After Company A’s trade union failed to secure their demands for increased wages through collective bargaining, the union began declaring, through banners and megaphones in front of the workplace, that Company A was “an evil enterprise,” and was “oppressing its trade union”.
The union also illegally occupied checkout counters and distributed flyers slandering the company to the customers. Mr. Kim, the owner of Company A, is looking for ways to quickly handle the situation since the trade union is inflicting damage to the company’s image and rapidly decreasing sales.
What are the possible countermeasures to union actions during disputes?
Labor disputes occur in various forms for various reasons. It is not unusual to see illegal actions during those disputes. When these illegal actions occur, employers tend to use their own resources (such as physical force) to stop the actions. This is called “self-help” in legal terms, and it can be quite difficult to justify actions taken without resorting to legal writ or a higher authority, especially if physical conflict occurs as a result. Employers can also press civil or criminal charges, but the legal procedures are time-consuming. Preliminary injunctions can be considered, as they immediately and legally restrain the trade union from carrying out illegal actions.
What is a preliminary injunction and how different from a lawsuit?
Preliminary injunctions are issued by a court prior to a final determination of the merits of a legal case, to prevent and remove current hazards. Rightful persons often receive damage while lawsuits are ongoing, so the preliminary injunction can be issued to restrain a party from carrying out its current course of conduct at the earliest convenience if the situation so warrants. The effect of preliminary injunctions is much more immediate than lawsuits.
Even in industrial actions such as strikes, courts can order suspension or continuation of a course of conduct if such incidents fulfill the necessary conditions. Preliminary injunctions in industrial relations are known as “labor injunctions”. Herein, cases will be discussed where injunctions were used during labor disputes, and the types of injunctions.
Can an employer apply for an injunction prohibiting disputes?
If a trade union takes political action such as striking against a free trade agreement or a dispatch of troops, the company cannot take any action because the reason for the strike is not connected to the company. For illegal political protests, injunctions prohibiting strikes can be issued.
Mr. Kim, in the Company A example above, would like to file an application for an injunction prohibiting strikes. However, such an application would not be approved since only illegal disputes can be prohibited. The Court considers prohibiting certain illegal activities (such as the illegal occupation of Company A’s checkout counters) is enough for employers if the purpose of the dispute is valid, such as demands for a wage increase.
What are the types of preliminary injunctions available to employers?
(1) Injunction against defamation
Employers can apply for an injunction against defamation if a trade union slanders the company or management through banners, picketing, or with megaphones. Immediacy is very important for such injunctions as any delays can render the injunction ineffective in preventing the defamation. Although a company applies for an injunction against defamation and the court approves the application, company image can be difficult to restore once rumors have spread on the internet and negative public opinion is formed.
(2) Injunction against interference with business
Interference with business is often possible due to the illegal actions of trade unions. As already discussed, employers can apply for injunctions against interference with business if union members occupy checkout counters and hinder cashiers from doing their work. In this case, it is recommended to give the court as much detail as possible about the current happening to enable them to easily recognize that business is being interfered with.
For example, an employer should specifically state that “trade union members are directly hindering the export of company products and the bringing in of raw materials for production,” or “trade union members are barring management from maintaining factory machinery, and are occupying or damaging machinery” when applying for the injunction.
(3) Injunction against third party access to the workplace
When labor disputes occur, persons from third parties such as upper-level labor organizations, often come to the workplace and interfere with management directors coming into the workplace, or lead illegal actions. Employers can apply for an injunction barring third party access to the workplace. Injunctions can also be applied to evict persons from illegal occupation of the workplace or prohibit access to union members.
There are many cases related to dismissed workers accessing the workplace. If these dismissed persons participate in union activities or interfere with other workers doing their jobs, employers can seek an injunction barring these dismissed workers from the workplace.
(4) Injunction against union activity
At times, workers in HRM or accounting department, or with inspection duties join trade unions and in some cases participate in strikes. Labor law in Korea defines workers carrying out such duties with a certain level of authority and responsibility as those “who act in their employer’s interest.” A trade union with such workers cannot be regarded as legal. Employers can apply for an injunction against union activities of such workers which not only prevents those workers from participating in strikes but also from joining a union or carrying out union activities.
Efforts to prevent damage and find a peaceful solution should come first
The number of cases where injunctions have been used to solve labor disputes is increasing. As the labor environment changes and new types of disputes appear, injunctions will play a more important role than in the past.
In many cases, labor injunctions may take 3 to 4 weeks (including the questioning process) before being issued, so they are limited as an immediate response against ongoing illegal protests. Nevertheless, notifying the counterparty that an application for injunction and summons has been made, does carry psychological weight for persons carrying out illegal actions. Sometimes illegal actions have ceased before the injunction is issued, so applying for them in the right situations can be quite useful.
If illegal actions do not cease despite the injunction, employers will have a good chance of winning damage claims. However, seeking a peaceful solution to minimize damage should be the first priority since application for an injunction may evoke a strong reaction from trade unions.