective bargaining rights of labor unions.
IV. Conclusion
Without bargaining rights, a labor union cannot effectively conclude collective agreements to improve its working conditions. If collective agreements cannot be concluded, establishment of the labor union becomes pointless. While the Trade Union and Labor Relations Adjustment Act guarantees fair opportunities for all labor unions to unite, it also requires the selection of a representative labor union for collective bargaining, usually encompassing multiple labor unions. As a way of handling exceptions, the bargaining unit separation system seeks to recognize the collective bargaining rights of minority labor unions composed of members with entirely different characteristics, allowing them to negotiate independently. The approval of the Labor Commission is a prerequisite for recognizing such separation, ensuring consistency in the process. As seen in the case discussed, the bargaining unit separation granted to the Gugak Troupe Labor Union is a protective measure for minority labor unions composed of workers with significantly different working conditions or employment types. Such requests should only be granted when the need for exceptions is clear.
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