The government has issued its second set of enforcement guidelines in six months since the revised Trade Union Act took effect in March, but critics say the move fails to fix structural flaws running through the legal framework. With administrative guidelines carrying no binding force, calls are growing to revise the statute itself rather than rely on directives to reduce uncertainty in the field.
The biggest problem with the revised act lies in the definition of "employer" under Article 2, Clause 2, according to business groups and labor law scholars on the 3rd. The revision broadened the scope to include those who "substantially and specifically control and determine" working conditions, but lawmakers included no provision delegating detailed criteria to a presidential decree. Critics say those covered by the law cannot predict the extent of their liability in advance, even though employer status is directly tied to Article 90, which imposes criminal penalties for refusing collective bargaining. Another concern is that a prime contractor that faithfully carries out its duties under the Occupational Safety and Health Act could end up bearing a bargaining obligation precisely because it exercises influence over subcontractors' working conditions.
The Ministry of Employment and Labor says the two sets of guidelines lay out specific criteria to improve predictability on the ground. The ministry explains that it opted for guidelines rather than a presidential decree because the statute contains no delegating clause. But administrative guidelines have no external binding force and cannot compel rulings by the Labor Relations Commission or the courts. A dispute over whether the commission's ruling in a case involving a subcontracted cafeteria union at Hanwha Ocean (042660.KS) contradicted government guidelines has left industry officials worried that administrative interpretations and judicial rulings will continue to diverge case by case.
The scope of labor disputes under Article 2, Clause 5, adds further uncertainty. The revision expanded the grounds for industrial action to include "management decisions affecting working conditions." In the latest guidelines, the government drew a line, saying industrial action opposing management decisions themselves — such as mergers, new plant construction or the adoption of new technology — is not permitted. Yet critics say it is difficult to close off a workaround in which a union demands the withdrawal of the same decision by framing its case around workforce reallocation or job security rather than the business judgment itself.
Yoon Dong-yeol, a professor of business administration at Konkuk University, said attempts by unions to demand prior consent to management decisions or to force their withdrawal through strikes carry a significant risk of infringing on management rights. "The boundaries between matters of business judgment, mandatory bargaining subjects and labor-management consultation items must be made clear," he said.
Procedural gaps are another issue. The current single bargaining channel system contains no special rules governing multilateral bargaining relationships involving a prime contractor and multiple subcontractor unions. Business groups say the Labor Relations Commission's decisions to subdivide bargaining units at some workplaces are unsettling the established "one company, one bargaining table" order and could raise bargaining costs in the field.
It also remains unclear how the no-work, no-pay principle applies when a subcontractor union strikes against a prime contractor, whether the prime contractor may lock out workers, and how far the ban on replacement labor extends. Experts stress that fundamentally reducing such confusion requires overhauling the statute rather than continuing to patch up administrative guidelines. Kim Hee-sung, a professor at Kangwon National University School of Law, said substantial control has no objective yardstick, so conclusions can differ depending on who interprets it. "Even if the government issues guidelines, litigation over individual cases is unavoidable in the courts," he said.
