Korean labor law: Lockout due to Union Strikes by Korean labor attorney, Bongsoo Jung

Korean labor law: Lockout due to Union Strikes?

by Korean labor attorney, Bongsoo Jung?

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An employer may declare lock-out to counteract an industrial act taken by the labor union. Lock-out refers to "an employer's act of refusing to accept work provided by his/her employees" as a counteraction to the industrial action taken by the employees. It is a type of industrial action that an employer is allowed to take in order to guarantee an equal playing field in labor relations. A lock-out may not be done in a preemptive or offensive way. The lock-out shall be carried out only after the union has taken industrial action. This means that a lock-out declared before any industrial action by the union is unlawful. If a lock-out is not withdrawn even after the union genuinely has declared a halt to the industrial action, the lock-out shall be considered an offensive one and so shall be deemed unjustifiable. The following explains the conditions and methods required?to justify a lockout, and the effects of such an action.?

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1. Concept ?

??Lockout is a situation in which the employer refuses to receive employees' service as a means to defy their industrial actions and prevent their entry.. The lockout sustains the power balance between labor and management by allowing the employer to counteract against employees' industrial actions. ?

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2. Requirement ?

(1) Opposing lockout ?

Lockout refers to the employer's refusal to receive collective labor service. The employer usually implements an opposing or defensive lockout after inception of an industrial action. Therefore, the employer may only report a lockout after the labor union takes a legitimate industrial action following a cooling period (mediation period). ?

(2) Defensive lockout ?

A passive and defensive lockout is highly suggested if a counteraction deems unavoidable since an aggressive and offensive lockout is unjustifiable. In principle, the law prohibits a preemptive lockout or any measure taken that exceeds a considerable degree in scope and method of the industrial action. ?

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3. Method ?

(1) Practical measures ?

A lockout is not legitimate if it is only notified to the labor union, A practical measure must be taken before refusing employee's work. ?

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(2) Applicable to any industrial action ?

A lockout can be applied to any industrial action. It may be implemented upon slowdown strikes or work-to-rule while employees are working. ?

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(3) Partial lockout and general lockout ?

Industrial actions are actions or counteractions, such as strikes, slowdown strikes, lockouts, and other measures taken by labor relations?to achieve their goals. As the labor union is allowed to initiate a general or partial strike, the employer may also choose to execute a general or partial lockout as a countermeasure.?

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4. Effect ?

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(1) Exempt from obligation of receiving labor service and rendering wage ?

An employer has the rights to refuse to receive employees' labor service during a lockout. In addition, the employer is not obliged to render wage to employees who do not provide labor service due to a lockout, since wages mean remuneration for work. This exemption extends not only to union members subject to lockout, but also to all other non-union employees. However, if an employee who is not subject to the lockout provides regular work for the company, contractual wage shall be paid for the service provided. ?

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?(2) Holiday and leave ?

As an employer can legitimately refuse to receive labor service of the employees subject to the lockout, the statutory holiday and leave according to the Labor Standards Act does not occur. ?

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?(3) Off-limit to employees ?

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??1) Scope of off-limits ?

A lockout is a refusal to accept labor service in which the employer can prevent employees from entering the workplace through the means of closing the company entrance gates or withdrawing employees from production facilities and precluding their labor service.?????

Accordingly, employees' noncompliance to leave the workplace during a legitimate lockout may be subjected to criminal charges as noncompliance of a deportation order. Provided that, a lockout shall be limited to production facilities or office facilities as it merely purports to prohibit employees from production and service. Nevertheless, the employer may allow union members entry to certain facilities necessary for union activities or welfare under rational scope, such as union offices, dormitory, canteen, and other facilities not related to production or work.?

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2) Occupancy and lockout of workplace ?

Despite the employees' legitimate occupancy of the workplace before the lockout, the employer is given full ownership of the workplace and may request leave of the working facilities during a lockout. Sustained occupancy at this time is illegal and will be subjected to law for noncompliance of a deportation order.?

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(4) Available partial production ?

An employer does not have to stop production completely even during a lockout and may continue to receive service from employees not participating in strikes.?

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(5) Effect of illegal lockout ?

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1) Employees' entry to workplace ?

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If the employer's lockout is not legitimate, it is not a crime for the employee to enter the workplace where he has usually been permitted to enter, unless there is a special reason.?

2) Wage payment during a lockout ?

In case where a lockout serves as a measure against the union's industrial actions (strikes or slowdown strikes), the employer is exempt from the obligation to pay wages. However, in case of a preemptive and offensive lockout, the wages must be rendered (shutdown allowance).?

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5. Report ?

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An employer shall notify intent of a lockout, in advance, to the Administrative Office and the Labor Relations Commission. In case of a lockout taken without prior notice, the employer may be subjected to pay a fine up to 5 million won (Article 96 of the Union Act). Here, the notice of intent of a lockout is not a substantial requirement, but a procedural requirement demanded out of administrative necessity. Therefore, a non-reporting of the lockout does not necessarily affect the legitimacy of a lockout. ?

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6. Cancellation ?

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The union's industrial action is the preliminary requirement of a lockout as it also is the conditional requirement to sustain a lockout. In case the union decides to return to work, there remains no reason for continuing the lockout. However, where the union's decision to return to work does not seem genuine and there exists a likeliness of ensuing industrial actions, the employer may justifiably prolong the lockout. ?

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