[News Terms] 'Strike' Between Legality and Illegality

Workers' Legitimate Rights Guaranteed by the Constitution
Strikes May Be Deemed Illegal Depending on Balance with Employer Property Rights
Government Takes Hard Line on Hwamyulyeondae, Suggests "Additional Transport Orders May Be Issued Anytime"

On the 8th day of the Cargo Solidarity strike by the Public Transport Workers' Union of the Korean Confederation of Trade Unions, a general struggle resolution rally is being held in front of the Samsung Electronics Gwangju Plant in Hanam Industrial Complex, Gwangsan-gu, Gwangju, on the afternoon of the 1st. Photo by Yonhap News

[Asia Economy Reporter Han Seung-gon] As the Cargo Solidarity Headquarters' general strike enters its 9th day on the 2nd, conflicts with the government are intensifying. Previously, the government issued work commencement orders to those refusing transportation. Given this situation, interpretations surrounding the strike are divided. While some argue it is illegal, many believe it is a legitimate right of workers guaranteed by our law.

Strike: A Right Guaranteed by the Constitution for Workers

In a dictionary sense, a strike (罷業) refers to workers collectively stopping work at once to maintain or improve working conditions or to achieve certain political objectives.

The collective labor disputes by miners and dockworkers in the late 19th century are recorded as the first strikes in Korea's labor history. In 1898, miners staged a strike refusing to mine in protest against the transfer of mining rights of a mining company to foreigners. From September 1898 to December 1903, dockworkers at Mokpo Port in Jeollanam-do conducted strikes demanding improved working conditions. Additionally, there were strikes such as the 1948 power supply stoppage strike by workers of Joseon Electric Company and the 1951 strike opposing union suppression at Busan Chosun Textile Company.

Such strikes refer to collective labor disputes where workers, under the leadership of labor unions or voluntarily, stop providing labor to employers. Legally, this is covered under the three labor rights stipulated in Article 33, Paragraph 1 of the Constitution (the right to organize, the right to collective bargaining, and the right to collective action). However, just because the Constitution guarantees these rights does not mean workers can strike immediately. To strike, there must be a labor union. Among the three labor rights, the right to organize allows workers to form unions. The right to collective bargaining is the union's right to negotiate wages and working conditions with the employer. If negotiations fail, the union can proceed to strike.

For example, in the case of the Seoul Metro Labor Union, the core issue in collective bargaining was whether to implement workforce restructuring (reducing 1,539 employees by 2026). The management proposed postponing restructuring this year and implementing previously agreed measures to fill long-term vacancies and increase train crew in the first half of next year. The Metro union and the integrated union affiliated with the Federation of Korean Trade Unions continued discussions until the last moment but ultimately rejected the proposal and went on strike. Later, management presented a new proposal, and the negotiating parties agreed, ending the strike. Management retreated from the original plan, deciding not to enforce forced restructuring and to increase safety personnel.

On the morning of the 1st, one day before the nationwide railway labor union's announced strike deadline, a freight truck passes in front of a stationary freight train at the Inland Container Depot (ICD) in Uiwang-si, Gyeonggi-do. Photo by Yonhap News

The Importance of Strike Legitimacy... Illegal Rulings on Strikes Against Economic Layoffs

Another point of conflict regarding strikes is their legitimacy. According to a Supreme Court precedent from May 2000, for a labor dispute to be legitimate, ① the subject must be an entity capable of collective bargaining, ② the purpose must be to foster autonomous negotiations between labor and management for improving working conditions, ③ the strike must commence when the employer refuses collective bargaining on specific demands for improving working conditions, and except in special circumstances, must follow legally prescribed procedures such as union member approval, and ④ the means and methods must harmonize with the employer's property rights and must not involve violence.

On the other hand, Korea's strikes differ from those in other countries. In Korea, strikes opposing economic layoffs are considered illegal. For example, regarding whether management measures to strengthen corporate competitiveness, such as restructuring or mergers, can be subject to labor disputes, the Supreme Court ruled in December 2003 that "economic layoffs fall under high-level managerial decisions of the management entity. In principle, they cannot be subjects of collective bargaining and lack legitimacy."

In contrast, countries like the UK, France, and Japan consider strikes against economic layoffs legal. Unlike Korea, which requires all conditions regarding the subject, purpose, and procedure of disputes to be met, these countries have a broader scope of strike activities. In 2014, when the Peugeot Citro?n automobile group announced layoffs of 8,000 workers across France, workers conducted a strike lasting four months. Also, in February of the same year, the UK's Rail, Maritime and Transport Union (RMT) and the Transport Salaried Staffs' Association (TSSA) went on strike opposing London Underground's (LU) restructuring plan to lay off 950 employees.

On the 1st, the 8th day of the Cargo Solidarity general strike, a sign indicating a shortage of gasoline was posted at a gas station in Seoul. As the gasoline supply disruption became more apparent, the government began considering expanding the work commencement order to include tanker trucks. Photo by Yonhap News

Cargo Solidarity General Strike, Government's 'Work Commencement Order' Sparks Legal Interpretation Dispute

Amid various standards and interpretations regarding the recognition of strikes, the Cargo Solidarity strike has sparked a dispute over the government's work commencement order. Currently, the Cargo Solidarity demands the permanent establishment of the safe freight rate system and expansion of applicable items. Meanwhile, the government stated that expanding items beyond Cargo Solidarity, containers, and bulk cement trailers is difficult.

With only differences in views confirmed and no apparent convergence in discussions, the government issued a work commencement order forcing a return to work for the first time in history. In response, Cargo Solidarity declared the government's issuance of the work commencement order unconstitutional and announced plans to escalate their struggle with applications for suspension of effectiveness and other stronger actions. Given this situation, the legality of the Cargo Solidarity strike is expected to be determined by court rulings.

The government also hinted at the possibility of issuing work commencement orders in other industries. This measure is based on analyses that if the transportation refusal due to the Cargo Solidarity strike prolongs, most construction sites will inevitably face shutdowns.

On the morning of the 30th of last month, Won Hee-ryong, Minister of Land, Infrastructure and Transport, visited a cement transportation company in Seocho-dong, Seoul, to inspect the transportation refusal situation. He said, "Although it is still in the early stages, after today, inventory will rapidly decrease or loading space will fill up daily in sectors such as oil refining, steel, and containers, sharply increasing the national economic crisis level." He added, "If we wait until damage occurs to issue a work commencement order, it will be too late, so if the damage situation progresses urgently, we will issue additional work commencement orders at any time."

On the other hand, the Korean Confederation of Trade Unions (KCTU) holds the position that the government's work commencement order itself lacks legal grounds. On the 28th of last month, KCTU issued a statement saying, "According to the government's logic, cargo workers are not workers but individual business owners," and argued, "Since individual business owners' refusal to operate their business is not illegal, the work commencement order has no legal basis to enforce coercive power."