Yeo on 'Labor Union Act Amendment' Push... FKI Says "Justifies Violence and Destruction... Potential Unconstitutionality"

Professor Cha Jin-ah's 'Report on the Constitutionality of the Trade Union Act Amendment'
"Union Immunity for Violent Destructive Acts... Undermines the Foundation of the Rule of Law"

The Korean Confederation of Trade Unions held a rally near the National Assembly building in Yeouido, Seoul, on the 6th, urging the revision of Articles 2 and 3 of the Trade Union Act and the guarantee of the Basic Labor Law. / Photo by Moon Honam munonam@

[Asia Economy Reporter Moon Chaeseok] The opposition party has proposed amendments to Articles 2 and 3 of the Labor Union and Labor Relations Adjustment Act (Labor Union Act) that expand the scope of lawful collective actions. In response, the business community has strongly opposed, stating that including provisions exempting violent and destructive acts from liability violates the Constitution.

On the 21st, the Federation of Korean Industries (FKI) commissioned Professor Cha Jin-ah of Korea University Law School to prepare a report on the constitutionality of the proposed amendments to the Labor Union Act. The report argued that various recently proposed amendments to the Labor Union Act in the National Assembly have a high potential for unconstitutionality as they infringe on employers' property rights, equality rights, and restrict freedom of occupation.

Earlier, on the 10th, Go Min-jung, a Supreme Council member of the Democratic Party of Korea, introduced the amendments to Articles 2 and 3 of the Labor Union Act, which include expanding the scope of lawful collective actions. Subsequently, on the 15th, Lee Jae-myung, leader of the Democratic Party, supported the proposal during a meeting with the Korean Confederation of Trade Unions (KCTU), suggesting renaming Article 3 related to collective actions as the "Right to Guarantee Lawful Strikes" or the "Law to Prevent Abuse of Injunctions and Provisional Seizures."

"Infringement on Equality, Freedom, and Property Rights... Potential Unconstitutionality"

The proposed amendments to the Labor Union Act that limit employers' claims for damages in cases of unlawful collective actions are analyzed to significantly infringe on constitutional fundamental rights such as 'equality rights,' 'freedom of occupation (business activities),' and 'property rights,' raising concerns about unconstitutionality.

First, granting the 'privilege of exemption from liability for unlawful acts' exclusively to labor unions is pointed out as violating the constitutional principle of equality. According to the report, the amendments provide preferential treatment to workers without reasonable grounds, with no consideration for the disadvantages faced by employers. Contrary to the law's intent to protect the vulnerable, the preferential treatment is limited solely to labor unions, which could raise equality issues with civic groups or other groups needing protection.

There is also a possibility of infringing on employers' freedom of occupation. If restrictions on damage claims lead to frequent strikes, it could directly affect the normal business operations of employers.

Furthermore, provisions limiting claims for damages and injunctions related to unlawful collective actions, as well as exemptions for guarantors, restrict employers' rights to recover damages. Limiting the right to claim damages to protect property rights could infringe on property rights. The report explains, "Introducing caps on damage amounts and allowing reduction claims directly restrict employers from receiving full compensation, constituting a direct limitation on property rights."

"Exemption for Union Violence and Destructive Acts... Concerns Over Undermining Rule of Law"

The report expresses concern that including limits on union liability and exemptions for individual union members even in cases of violence and destructive acts could undermine the foundation of the rule of law. It warns that legally recognizing collective actions involving violence and destruction could increase confrontational and uncompromising union activities, spreading illegality and violence across various sectors of society. This, in turn, would reduce the legislative legitimacy of the proposed amendments.

According to the report, the amendments allow claims for damages only in cases of violence and destructive acts. When collective actions are planned by the union, claims against individuals are prohibited. Even when claiming damages against the union for violence and destruction, claims are barred if they threaten the union's existence.

The report states, "Legalizing unlawful acts, that is, legislating unjust content, should be deemed unconstitutional," adding, "The foundation of the rule of law is to prevent illegality and violence, and legitimizing violence itself can undermine the very basis of the rule of law."

"Expansion of Employer Definition and Scope of Labor Disputes, Content Ambiguous"

[Image source=Yonhap News]

Regarding the expansion of the employer concept and the scope of labor disputes, the report analyzes that "the content is ambiguous and inconsistent with the current labor law system, which could cause significant confusion." It points out that "legalizing illegality" has no legislative precedent in major countries and that careful consideration is needed as the amendments could produce results contrary to their legislative purpose.

The current labor law system is premised on parties directly involved in employment contracts. Recognizing subcontracted workers who are 'not in an employment contract relationship' as subjects of negotiation inevitably conflicts with the existing legal framework.

For example, if a primary contractor deals with numerous subcontractors, questions arise about how to unify negotiation channels, whether the primary contractor has an obligation to negotiate with all subcontractors, and whether negotiating working conditions for subcontracted workers violates the Dispatch Act. These issues conflict with the existing legal framework and could cause practical confusion.

"No Cases of 'Legalizing Illegality' in Major Countries like the UK and France"

[Image source=Yonhap News]

The report states that exemptions from liability for violence and destructive acts are difficult to find precedents for in countries such as the United Kingdom and France.

In the UK, limits on damage claims apply only to simple unlawful acts, which is fundamentally different from the content proposed in the Korean Labor Union Act amendments. Damage caps apply to unions committing unlawful collective actions, but caps are applied separately for each unlawful act. When multiple unlawful acts occur, damages are cumulative, and individual union members are not subject to damage caps.

No legal provisions in the UK protect unions or union members from liability for violence and destructive acts. The Korean amendments, however, exempt both unions and union members from liability for general unlawful collective actions, imposing damage caps only on individual union members for acts of violence and facility destruction by the union.

In France, although legislative limits on union liability for damages exist, the Constitutional Council ruled such limits unconstitutional in 1982, citing violation of the principle of equality by denying compensation rights to all.

"Concerns Over a 'Second Real Estate Lease 3 Laws'... Abandoning Amendments Recommended"

Officials from the Coalition for the Amendment of the Housing Lease Protection Act held a press conference on March 30 in front of the Presidential Transition Committee at the intersection in Tongui-dong, Jongno-gu, Seoul, opposing the abolition and reduction plans of the Three Lease Laws. Photo by the Transition Committee Press Photographers Group

The report warns that pushing through the amendments to the Labor Union Act could lead to results contrary to legislative intent due to balloon effects, similar to the 'Real Estate Lease 3 Laws.'

In the case of the Lease 3 Laws, landlords were forced to accept significantly unfavorable conditions to protect tenants, causing many landlords to refuse lease renewals, which contributed to the so-called 'Jeonse crisis.'

Similarly, the Labor Union Act amendments could provoke frequent labor disputes contrary to their legislative purpose. This could, in the long term, weaken corporate management, leading to reduced investment and relocation of factories abroad.

Professor Cha said, "The fundamental spirit of the labor rights guaranteed by the Constitution is to secure substantial equality between employers and workers," adding, "It is necessary to establish systems and norms within the scope that does not disrupt the social balance between labor and management."

This content was produced with the assistance of AI translation services.