|Labor Union Act and Criteria for Determining Whether a Unified Bargaining Channel Can Be Separated
Recently, there have been two separate cases in which a state-run company in charge of post office deliveries and logistics applied to have its bargaining unit divided: one being accepted and the other rejected. The Labor Relations Commission (LRC or the Labor Commission) approved the application from the Korea Delivery Workers' Union, taking into account the differences in outstanding working conditions between the labor unions of the current corporation and this KDW union, and employment patterns. However, it rejected the application from the office workers union at the same public corporation. The reason for this different response is that the Trade Union Act only recognizes exceptions, when deemed necessary, to the principle of unifying negotiation channels. In other words, any differences in working conditions or employment patterns were not significant enough to separate the bargaining unit between office workers and other workers, and no practice was in place for the employer to bargain separately. The Labor Commission determined that any separate needs of the office workers' union could be resolved through fulfillment of the obligation of the designated bargaining representative union to fairly represent the minority labor unions.
These two labor unions are unlikely to have much difficulty in determining the separation of bargaining units due to clear reasons for their employment patterns and working conditions, but in various cases, the Labor Commission uses its own discretion to determine the criteria for the separation of bargaining units which can be unpredictable. In this regard, I would like to examine in detail the objective criteria for determining the separation of bargaining units, and some judgments as examples.
II. Understanding the Separation of Bargaining Units
1. Significance of separating bargaining units
With the introduction of multiple unions in one business or workplace from July 1, 2011, the system for unifying collective bargaining channels was implemented to reduce the adverse effects of multiple unions. The single bargaining channel system is required to create a practical guarantee of collective bargaining rights - namely the implementation of proper working conditions on the principle of equal power in labor-management decision-making. Allowing two or more labor unions to negotiate individually with the employer at one workplace is expected to result in conflicts between labor unions and increase the employer’s bargaining costs. To this effect, current law requires negotiation be done by a designated representative union if there are two or more labor unions in an organization in one business or one workplace (Article 29-2 of the Trade Union Act). Nevertheless, if there are significant differences in working conditions, employment patterns, and negotiation practices in one business or workplace, separate bargaining units may resolve conflicts between labor unions and improve working conditions for workers. Where it is deemed necessary to separate the bargaining unit to this effect, this may be done with the approval of the Labor Commission (Article 29-3 of the Act).
Separating bargaining units can weaken the bargaining power of labor unions, as unity and numbers in collective bargaining help to protect the power advantage with the employer. Therefore, the Trade Union Act allows unions to unify their collective bargaining channels and only recognizes the decision to separate them in exceptional circumstances.
2. Procedure for separating the bargaining unit
(1) Applicants: A company or a labor union party to labor relations may unilaterally file for separation of bargaining units (Article 29-3 (2) of the Act). Labor unions that have not participated in the process of unifying bargaining channels may also apply, as may branches or unit unions under the umbrella of industrial unions (Article 14, Paragraph 1, 2 of the Enforcement Decree to the Act).
(2) At the time of application: (i) The labor union or employer may apply for a decision on the separation of bargaining units (Paragraph 1 of the above law) before the employer gives notice of the request and (ii) after the date on which the representative labor union is determined. Therefore, it is possible to apply for a separate bargaining unit decision at any time except for the period during which the negotiation channel unification process is carried out.
(3) Effect of application: The Labor Commission shall, upon receipt of an application for separation of bargaining units, notify all labor unions and the employer of the business concerned and require them to submit their opinions. The Labor Commission shall make a decision on separation within 30 days from the date of receipt of the application. Once an application for separation of bargaining units is made, the process of unifying the bargaining channel shall cease (paragraphs 1 through 5).
(4) Upon decision: If the Labor Commission decides to split the bargaining unit, the labor union may ask the employer for collective bargaining. In such a case, the employers required to engage in collective bargaining shall resume the process of unifying the bargaining channels for each separate bargaining unit from the beginning. However, if there is an existing collective agreement, collective bargaining may be requested from the date three months before expiration of that collective agreement (paragraph 3).
(5) Procedures and standards for appeal: The provisions of Article 29-3 and 69 of the Act apply to the procedures for non-compliance with the Labor Commission's decision to separate the bargaining units. Thus, an objection may be raised with the National Labor Relations Commission within 10 days if it is felt that the Labor Commission's decision is illegal or it is overstepping its authority. The Supreme Court has stated, “The arbitration award may be appealed only if the procedure is illegal or its contents are illegal due to violation of the Labor Standards Act, or if the arbitration is beyond the scope of the dispute between the parties without justifiable reason, on the grounds that it is illegal or overstepped. Appeals made simply because the arbitration is unfavorable to either party will not be accepted."
3. Requirements for separation of bargaining units
The court or LRC determines the need for separate bargaining units based on four criteria: (i) there shall be differences in working conditions, (ii) there shall be differences in form of employment, and (iii) there shall be differences in the negotiating practice, and (iv) these together shall require separation of the bargaining unit. The Labor Commission decides after a comprehensive look at the higher value of benefit between 'maintenance of procedures for unifying negotiation channels' and 'separation of bargaining units'.
(1) Significant differences in working conditions: Differences in working conditions need to be those where it would be considered reasonable for collective bargaining to be conducted separately, not as a difference in the individual nature of the workers. Thus, differences in personal attributes (such as proficiency, experience, educational background, years of service, etc.) do not constitute objective differences.
