Ministry Establishes New "Committee for Supporting Determinations on Collective Bargaining"
Subcommittee for Determining Labor Disputes to Be Set Up Under the Committee
The government will establish a separate body next month on the 10th, ahead of the enforcement of the so-called Yellow Envelope Act (Amendment to Articles 2 and 3 of the Trade Union and Labor Relations Adjustment Act), to swiftly determine whether a principal contractor qualifies as an employer and other related issues. The aim is to quickly interpret key points of contention, such as whether collective bargaining can be formed between a principal contractor that has no direct employment contract and a subcontractor’s union, thereby reducing confusion at worksites.
According to the government on the 19th, the Ministry of Employment and Labor recently issued an advance administrative notice of a draft regulation on the establishment and operation of the “Committee for Supporting Judgments on Collective Bargaining.” The ministry explained, “As the scope of employers and labor disputes has been expanded by the amendment of Articles 2 and 3 of the Trade Union Act, there is a need for an advisory body to support administrative interpretations of individual and specific cases.” The core of the Yellow Envelope Act is to broaden the concept of “employer” so that subcontractor unions can bargain with principal contractors, and to expand the scope of lawful industrial action regardless of whether a worker is employed by a principal or subcontractor.
The Committee for Supporting Judgments will be placed within the ministry’s headquarters and composed of up to 10 public-interest members of the Central Labor Relations Commission, appointed by the minister. Under the committee, a “Special Committee for Judgments on Employer Status” and a “Special Committee for Judgments on Labor Disputes” will each be established. The ministry expects that, although the committee’s interpretations will not be legally binding, they will in practice function as guidelines at worksites. In particular, because the committee will be centered on public-interest members of the Central Labor Relations Commission, its influence on the labor-management field is also expected to be significant.
Previously, in December last year, the ministry had presented a basic policy direction on the expanded definition of employer and the scope of labor disputes through interpretive guidelines on the amended Trade Union Act. The key lies in a step-by-step procedure that, before principal-subcontractor bargaining, confirms “who is the employer” and “how bargaining is to be conducted.” Primarily, the Committee for Supporting Judgments will apply these guidelines to individual labor-management relationships and issue determinations on matters such as whether the principal contractor qualifies as an employer and whether a given industrial action can be directed at the principal contractor.
For example, if a subcontractor union wishes to bargain directly with the principal contractor, the Committee for Supporting Judgments on Collective Bargaining will first issue an administrative interpretation. If both labor and management accept the committee’s interpretation, they may autonomously decide whether and how to bargain, in accordance with the principle of labor-management autonomy.
However, if either side does not agree, it may file an application with a Labor Relations Commission for a determination on employer status. Under the amended Enforcement Decree, a subcontractor union seeking bargaining with a principal contractor must apply to the Labor Relations Commission for separation of the bargaining unit, and before deciding on the separation of the bargaining unit, the commission must first review employer status. The commission’s determination is legally binding, and if either party contests it, the case may proceed to a re-examination by the Central Labor Relations Commission and then to an administrative lawsuit.
In interpreting the criteria for separating bargaining units, the committee will follow the revised Enforcement Decree of the Yellow Envelope Act that the ministry has re-notified for legislation. The revised decree divides the previous single set of criteria for bargaining units into “general criteria” and “principal-subcontractor-specific criteria.” The general criteria require that decisions focus on objective differences in working conditions, such as the nature of work and working environment, wages, working hours, benefits, type of employment, and existing bargaining practices. For principal-subcontractor bargaining, the decree specifies that priority should be given to factors such as the commonality of interests between unions, the appropriateness of representation of interests, and the potential for conflict. The ministry will collect opinions on the draft establishing the Committee for Supporting Judgments until the 23rd and will re-examine the validity of the committee every three years, based on July 1 as the reference date.
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