Statutory Reservation in Notifications of Non-Recognition as a Trade Union, the Principal Contractor's Status as Employer, and the Duty of Fair Representation: The Structure of Reasoning in Three Supreme Court Judgments on Collective Labour Law

Question

Three judgments are reviewed on three questions. The first is the holding that a disposition notifying non-recognition as a trade union, issued under an enforcement decree without express delegation by statute, is unconstitutional and void. The second is the test for recognising a principal contractor as an employer bound to bargain collectively with a union of in-house subcontractor workers. The third is the duty of fair representation in the procedure for unifying the bargaining channel.

The first issue is the question addressed in 2016Du32992: "May a teachers' union that retains dismissed teachers as members be notified of non-recognition as a trade union without a statutory basis?" The second issue is the question addressed in 2018Da296229: "Is a principal contractor an employer obliged to respond to collective bargaining with a union of in-house subcontractor workers engaged in shipbuilding?"

The third issue is the question addressed in 2019Da262582: "Does a bargaining representative union breach its procedural duty of fair representation if it approves the 2014 tentative wage agreement while excluding a minority union?" All three judgments ask how, on the record, the boundaries of the statutory text and the substantive factors for decision are to be determined.

Material to check

First (2016Du32992), the issue in this judgment is whether a notification of non-recognition as a trade union, provided for in an enforcement decree without statutory delegation, violates the constitutional principle of statutory reservation and is therefore void. The question is whether the notification is merely a notice given after the fact or a "constitutive administrative disposition" that takes effect through the notification itself. To answer it, the record should be reviewed for the report of establishment and the certificate of that report, the union rules permitting dismissed persons to join, the request for correction, and the notice of non-recognition as a trade union. In particular, to determine whether the notification essentially restricts the "three basic labour rights under the Constitution", the circumstances of the request to correct the rules and the actual membership and activities should be compared with the notice.

Second (2018Da296229), the issue in this judgment is whether, in a case concerning a demand for collective bargaining to which the former Act applies, the existing legal principle on the employer that bears the duty to bargain collectively should be maintained. To determine whether an express or implied employment contract relationship with the workers was formed, the record should be reviewed for the employment contracts, the subcontracting agreement, the demand for collective bargaining and the materials on the circumstances of the refusal. In particular, the record should be checked for two things: whether the principal contractor was in a position to control and determine the "basic working conditions of the workers" in a substantial and specific manner, and whether it refused to bargain with a view to concluding a collective agreement.

Third (2019Da262582), the issue in this judgment is whether the bargaining representative union's duty of fair representation must be observed not only in the content of the collective agreement but also in the course of collective bargaining. To determine whether the union "appropriately provided the necessary information" and heard opinions, the record should be reviewed for the tentative agreement documents, the minutes of the extraordinary meeting of the council of delegates, and the notices sent to the minority union and the records of its consultation. In particular, the record should be checked for whether the procedures concerning basic and important matters were sufficiently followed and whether there was discrimination exceeding the scope of discretion.

Possible readings

In 2016Du32992, the issues were how to identify the essential matters that, under the principle of parliamentary reservation, the National Assembly must itself regulate by formal statute, and whether an enforcement decree may, without statutory delegation, alter or supplement the content of individuals' rights and duties or newly prescribe such content.

In 2018Da296229, the issue was whether, in a case to which Article 2 of the former Trade Union and Labor Relations Adjustment Act applies, the existing legal principle should be maintained. That principle treats the "employer that bears the duty to bargain collectively" as a person that has an employment contract relationship with the workers.

In 2019Da262582, three issues arose. The first was whether the bargaining representative union's duty of fair representation must also be observed in the course of collective bargaining. The second was whether that union is obliged to provide necessary information to, and gather the opinions of, the other unions that took part in the procedure for unifying the bargaining channel. The third was what requirements must be met to find a breach of that procedural duty of fair representation.

What the decisions held

Supreme Court en banc Judgment 2016Du32992 rendered 3 September 2020 held as follows: "A notification of non-recognition as a trade union is not an act of giving notice after the fact of, or confirming, the fact that a union has already become an unrecognised union by operation of law; it is a constitutive administrative disposition by which the union becomes an unrecognised union only through that notification." Through this judgment, the Supreme Court treats the notification not as a confirmation that the union is already unrecognised but as a constitutive disposition that strips the union of its status only through the notification. Such a notification leads to a prohibition on using the name of a trade union and to the loss of bargaining status. It therefore essentially restricts the three basic labour rights guaranteed by the Constitution. A notification addressed to a teachers' union goes beyond depriving it of its legal status and may deny its very existence, so it requires a clear statutory basis. The Trade Union and Labor Relations Adjustment Act itself provides for the return of a report of establishment, yet it contains no provision on notification to a trade union already in operation and no provision delegating that matter. Citing the legislative history in which the legislature, on reflection, abolished the dissolution order, the Court declares the enforcement decree provision at issue void.

