Vague definitions of employer status under revised act are fueling conflicts

A member of a subcontractor union, who had been demanding collective bargaining with the main contractor, died in an accident during a related strike.

On April 20, outside a CU logistics center in Jinju, South Gyeongsang Province, unionized truck drivers affiliated with the Korean Confederation of Trade Unions were attempting to block a nonunion cargo truck when one was run over and killed. Two others were injured.

Since the revised Trade Union and Labor Relations Adjustment Act, or “Yellow Envelope Act,” came into force on March 10, confusion at labor sites has spread, culminating in this, the first fatal incident.

The truck drivers are calling on BGF Retail, the operator of the CU convenience store chain, to acknowledge its status as their employer under the act as it directs loading and unloading operations at logistics centers and therefore must engage in collective bargaining to improve working conditions.

The workers have contracts with transport companies, not with CU or its logistics centers. Citing this, BGF Retail denies it is their employer and maintains it will not conduct collective bargaining unless authorities formally recognize that status. It has attempted to continue deliveries using substitute vehicles.

The truck drivers have been on an indefinite general strike since April 7, blockading four logistics centers nationwide, and since Friday have also obstructed access to the factory of BGF Food, a BGF Retail affiliate in Jincheon, North Chungcheong Province.

On the day of the accident, police were deployed to ensure the road in front of the logistics center remained clear. According to police, the incident occurred when union members entered the path of a replacement truck.

Above all, it was wrong for the truck drivers to stage a blockade — an act of force — without going through the formal process of seeking a ruling from the regional labor relations commission on employer status. This is akin to an illegal workplace occupation and is a breach of the law — punishable as obstruction of business — that warrants criticism.

At the heart of the incident is a dispute over whether the primary contractor should be recognized as an employer. The Yellow Envelope Act defines as an employer not only a party to a contract, but also any person who, even if not a contracting party, is in a position to "substantially and concretely" control and determine working conditions.

However, the concept of “substantial and concrete control and determination” is not clear enough to avoid confusion.

Since the act took effect, confusion has become evident in the data. Within one month of its implementation, about 147,000 subcontractor union members sought collective bargaining with some 370 primary contractors.

Companies are confused by subcontractor unions’ calls for the “real employer” to step forward. Large companies now face a situation in which they must engage in negotiations with multiple unions year-round.

Criteria for determining employer status have also been inconsistent. On April 10, the Jeonnam (South Jeolla Province) Regional Labor Relations Commission dismissed an application filed by the Korea Tower Crane Operators’ Trade Union seeking to have a construction company — their main contractor — recognized as their employer for the purposes of collective bargaining. On April 20, however, the Seoul Regional Labor Relations Commission accepted the same union’s application for collective bargaining with another construction company as the main contractor.

Last week, Prime Minister Kim Min-seok said at the National Assembly that the scope of employer status for the government and public sector needs to be limited — a point that applies equally to private companies.

This incident shows that the revised law, rather than resolving conflicts, is fueling them. Before it is too late, the law must be comprehensively supplemented and revised.


khnews@heraldcorp.com