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Study on the Requisition of Relief on the Unfair Labor Practice

  • DONG-A LAW REVIEW
  • 2014, (64), pp.63-86
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Kim Hee Sung 1

1강원대학교

Accredited

ABSTRACT

This study will review the standing to apply for the remedies with regard to the unfair labor practices. Article 82 paragraph 1 of the Trade Union and Labor Relations Adjustment Act states an employee or a trade union can apply for the remedy to the Labor Relations Commission when one’s right has been infringed by unfair labor practices of the employer. Regarding the detrimental treatment, the disputing employee oneself can request remedy as a principle. The issue is whether an individual union member possess the right to request for the remedy when the rejection in the collective bargaining take place. Further, there are controversies of whether the right of remedy request which applies to union executives for the unfair labor practices due to the intervention on governance, should be given to general employees. That is whether the employer’s intervention in governance justify as a requisite for the criterion for an individual employee to request for remedy to Labor Relation Commission. To note, the Supreme Court of Japan in Kyoto jinowi case (Kyoto City Transit Authority) confirmed the right to request of an individual by rejecting the decision of the first and the second courts of instances of not to admit the right to request of an individual member in person of an union unless there is some unusual circumstances such as to recover the independence of an company-dominated union. And the foundation for such is 「the right to organize and the right of collective action of the employee」. The theoretical analysis of such intention of the judgment lead us to the notion that the ultimate purpose of the unfair labor practice system is to support the right of each employee to organize and to collectively act, and thus each individual employee (union members) should be able to request for the remedy (Each employee’s right to appeal must not be disturbed by the intention of the trade union). However the intention of the judgment bear the theoretic issues by pulling the direct conclusion out from such to put the purpose of unfair labor practice system to protect the right of individual employee to organize and to collectively act. Unfair labor practice system does not simply protect the right of an employee personal. These diversity and complexity of the system of such labor practice forms an overlapping arrangements among the right of each employee and trade union. As such how to determine finely of mediating the interest of each employees and the trade union according the each specific type or issue, therefore reflecting the conglutination of both the interest of the employee and the trade union, and conducting democratic procedure of by the trade union shall be the further task to be reviewed.

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