The "Essential Minimum Services" system was established by the agreement of Tripartite - workers, employers, and the government in the need for reflective consideration of the "ex officio arbitration" system that, when industrial disputes arose from e...
The "Essential Minimum Services" system was established by the agreement of Tripartite - workers, employers, and the government in the need for reflective consideration of the "ex officio arbitration" system that, when industrial disputes arose from essential public services, allowed a state to previously or fully restrict labour union's right of collective action and to force to terminate those disputes.
The Essential Minimum Services system has major three differences from the ex officio arbitration system. First, air traffic service and blood service are included in the essential public services. Second, labour unions of the essential public services are in principal permitted to act collectively, but workers in areas of the essential minimum services have to work normally on a strike. The scope of the essential services to be maintained on a strike would be concluded by an agreement between workers and employers ; otherwise those services would be decided by Labour Relations Commission. Anyone who violates decisions by the Labour Relations Commission is subject to civil and criminal liabilities and disciplinary punishment. Third, external employment is permitted to be mobilized up to half of the number of workers who are on strike.
As mentioned above, the scope and level of essential services to be maintained by unions of the essential public services areas on a strike are concluded by an agreement between workers and employers. However, there is an issue regarding whether or not to see it collective agreement. This study suggests it is reasonable to regard the agreement within industrial action related to collective agreement. In this respect, union members who are appointed by the labour union are obliged to supply labours in a labour dispute, but such obligation comes from the agreement itself. Industrial actions should be permitted in principal when it comes to make an agreement. Also, it is proper to see that employers cannot apply decisions by the Labour Relations Commission one-sidely without enough negotiation between workers and employers. It seems to coincide with the intent of the essential minimum services system in establishing the anatomy between workers and employers.
Another issue is the essential minimum services system permits alternative employment in a labour dispute. As for general services, union members taking actions in a labour dispute are prohibited to be replaced by external manpower. In contrast, within the essential minimum services system, when actions are taken in a labour dispute in essential public services areas, alternative employment is permitted in the name of protection of public interests. However, as the essential minimum services system by itself is to protect public interests to some extent by maintaining essential services, it faces the inevitable criticism that permitting alternative employment to protect public interests is, in fact, to protect employers' businesses. In Korea, labour's unions are mainly composed of a type of company unions. Furthermore, only about 10 per cent of the whole workers organize the union in general. In these circumstances, permitting alternative employment is highly likely to make the union's right of strike little more than a name. Conclusively, the regulation of permitting alternative employment should be deleted from the essential minimum services system.
After the essential minimum services system was introduced, Busan Subway and Korea Railway among cases of essential public services followed decisions of the Labour Relations Commission in labour disputes. Though they revealed several problems on the process, it is evaluated that each case kept its balance between public interests and the right of strike overall.
Taking all considerations of problems arising in interpreting the essential minimum services system and lessons from cases of industrial actions, the essential minimum services system should develop into a system that makes it possible to seek both public interests and the right of strike in balance and to solve industrial disputes autonomously.