The Yellow Envelope Act (Revised Labor Commission Act) Undermines the Rule of Law

The Problems with the KCTU’s Struggle to Push Through Legislation Full of Toxic Provisions with the Opposition

During the regular session of the 21st National Assembly, which began in October, the Korean Confederation of Trade Unions (KCTU) has been desperately trying to amend Articles 2 and 3 of the Trade Union Act. This proposed amendment to Articles 2 and 3, commonly called the Yellow Envelope Act (Revised Labor Commission Act), has two core elements: one is to define the employer of subcontracted workers as the “primary contractor,” and the other is to introduce provisions preventing indiscriminate claims for damages and provisional seizure arising from strikes.

In this regard, there is a wide gap between the ruling and opposition parties over both the legislative process and the content of the bill. A clear analysis and review are therefore necessary so that, even if it is enacted, it may later be corrected.

First, with respect to the legislative process, it is necessary to consider whether the KCTU, as the party with the greatest stake in the matter, may be violating the Trade Union Act by directly participating in rallies organized by both political camps in order to pass the Yellow Envelope Act (Revised Labor Commission Act). Under the current Trade Union Act, collective action by unions is recognized only with respect to “the determination of working conditions, such as wages, working hours, welfare, dismissal, and other treatment” (Article 2, subparagraph 5).

Accordingly, there is clearly a strong possibility that the KCTU’s holding rallies with the opposition party in support of the Yellow Envelope Act (Revised Labor Commission Act) violates the Trade Union Act. Nevertheless, in July, the KCTU carried out a two-week general strike in front of the presidential office while shouting for the “resignation of the Yoon Suk Yeol administration.”

Even more seriously, on the 26th of last month, there were frequent cases in which the KCTU, in its own name, took collective action by participating in “a rally opposing Japan’s release of contaminated water,” a political rally wholly unrelated to working conditions. It is also questionable whether members of the National Assembly from the Democratic Party of Korea, the Justice Party, the Basic Income Party, and the Progressive Party are engaging in a legislative campaign as though they were representatives of the KCTU. No matter how one looks at it, it is hard to dispel the suspicion that opposition lawmakers are abusing their legislative authority and betraying both their constituents and the public.

As for the contents of the bill as well, there is reason to suspect that it is unconstitutional legislation violating the principle of self-responsibility derived from Article 10 of our Constitution. This means that even after enactment, there is a high likelihood that constitutional litigation will continue to be filed, such as constitutional complaints or motions requesting constitutional review of the statute. Indeed, even if the bill is enacted, its effectiveness itself is doubtful.

In addition, defining the employer of subcontracted workers as the “primary contractor” is highly likely to violate the principle of proportionality under Article 37(2) of the Constitution, in that it imposes excessively burdensome supervisory duties on the principal business operator. The proposal to add provisions preventing indiscriminate claims for damages and provisional seizure in relation to strikes, as mentioned above, not only has a strong likelihood of violating Article 10 of the Constitution, but its effectiveness is also questionable.

Article 750 of the Korean Civil Act provides that “a person who causes losses to or inflicts injury on another person by an unlawful act, willfully or negligently, shall be bound to make compensation for damages arising therefrom.” In other words, even if the Trade Union Act, as a special statute, deprives employers of the right to sue, employers may still hold unions accountable for unlawful acts under the Civil Act. This is because most Korean courts and legal scholars follow the theory of concurrence of claims, under which, even where immunity is granted under a special statute, victims may still pursue tort liability under Article 750 of the Civil Act.

In conclusion, if the KCTU succeeds in enacting the Yellow Envelope Act (Revised Labor Commission Act) while carrying out illegal rallies together with the Democratic Party of Korea, the Justice Party, the Basic Income Party, and the Progressive Party, the rule of law in the Republic of Korea will, for all practical purposes, have been handed a death sentence.

The KCTU has been criticized for using its enormous volume of union dues not primarily to protect workers’ rights and interests, its original purpose, but rather to fund political activities. Nevertheless, the KCTU is also suspected of seeking enactment of the Yellow Envelope Act (Revised Labor Commission Act) in order to engage in political activity more freely and shield itself from such criticism.

An even bigger problem is that if the Yellow Envelope Act (Revised Labor Commission Act) is enacted, it could cause considerable confusion in the public’s legal sense across Korea’s legal system as a whole. First, if the representative of the primary contractor is deemed the employer of workers at subcontractors, the scope of parties subject to civil liability could be greatly expanded. If mishandled, this could even lead to a judicial mindset in which elderly parents living with their children are expected to bear responsibility for their children’s debts.

Likewise, introducing provisions to prevent indiscriminate claims for damages and provisional seizure arising from strikes could also produce the result of granting immunity even when a union goes on strike not for workers’ interests but for the political interests of union leaders. This would mean a grave risk of seriously undermining the legal order of liberal democracy, which is grounded in principles of equity. One can only hope that the rule of law in the Republic of Korea will not be severely damaged.

Samhyun Jeon, Professor, Department of Law, Soongsil University

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Original title: 법치주의 훼손하는 노란봉투법

Author: Sam-hyun Jeon

Date: 2023-09-11

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=press&idx=26013