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,
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