[Law Firm Now] Kwangjang Successfully Concludes Seminar on Analysis and Outlook of Yellow Envelope Act Enforcement Decree and Interpretation Guidelines

"A Significant Change Shaking the Foundation of Labor-Management Relations"
Various Interpretations Possible for 'Structural Control' as the Criterion for Employer Status
"Scope of Replacement Work Ban May Be Interpreted in Light of Legislative Intent"

The 'Amended Labor Union Act Enforcement Decree and Interpretation Guidelines Analysis and Outlook Client Seminar,' hosted by the law firm Kwangjang (Managing Partner Kim Sang-gon) on the 7th, concluded successfully.

Kwangjang organized this seminar to provide an easy-to-understand explanation of the interpretation guidelines (draft) and the amended enforcement decree of the Labor Union Act, both of which were pre-announced by the Ministry of Employment and Labor at the end of last year ahead of the enforcement of the so-called Yellow Envelope Act on March 10. The goal was to offer solutions to corporate stakeholders who need to prepare for the new system.

On the 7th, at the 'Amended Labor Union Act Enforcement Decree and Interpretation Guidelines Analysis and Outlook Client Seminar' held in webinar format by the law firm Kwangjang, Advisor Kyungduk Ahn, former Minister of Employment and Labor, delivered the opening remarks. Law firm Kwangjang

The seminar, which was held in a webinar format starting at 3:00 p.m. on the 7th, attracted more than 1,000 registrants, demonstrating the high level of interest in the Yellow Envelope Act.

Kyungduk Ahn, former Minister of Employment and Labor and currently an advisor at Kwangjang, stated in his opening remarks, "The enforcement of the amended Labor Union Act, commonly referred to as the Yellow Envelope Act, is now just two months away. On the ground, there is a growing sense of tension as expectations and concerns intersect."

He continued, "This amendment is an extremely important issue that shakes the very foundation of labor-management relations, even more so than the 2010 revision that permitted multiple unions and established a single bargaining channel. Nevertheless, the amendment passed without sufficient deliberation."

Advisor Ahn added, "Since then, the administration has been trying to clarify the details by issuing interpretation guidelines for the enforcement decree, but I believe there are limits to eliminating the prevailing uncertainties. In particular, the expansion of the definition of 'employer,' the broadening of the scope of labor disputes, and the issue of bargaining channels now require companies to face legal and management challenges of an entirely different magnitude."

He also emphasized, "Legal responses have now become an essential element to be considered from the strategy design stage of management, rather than as an after-the-fact remedy. Past practices may now be deemed illegal or unlawful. A thorough internal analysis and response are urgently needed."

Finally, Advisor Ahn stated, "Today's event is not just about studying the contents of the law, but about considering how to redefine labor-management relations and prevent risks within the new legal framework, and to help find solutions together."

This webinar, moderated by Lawyer Kim Soyoung (40th Judicial Research and Training Institute), was divided into four sessions.

In the first session, Lawyer Kim Youngjin of Kwangjang (35th class), who previously served as a dedicated research judge for the Supreme Court on labor cases, gave a presentation on "Analysis of Employer Status in the Interpretation Guidelines."

Lawyer Kim explained, "This amendment expands the scope of labor disputes by broadening the concept of employer. Accordingly, the interpretation guidelines refer to 'non-contractual employers.' The main purpose of the law is to expand the scope of direct bargaining between subcontractor unions and the principal company, which is the non-contractual employer."

He further stated, "Restricting the liability for damages of unions arising in this process is the alpha and omega of the so-called Yellow Envelope Act."

On the 7th, Lawyer Kim Youngjin gave a lecture at the 'Seminar on Analysis and Outlook of the Revised Enforcement Decree of the Labor Union Act and Interpretation Guidelines' held in webinar format by the law firm Bae, Kim & Lee LLC. Bae, Kim & Lee LLC

Regarding the interpretation of Article 2, Paragraph 2 of the Labor Union Act, which defines the concept of employer, Lawyer Kim said, "The requirement of 'substantial and specific' is an 'AND' condition that must be met simultaneously. The phrase 'control or determination' is ambiguous in the text of the law, but since the middle dot is essentially a parallel condition, it can be interpreted as either 'control or determination' or 'control and determination.'"

