노동쟁의조정 대상의 재검토

Abstract

For trade union to take industrial actions in Korea, it is required to go through mediation procedures by the Labor Relations Commission, or private mediation or private arbitrator, beforehand (See Article 45 (2), Article 52 of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the “TULRA”)). In other words, so-called principle of prepositive-conciliation is provided for industrial actions in Korea. The Labor Relations Commission shall conduct the proceedings of mediation, without any delay, when one of the parties to labor relations submits a request for mediation to the Labor Relations Commission (Article 53 of the TULRA). Mediation shall be completed within ten days in the case of general businesses, and fifteen days in the case of public services, after the request is made for mediation (Article 54 of the TULRA). “Labor disputes” here means that “any controversy or difference arising from disagreement between the trade union and employer or employers　association (hereinafter referred to as “parties to labor relations”) concerning the determination of terms and conditions of employment such as wages, working hours, welfare, dismissal, other treatment, etc. In this case, “disagreement” is referred to as situations in which no agreement is likely to be reached by the parties even though they continue to attempt to make an agreement” (Paragraph 5 Article 2 of the TULRA). As the objects of mediation of industrial actions conducted by the Labor Relations Commission are limited to 'labor disputes,' the Labor Relations Commission do not undertake mediation when the subjects of disputes between trade union and employer do not amount to “labor disputes.”In reality, in the operation of Labor Relations Commission, it only carries out mediations of disputes over terms and conditions of employment in the strict way, such as wages and working hours. Therefore, disputes arising from collective labor relations including the union security are not mediated by the Labor Relations Commission, which is not desirable for the perspective of a peaceful settlement of labor disputes. In this paper, it criticizes existing case law, legal theories, and administrative interpretations regarding the meaning of labor disputes, and proposes new concept of the objects of labor disputes mediation. It is reasonable to provide mediation services by the Labor Relations Commission for every disputes which concern with collective labor relations such as union activities, or industrial actions regardless whether they are legal or illegal.