(2) Employment types: There should be a difference in employment patterns objectively, beyond simply whether a worker is temporary, contract, or part-time, to include things such as whether a specific job is designed for part-time workers after retirement, so it is desirable to elect a separate representative union to conduct collective bargaining independently.
(3) Negotiating practices: Negotiating practices are not considered based on negotiations in formally separated units, but on the basis of the need to negotiate in separate units. In other words, the separation of bargaining units is not always justified by having collective bargaining practices that are different from the majority labor union of one company due to reasons such as occupation, merger or business establishment.
(4) Necessity to separate bargaining units: The Labor Commission shall elect a separate negotiation representative union to determine whether the essential basis of labor-management relations is different to the extent that each union needs to engage in independent collective bargaining. The Labor Commission shall make a decision in consideration of the actual status of labor-management relations in the business or workplace, such as the distribution and number of members, negotiation requirements, the details and nature of labor relations, and the degree of independence in personnel management.
III. Decisions on Separation of Bargaining Units – Cases of Acceptance
1. Entrusted and directly operated workers
One company has a general labor union and a postal delivery service union. The company's general labor union engages in collective bargaining with the bargaining representative union. The new postal delivery union applied for separation of bargaining units on the grounds that the working conditions and employment types were different because they were postal delivery service providers with qualifications as individual business operators, not full-time employees of the company.
The Labor Commission acknowledged that it was necessary to separate the bargaining representative union into separate bargaining units for effective negotiations between labor and management, as there were wide differences in working conditions and types of employment for general employees and entrusted postal delivery service workers, and uniformity in working conditions was not reasonably achievable.
2. Separation of bargaining units for broadcasting personnel
Broadcasters have the right to call for collective bargaining because they are workers under the Trade Union Act. Therefore, the Labor Standards Act recognizes the validity of their application for separation of bargaining units due to their different working conditions.
3. Non-fixed-term contract workers and full-time employees
Fifty-nine non-fixed-term workers in a certain corporation were responsible for office assistance, parking, driving, facilities and counseling, while 137 persons were full-time employees in general, technical or functional positions. The corporation recognized a labor union composed of full-time workers as the representative labor union and engaged in negotiations with it. Non-fixed-term workers were not permitted into the full-time union.
The Supreme Court has separate management regulations for wage levels and employment types are divided into non-fixed-term and regular jobs. Negotiating practices also do not apply to regular workers' collective agreements. Therefore, the Supreme Court recognizes the separation of bargaining units as negative to stable labor-management relations as it can cause more conflict between labor and management.
4. Different workplaces
In one business, several divisions were divided into separate factories, there were wide differences in working conditions, and individual bargaining was carried out according to practice. The labor union in a relatively superior position applied for the bargaining unit to be separated.
The Labor Commission agreed to separate, recognizing the interests of the labor unions involved, as each business unit had different working conditions and negotiated individually.
IV. Decision-making on Separation of Bargaining Units – Cases of Rejection
1. Office workers and field workers in one workplace
A union of office workers was recently established in a company in charge of post office logistics. Previously, three labor unions (about 1,300 union members in total) were formed around the site and had been negotiating through the bargaining representative union. After the office workers' union reported its establishment with 110 general office workers, the office workers applied for a separation of bargaining units on the grounds of a wide gap in working conditions.
However, the Labor Commission judged that there were no significant differences in working conditions or employment patterns between office workers and other workers. It rejected the request for separation in accordance with the principle of unifying negotiating channels, in the interest of unified labor conditions and stability in labor-management relations.
2. Street cleaners and other public service workers
Street cleaners in Jeju City applied for separation of bargaining unit. However, there is not much difference in working conditions between street cleaners and non-fixed-term workers. In terms of employment status, retirement age is guaranteed as they are considered non-fixed-term contract workers, similar to civil servants. However, there was a negotiation practice in which individual negotiations had been held even before the single negotiation channel was taken. In response, the Labor Commission rejected the request for separation of bargaining units in accordance with the principle to maintain a single bargaining channel for multiple labor unions.
3. Non-fixed-term contract workers and fixed-term workers in the restaurant industry, and full-time workers
A newly hired non-fixed-term contract worker and a fixed-term worker in charge of restaurant affairs, both working for the same restaurant, applied for separation of bargaining units into one for non-fixed-term workers and one for regular workers. In application of remarkable working conditions, the Labor Commission has found that there is no difference in working conditions as regular and non-fixed-term contract workers have the same salary system, as do part-time workers. The types of employment given were that nutritionists and chefs with the necessary qualifications were considered full time, while the rest of the staff were hired on contract. There has been no practice of separate negotiations. Therefore, it was deemed reasonable to keep the bargaining channel unified to protect the labor-management relations that would not be so stable if separate negotiations were to occur.
The Labor Commission, as a mediator of disputes between labor and management, allows separation of bargaining units only as an exception to the principle that negotiation channels should be unified. These exceptions include wide differences in working conditions, employment patterns, and negotiation practices between labor unions with the same company, in which unified bargaining channels are more disadvantageous to the labor unions. When it comes to collective bargaining, labor unions must have a large number of members to ensure sufficient negotiating power that will lead to advantageous results. Therefore, the Labor Commission must review objective facts when deciding whether to allow separation of bargaining units, and permit such separation only when it meets the required criteria.