He also commented on the interpretation of this provision, saying, "There is some doubt about the interpretation. Is not the opposite of 'substantial' actually 'formal'? And is not the opposite of 'specific' not 'comprehensive,' but rather 'abstract'?"

He added, "Even in the case of 'control,' I believe it should be a position that can control the decision-making process, rather than just physical control."

Lawyer Kim stated, "The Ministry of Employment and Labor has indicated in its interpretation guidelines that the key criterion for determining employer status will be whether there is 'structural control' over working conditions. However, since 'structural control' is also an abstract concept, there is still a long way to go in terms of interpretation."

At the end of his presentation, Lawyer Kim explained the criteria for recognizing non-contractual employers in various areas, such as ▲occupational safety ▲work environment ▲welfare ▲working hours ▲work methods, providing diverse examples.

He noted, "With regard to wages, the guidelines take the position that it is difficult to recognize employer status for the principal company as a counterpart in collective bargaining. However, if there are circumstances such as the principal company and the contractual employer specifically determining the wage level of the relevant workers in a labor supply contract, then employer status may be recognized."

On the 7th, lawyer Changsoo Jin gave a lecture at the 'Amended Labor Union Act Enforcement Decree and Interpretation Guidelines Analysis and Outlook Client Seminar' hosted by the law firm Kwangjang in a webinar format. Screenshot of the online seminar screen

In the second session, Jin Changsoo, head of the labor group at Kwangjang and former presiding judge of labor divisions at the Seoul Administrative Court and Seoul Southern District Court (21st class), presented on "Analysis of the Scope of Labor Disputes in the Interpretation Guidelines and Unification of Bargaining Channels in the Enforcement Decree."

In the third session, Sim Minseok, head of the ESG Center at Kwangjang and former Senior Administrative Officer for Employment and Labor at the Blue House and Commissioner of the Seoul Regional Employment and Labor Office, gave a lecture on "Future Prospects Related to the Enforcement Decree and Interpretation Guidelines."

During the final Q&A session, which followed the lectures, the presenters provided detailed answers to questions submitted in advance.

Among the questions was one concerning "prohibition of replacement work," one of the most controversial issues since the amendment of the Labor Union Act.

The question was: "If a subcontractor union goes on strike, the principal company cannot hire or replace workers unrelated to the business, nor can it outsource or subcontract the suspended work. In this case, to what extent is replacement work allowed for the principal company? Are all subcontractor workers related to the principal company's business permitted to perform replacement work?"

In response, Lawyer Jin Changsoo explained, "According to prevailing views, when a strike occurs, the principal company cannot hire or replace workers unrelated to the business. As a result, it has generally been accepted that direct employees of the principal company, such as office workers or those performing other tasks, could be assigned to the suspended work due to the strike, but bringing in new external workers to perform the suspended work was not permitted."

He continued, "However, now that bargaining between principal and subcontractors is possible and the scope of bargaining has generally expanded to include the entire principal company's workplace as a single bargaining unit, if there are multiple subcontractors at a principal company's site and only a specific subcontractor goes on strike, it will still be possible, as before, for direct employees of the principal company to be assigned to the suspended work caused by that specific subcontractor's strike."

He added, "The question is whether workers from another subcontractor can be assigned to the work of the striking subcontractor. Previously, there was a strong perception that even assigning workers from another subcontractor would likely be illegal. Now, however, since even those other subcontractors are included in the same bargaining unit and are eligible to bargain, if some of them go on strike, it is theoretically possible for the remaining workers to be assigned to the suspended work."

However, he cautioned, "The amended labor law only broadened the scope of employers, the subjects of industrial action, and the scope of bargaining; it does not appear to have intended to expand the scope of replacement work. Therefore, if the legislative intent is strictly followed, despite theoretical consistency, there is still a significant possibility that assigning workers from other subcontractors to replacement work will remain prohibited."