Occupation of Workplace by Trade Union

In most advanced counties, occupation of a workplace by a trade union is regarded as an illegal industrial action under both the labor law and rulings of the court.  One common method of industrial action is the ‘work-out strike’, which is conducted outside the workplace itself.  Legal industrial actions such as picketing, boycotting, etc. should neither ignore others’ rights nor obstruct the employer’s business. Since trade unions in Korea often use sit-down strikes and occupy company premises, illegal actions such as the obstruction of business, vandalism and violence are common in Korea’s labor disputes.

While the law grants the right to strike, a trade union is not allowed to occupy essential facilities such as the production plant, in order to allow the employers to continue the operation of their business and to allow the workers who do not join the strike or do not belong to the union, to exercise their right to work.

However, the court has ruled that partial and limited occupation by a trade union is justifiable if the trade union does not occupy the workplace entirely and exclusively and if business is not obstructed.  In fact though, trade unions are misinterpreting the rulings of the court. They frequently occupy a company’s premises for a long period of time, which has resulted in enormous loss for employers.  In 2006, about 3,000 members of the Pohang Construction Workers’ Union occupied the local headquarters of POSCO for 9 days, even though they were not even employees of POSCO.  Due to this occupation, construction was stalled and POSCO lost more than 200 billion won and its credibility with many suppliers suffered.  In 2009, the trade union of Ssangyong Motors occupied the factory for 77 days in protest of layoffs.  Due to this prolonged sit-down strike which caused a huge disruption to production and exports, many suppliers of parts and components who were highly dependent upon Ssangyoung Motors, had to go into bankruptcy, court receivership or shut down.

In principle, the ILO and major advanced countries do not allow trade unions to occupy company premises. The ILO says that legislation to restrict any workplace occupation is not against international labor standards.  When a trade union occupies a workplace, the employer has the right to request help from the police in order to access his/her premises.  In the US, sit-down strikes and workplace occupation by unions are not protected under the law. If these types of industrial action occur, the court proceeds with firm countermeasures such as a compulsory stop-strike order; if the union does not stop their illegal strike, then the court issues an arrest warrant for the participating union members for contempt. In Germany, workplace occupation is regarded as an illegal strike which infringes on the employer’s property rights and the freedom to do business. Regardless of the reason for the occupation, the employer can apply for a court injunction against the union and also, the police and/or security guards can use force to put an end to the illegal workplace occupation.

Trade unions use the strategy of occupation of company premises in order to maximize the effect of their industrial actions. By occupying these facilities, the union can prevent the employer from mobilizing substitute workers and also prevent union members from by-passing the union. At one time, they would not only occupy the workplace but would destroy important production lines and other facilities. They also commit other illegal actions such as obstructing entrance of management personnel and committing acts of violence. A case in point is that of Yoosung Enterprise Co. Ltd., which was occupied by a trade union affiliated with the Korean Metal Workers’ Union (KMWU). This union occupied the production plant and stopped all production. When the company tried to restart its production, the union blocked by turning off the power switch and inserting an iron bar into the plant’s production machine. During this conflict between the trade union and the company, 13 security guards were injured and 7 vehicles damaged from steel pipes wielded by union members.

What is worse, undemocratic and coercive practices occur frequently within trade unions regarding the occupation of workplace. For the union, a sit-down strike could be a very effective strategy in such an action where a handful of union members can make an impression of a full-scale strike. For this reason, union leaders recklessly conduct open ballots on whether to strike without any ethics or responsibility and sometimes manipulate the result of the vote. They also force union members to participate in the sit-down strikes. Union leaders reportedly sent threatening text messages to union members and visited the houses of those members who went back to work, in an effort to keep them out of the workplace.

Employers should be well prepared with pre-planned measures in the event of unions occupying the company’s premises. If the union exercises a sit-down action, employers should file a criminal suit against that union. Employers can also opt to declare a lock-out or hire additional security guards to counteract the union’s illegal action.

First, employers need to take sufficient preventive measures. When a sit-down strike occurs, severe damage is usually unavoidable and any compensation claim for damage caused by the strike is limited. Thus, when an employer learns that the union plans to occupy the plant, he/she should request help from relevant government agencies in order to take preventive steps to protect the company’s property. Also, as the increasing intervention of umbrella unions and politicians contributes to more prolonged and violent strikes, employers need to file injunctions requesting that third parties be banned from visiting the workplace.

Second, employers should take stern and firm actions, including criminal charges, for any illegal industrial actions such as malicious mischief, obstruction of business, and noncompliance with orders to vacate the premises. Through adherence to the law and principles, an employer can prevent prolonged strikes and encourage union members to disperse.

Third, employers can declare a lock-out when coping with a prolonged sit-down by a union. However, the courts have ruled that only defensive and ex post facto lock-outs are justifiable and have thus far prohibited aggressive and pre-emptive lock-outs. Recently, the legitimacy of lock-outs has emerged as an issue between labor and management. Therefore, an employer has to be very careful when imposing a lock-out on a workplace in order to avoid disputes over the legitimacy of the lock-out itself.

Fourth, employers may consider the hiring of additional security guards in addressing union sit-down strikes. If the union continues to illegally occupy company premises even after all previously-mentioned measures have been taken, an employer has to find other options, which may involve the utilization of existing employees or the hiring of additional security guards.

Lastly, when a company cannot settle illegal industrial actions by itself, entering into a contract with a security firm could be another solution. Recently, however, intervention in strikes by private security firms has become a social issue.

By law, an employer is prohibited from ordering a private security firm to use force or any violent means beyond the normal role of a security guard. Because offenders will face up to 3 years in prison and a maximum fine of 30 million won, employers should utilize a private security firm only if all other options have failed.

Due to union policies to use an illegal action, the government’s passive and inactive responses, and pro-labor laws which widely recognize the occupation of workplaces by unions, trade unions now prefer to use sit-down strikes on company premises as a strategy in industrial action. However, in order to improve the current practice of industrial actions in Korea, employers and workers need to observe the law and principles, while industrial actions conducted on workplace premises should be banned by law.