A court has sided with labor authorities for two days in a row over orders requiring prime contractors to post notices of subcontractor unions' demands for collective bargaining. The court drew a clear line, saying that posting such a notice does not create any new obligation for a prime contractor to bargain collectively or sign a collective agreement.
The 11th Division of the Seoul Administrative Court, presided over by Chief Judge Kim Joon-young, on the 17th dismissed a request by Joongheung Toghen to suspend enforcement of a reconsideration ruling that ordered the company to correct its failure to post notice of a bargaining demand, the National Labor Relations Commission said on the 18th. The suit was filed against the commission's chairman. On the 16th, the same court's Administrative Division 3, presided over by Chief Judge Ho Sung-ho, also declined to grant a request of the same nature filed by Kukdong Engineering & Construction.
Under the Labor Union Act, an employer that receives a demand for collective bargaining from a union must post that demand within the workplace for seven days, where all employees can see it, as part of the process of consolidating bargaining channels. The requirement is a procedural step to inform other unions and workers of the opportunity to join the bargaining.
Both cases stem from demands the Korean Tower Crane Operators' Union made to prime contractors after the revised Labor Union Act took effect, which the construction firms rebuffed by refusing to post notice of the bargaining demands. The labor commission found that the prime contractors are in a position to substantially and concretely control and determine working conditions for tower crane operators, including safety and health, and ordered them to correct their failure to post the notices. The construction firms challenged the orders, filing requests to suspend enforcement alongside their main lawsuits.
In seeking the suspensions, the two companies argued that complying with the posting requirement would cause enormous damage that would be difficult to reverse. They said that once they met the posting obligation they would be drawn into the bargaining process, which would ultimately force them to sign a collective agreement, and that refusing to bargain would expose them to criminal punishment for unfair labor practices. They also argued that if bargaining broke down and a strike followed, they would face massive penalties for construction delays.
The court drew a line, saying the labor commission's corrective orders impose only a procedural obligation under public law to notify employees of the bargaining demand within the workplace. Posting the notice, it said, does not directly create a legal relationship between the prime contractor and the union, nor does it generate any new duty to enter into collective bargaining or conclude a collective agreement. The court also held that whether a future refusal to bargain would constitute an unfair labor practice would not be affected simply by compliance with the posting order. It rejected the companies' concerns about strikes as well, saying the corrective orders on posting could hardly be seen as directly linked to the occurrence of industrial action.
The successive rulings raise the likelihood that other requests to suspend enforcement filed against the commission's chairman will also be denied. Six companies, including Hanwha Ocean, are awaiting decisions on their injunction requests. Joongheung Toghen and Kukdong Engineering & Construction plan to press their case that the commission's rulings were unjustified through their main lawsuits.
