Collective Bargaining Lawyer | What Both Sides Need to Know Before the Table

Collective Bargaining | Who Must Bargain With Whom

The duty to bargain in good faith runs both ways, but it only attaches once certain conditions are met. Both unions and employers frequently misjudge who is actually obligated to sit down at the table.

The Employer's Duty to Bargain

An employer must bargain in good faith with a union that represents its employees and may not refuse without justifiable grounds (노동조합 및 노동관계조정법 제30조 제2항). A refusal or unreasonable delay in bargaining without justifiable grounds can itself constitute an unfair labor practice (노동조합 및 노동관계조정법 제81조 제1항 제3호). What counts as 'justifiable grounds' is heavily fact-dependent — a request submitted with vague scope or to the wrong bargaining unit is a common employer defense.

Scope of Mandatory Bargaining Subjects

Not everything a union wants to discuss is a mandatory subject of bargaining. Wages, working hours, and other working conditions are core subjects, while matters of pure managerial or business judgment (e.g., relocation of a plant, corporate restructuring) are generally treated as outside the duty to bargain unless they directly affect working conditions. Employers often argue a demand falls outside mandatory subjects; unions often argue the same demand has a direct working-condition impact — this characterization dispute drives many cases.

Union-Side: Establishing You Are the Proper Counterpart

A union seeking to bargain must first establish that it validly represents the employees in question, which becomes more complicated when multiple unions exist at one workplace. Newly organized unions sometimes face employer resistance premised on doubts about union legitimacy itself — documenting formation procedures and membership carefully protects against this.

Collective Bargaining | Recognizing and Proving Bad-Faith Bargaining

Both sides commonly accuse the other of 'not really bargaining.' The legal test does not require either side to agree to any particular term, only to negotiate sincerely toward the possibility of an agreement.

What Good Faith Does Not Require

Neither party is legally required to make concessions or to reach an agreement; the duty is procedural, not substantive. An employer that bargains extensively but ultimately rejects every union proposal has not necessarily failed the duty, which makes bad-faith claims harder to win than they first appear.

Common Indicators Courts and the Labor Relations Commission Look At

Repeated cancellation of scheduled sessions without cause, sending representatives without actual authority to negotiate, refusing to provide information reasonably necessary for bargaining, and unilaterally implementing changes to bargaining subjects before impasse are all factors weighed together, not any single decisive test. A pattern across multiple sessions is generally more persuasive than one isolated incident.

Employer-Side: Defending a Bargaining Position

Employers responding to a bad-faith allegation should be able to show a documented, consistent rationale for each rejected proposal and a record of counter-proposals, not just refusals. Simply having a firm final position is not misconduct, but an inability to explain the reasoning behind that position at the negotiating table weakens the employer's case before the Labor Relations Commission.

Collective Bargaining | Bargaining Windows When Multiple Unions Exist

Since the introduction of the bargaining window system, workplaces with more than one union generally must consolidate their bargaining representation, which creates its own layer of disputes separate from bargaining with the employer.

Formation of a Single Bargaining Representative

Where two or more unions exist at one workplace, they are, in principle, required to form a single bargaining representative before bargaining with the employer, determined through a defined window and, if unions cannot agree, by a majority-membership rule or joint delegation (노동조합 및 노동관계조정법 제29조의2). Minority unions frequently dispute how membership is counted or how the window period was calculated — procedural errors here can invalidate an entire bargaining round.

Separate Bargaining Units in Limited Circumstances

A minority union can apply to bargain separately from the consolidated unit in certain circumstances, most notably where the employer is found to have discriminated against it without reasonable grounds. Employers should be aware that treating a minority union differently in bargaining access, without a defensible business reason, can itself become the basis for a separate-unit order or an unfair labor practice claim.

Collective Bargaining | Remedies When Bargaining Breaks Down

When one side believes the other has crossed the line from hard bargaining into unlawful conduct, the available remedies differ depending on whether the complaint is about the refusal to bargain itself or about industrial action taken afterward.

Filing an Unfair Labor Practice Complaint

A party who believes the employer has refused to bargain without justifiable grounds may file a complaint with the Regional Labor Relations Commission, which can order remedial measures if the practice is found to constitute an unfair labor practice (노동조합 및 노동관계조정법 제82조, 제84조). Remedial orders typically require the employer to resume bargaining rather than dictate specific contract terms, since the Commission does not substitute its judgment for the substance of negotiations.

Moving to Industrial Action

A union cannot lawfully strike simply because bargaining has stalled; strikes generally require that the dispute first go through the mediation procedures set out under the Act, and industrial action taken outside that framework or before mediation concludes can itself expose the union to liability (노동조합 및 노동관계조정법 제45조). Employers evaluating whether a strike is lawful should check both the mediation timeline and whether the underlying demand was a proper mandatory bargaining subject.

Collective Bargaining | From Initial Bargaining Demand to Resolution

Collective Bargaining | How Fees Are Calculated

※ Costs vary depending on case complexity and specific circumstances; exact fees will be provided during consultation. No specific outcome is guaranteed.

Collective Bargaining | Self-Check Before You Call

Frequently Asked Questions

Official References

• Korea Law Information Center — https://www.law.go.kr
• Easy-to-Find Everyday Legal Information — https://easylaw.go.kr
• Korea Legal Aid Corporation — https://www.klac.or.kr
• Ministry of Employment and Labor — https://www.moel.go.kr