Supreme Court en banc Judgment 2018Da296229 rendered 21 May 2026 held as follows: "In a case to which Article 2 of the former Trade Union and Labor Relations Adjustment Act applies, the existing legal principle on the employer that bears the duty to bargain collectively is sound and must therefore be maintained." According to this judgment, the latter sentence added to Article 2 subparagraph 2 by Act No. 21045 on 9 September 2025 takes effect from 10 March 2026 and has no transitional provision. Article 2 of the former Trade Union and Labor Relations Adjustment Act therefore applies to the bargaining demand made in 2016. The Court maintains the existing principle that the employer bearing the duty to bargain collectively is a person that has an express or implied employment contract relationship with the workers, under which, in a relationship of subordination in employment, it directs and supervises them, receives their labour and pays them wages. Control and interference are factual acts capable of infringing the three basic labour rights, which is why the concept of employer has been read broadly in that context. Collective bargaining, however, presupposes the improvement of a contractual relationship, so caution is needed before extending it to an affirmative duty to bargain. Because Article 90 of the Trade Union and Labor Relations Adjustment Act imposes imprisonment for not more than two years or a fine not exceeding KRW 20 million, the principle of legality in criminal law (nullum crimen sine lege) requires strict interpretation, and the legislature's decision to amend the law must be respected. Because the judicial function aims at the remedy of rights in concrete cases, the Court cannot declare abstract legal principles unrelated to the concrete case. The purport of the amended Act may be examined in the cases to which it applies in future.

Supreme Court Judgment 2019Da262582 rendered 29 October 2020 held as follows: "The duty of fair representation functions as an institutional safeguard to prevent infringement of the essential content of the right to collective bargaining guaranteed by the Constitution, and it provides the ground that justifies extending the effect of a collective agreement concluded between the bargaining representative union and the employer to the other trade unions that took part in the procedure for unifying the bargaining channel (hereinafter 'minority unions')." Through this judgment, the Supreme Court holds that the duty of fair representation, which protects minority unions that lose their independent right to bargain, extends not only to the content of the collective agreement but also to the course of collective bargaining, and that it requires the provision of necessary information and the gathering of opinions. Given the dynamic nature of bargaining and the representative's discretion, however, not every omission of procedure at every stage amounts to a breach. Taking the whole process together, a breach may be found where the procedures concerning basic and important matters were not sufficiently followed and the scope of discretion was thereby exceeded. The Court holds that a breach of procedure cannot be found solely because minority union members were not allowed to take part on equal terms in a vote of the general meeting of members or of the council of delegates on the tentative agreement. The representative has an independent power to conclude the collective agreement, the vote is an internal procedure, and no provision governs a coordinating procedure for such a vote. Taken together, these points make it difficult to regard the exclusion as discrimination, absent special circumstances. If the union breaches its procedural duty and discriminates without a reasonable ground, it commits a tort infringing the procedural rights of the minority union. Absent special circumstances, it is then liable to pay consolation money even if no pecuniary damage occurred.

Practical checklist

First, may a teachers' union that retains dismissed teachers as members be notified of non-recognition as a trade union without a statutory basis? Compare the union rules, the circumstances of the request for correction and the notice. Then check whether the notification qualifies as a constitutive administrative disposition and whether it breaches statutory reservation because it essentially restricts the three basic labour rights under the Constitution.

Second, is a principal contractor an employer obliged to respond to collective bargaining with a union of in-house subcontractor workers engaged in shipbuilding? Examine the employment contracts and the demand for collective bargaining for an express or implied employment contract relationship under the former Act. Then check whether the principal contractor controls and determines the "basic working conditions of the workers" in a substantial and specific manner.

Third, does a bargaining representative union breach its procedural duty of fair representation if it approves the 2014 tentative wage agreement while excluding a minority union? Examine the tentative agreement documents, the minutes and the notice records to see whether the union "appropriately provided the necessary information" on "basic and important matters" such as the tentative agreement. Then check, taking the whole process together, whether the scope of discretion was exceeded.

Glossary

The order in which the Supreme Court examined the basis for a notification of non-recognition as a trade union (2016Du32992): The Supreme Court treats the notification not as a confirmation that the union is already unrecognised but as a constitutive disposition that strips the union of its status only through the notification. Such a notification leads to a prohibition on using the name of a trade union and to the loss of bargaining status. It therefore essentially restricts the three basic labour rights guaranteed by the Constitution. A notification addressed to a teachers' union goes beyond depriving it of its legal status and may deny its very existence, so it requires a clear statutory basis. The Trade Union and Labor Relations Adjustment Act itself provides for the return of a report of establishment, yet it contains no provision on notification to a trade union already in operation and no provision delegating that matter. Citing the legislative history in which the legislature, on reflection, abolished the dissolution order, the Court declares the enforcement decree provision at issue void. The factors for decision include "the importance of the interests or values concerned" and "the degree and manner of the regulation or infringement".

