I studied a duty of fair representation in Japan in this article. I had already published a duty of fair representation in U.S. After these two articles, I finally am going to study a duty of fair representation in Korea. Accordingly it could be said that this paper is a one of the
series of comparative studies of the duty.
There is not a duty of fair representation like U.S. in Japan. It was possible to establish the duty in U.S. through only a national labor
policy or case law, because unconstitutional issues never occurred. The Japanese Constitution Article 28 secures, however, employee"s labor fundamental rights, that is, right to organize, right to a collective bargaining, and right to concerted activities. According to the
interpretation of the article above, an employer should equally secure or treat unions each other under plural unions within a bargaining
unit. Otherwise he or she can be charged with unfair labor practices by the Labor Union Act Sec.7. Of course though someone takes an
opinion that an exclusive collective bargaining system is not unconstitutional, absolute majority opinions interpret the system as
unconstitutional.
To point out here characteristics of the duty in Japan is as follows:
First, the duty in Japan only occurs between an union and its members. So an union does not take the duty in relations with nonunion members or another union"s members.
Second, the suggestions of the duty in Japan are also not especially superior to traditional legal theories of resolving the problems of the disadvantageous modification of collective agreement. In case of the disadvantageous modification of collective agreement, those who take the traditional legal theories have been resolved the case through a principle of a private organization and a limitation of the autonomy of the collective agreement. Those who suggest the duty emphasize collective bargaining procedures within an union and(or) contents of the collective agreement as standards of resolving the disadvantageous modification problem. Furthermore those who suggest the duty also treat an union as a public organization or semi-public organization, because the union has large authorities in determinating labor standards etc. Those who take the traditional legal theories, however, treat an union as a private organization, and even have been suggested more concrete standards than those who suggest the duty in resolving the case.
Finally, it is, however, notable those who suggest the duty perform also a positive role in promoting union democracy.