According to the Constitution of Korea, “Workers shall have the right to independent association, collective bargaining, and collective action.” However, the courts have ruled that the rights to organize a trade union, collective bargaining and collective action can be exercised solely within a framework of an employment relationship. Based on these precedents, the basic labour rights of independent workers are not recognized and exercising these collective rights in relation to user employers or main contractors is not allowed.
However, by virtue of the principles of freedom of association, all workers, with the sole exception of members of the armed forces and police, should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship. Freedom of association and the right to collectively bargain should be ensured, regardless of the form of employment relationship, as fundamental principles and rights at work. This is reaffirmed in the international labour standards including the Employment Relationship Recommendation (No. 198, 2006).
Even if considering the difficulties of establishing whether or not an employment relationship exists, the scope of the rights to organize a trade union and to collective bargaining should not be determined on the premise of an employment relationship. On the contrary, collective bargaining and collective agreements in this area may be helpful for finding solutions to questions relating to the scope of the employment relationship.
For years, Korean trade unions and precariously employed workers have struggled for basic labour rights and a few of them collectively bargained or achieved a collective agreement. However, these efforts have been confronted with suppression caused by biased interpretation and a biased application of law. Employers usually refuse collective bargaining and suppress trade union activities on the pretext of decisions by public authorities.
The Korean Confederation of Trade Unions (KCTU), with various social movement organizations, has been demanding legislation to ensure rights for precariously employed workers since 2000. The existing labour laws are inadequate to protect workers in the changing labour market and changing organization of work. Especially, since definitions of “employee” and “employer” in labour laws are based on the traditional regular employment relationship, precarious types of work such as triangular employment workers and independent workers are left outside the scope of labour laws. This article proposes the legislation that adjusts the terms ‘employee’ and ‘employer’ in labour laws to reflect changes in the world of work.