The scope of the concept of employer that determines whether a principal contractor is a counterparty to collective bargaining (2018Da296229): The latter sentence added to Article 2 subparagraph 2 by Act No. 21045 on 9 September 2025 takes effect from 10 March 2026 and has no transitional provision. Article 2 of the former Trade Union and Labor Relations Adjustment Act therefore applies to the bargaining demand made in 2016. The Court maintains the existing principle that the employer bearing the duty to bargain collectively is a person that has an express or implied employment contract relationship with the workers, under which, in a relationship of subordination in employment, it directs and supervises them, receives their labour and pays them wages. Control and interference are factual acts capable of infringing the three basic labour rights, which is why the concept of employer has been read broadly in that context. Collective bargaining, however, presupposes the improvement of a contractual relationship, so caution is needed before extending it to an affirmative duty to bargain. Because Article 90 of the Trade Union and Labor Relations Adjustment Act imposes imprisonment for not more than two years or a fine not exceeding KRW 20 million, the principle of legality in criminal law (nullum crimen sine lege) requires strict interpretation, and the legislature's decision to amend the law must be respected. Because the judicial function aims at the remedy of rights in concrete cases, the Court cannot declare abstract legal principles unrelated to the concrete case. The purport of the amended Act may be examined in the cases to which it applies in future. The factors for decision include "a person in a relationship of subordination in employment" and "an express or implied employment contract relationship".

The scope of the bargaining representative union's procedural duty of fair representation in the procedure for unifying the bargaining channel (2019Da262582): The Supreme Court holds that the duty of fair representation, which protects minority unions that lose their independent right to bargain, extends not only to the content of the collective agreement but also to the course of collective bargaining, and that it requires the provision of necessary information and the gathering of opinions. Given the dynamic nature of bargaining and the representative's discretion, however, not every omission of procedure at every stage amounts to a breach. Taking the whole process together, a breach may be found where the procedures concerning basic and important matters were not sufficiently followed and the scope of discretion was thereby exceeded. The Court holds that a breach of procedure cannot be found solely because minority union members were not allowed to take part on equal terms in a vote of the general meeting of members or of the council of delegates on the tentative agreement. The representative has an independent power to conclude the collective agreement, the vote is an internal procedure, and no provision governs a coordinating procedure for such a vote. Taken together, these points make it difficult to regard the exclusion as discrimination, absent special circumstances. If the union breaches its procedural duty and discriminates without a reasonable ground, it commits a tort infringing the procedural rights of the minority union. Absent special circumstances, it is then liable to pay consolation money even if no pecuniary damage occurred. The factors for decision include "the entire course of collective bargaining" and "basic and important matters".

Sources and limitations

This brief is based solely on two sources. The first is the original texts, published on the National Law Information Center, of Article 2 subparagraphs 2 and 4, Article 29, Article 29-2, Article 29-4 and Article 81 of the Trade Union and Labor Relations Adjustment Act, and of Article 33(1), Article 37(2) and Article 75 of the Constitution of the Republic of Korea. The second is the texts of Supreme Court Judgment 2016Du32992 rendered 3 September 2020, Supreme Court Judgment 2018Da296229 rendered 21 May 2026 and Supreme Court Judgment 2019Da262582 rendered 29 October 2020.

This is academic research material setting out general legal principles and standards for reviewing the record. It is neither legal advice on any individual case nor an opinion for submission to a court.

Points left open

2016Du32992: Where a statute does not itself provide for an adverse notification and only an enforcement decree does so, how far can review under fundamental rights be deferred?

2018Da296229: With whom can working conditions that fall within the principal contractor's influence be addressed through bargaining?

2019Da262582: Where information was provided and opinions were gathered only in part, at what point does this become discrimination exceeding the scope of discretion?

When to reconsider

2016Du32992: To be revisited, by reference to the new statute, if the National Assembly itself prescribes by statute the requirements and procedure for a notification of non-recognition as a trade union.

2018Da296229: To be revisited if the meaning of substantial control and determination becomes clear in a concrete case to which the amended Trade Union and Labor Relations Adjustment Act applies.

2019Da262582: To be revisited if the scope of discretion is disputed on the basis of the record of information provided throughout the process and the significance of the tentative agreement.

Statutes referred to

• 노동조합 및 노동관계조정법 제2조 제2호·제4호, 제29조, 제29조의2, 제29조의4, 제81조
• 대한민국헌법 제33조 제1항, 제37조 제2항, 제75조

Decisions referred to

• 대법원 2020. 9. 3. 선고 2016두32992 전원합의체 판결 · Decision ledger
• 대법원 2026. 5. 21. 선고 2018다296229 전원합의체 판결 · Decision ledger
• 대법원 2020. 10. 29. 선고 2019다262582 판결 · Decision ledger

Verification status

The cited provisions (Article 2 subparagraphs 2 and 4, Article 29, Article 29-2, Article 29-4 and Article 81 of the Trade Union and Labor Relations Adjustment Act, and Article 33(1), Article 37(2) and Article 75 of the Constitution of the Republic of Korea) and the judgments covered (Supreme Court Judgment 2016Du32992 rendered 3 September 2020, Supreme Court Judgment 2018Da296229 rendered 21 May 2026, and Supreme Court Judgment 2019Da262582 rendered 29 October 2020) were checked as of 15 October 2026 against the current statutes published on the National Law Information Center and the original texts of the Supreme Court judgments. This brief cites only the three judgments listed among the judgments covered.