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I tried to analyze schemes of the parties, employee and employer or its association each other, to a collective bargaining in this article. I especially focused on the side of employees' association.
The Section 33 of the Korea Constitution secures that the employees have right to organize, to a collective bargaining, and to concerted activities for promoting their labor conditions. At the same time, the Constitution provides also a clause of a freedom of association in the Section 21. The Section 30 of the Trade Union and Labor Relations Adjustment Act(TULRAA) requires that a trade union and an employer or employees' association shall bargain, in good faith and sincerity, with each other and make a collective agreement. The Section 29 of the TULRAA provides that the representative of a union has right to bargain and to make collective agreements for the union and its members.
An union and an employer or its association are respectively able to entrust their authority to bargain or to make a collective agreement to a third party. The Section 81 of the TULRAA prohibits, furthermore, some kinds of conduct by an employer as unfair labor practices and punishes those practices with a criminal penality. But it must be noted that there is no provision of a employee's unfair labor practice in the TULRAA. All of these provisions are very similar to provisions of the Constitution and the Labor Union Act in Japan.
Under these statutory circumstances, I chose a case of Tokyo District Labor Relations Commission v. Asahi Diamond Co. (1985) in Japan. Many important problems of Labor Law were involved in the case, i.e. a collective bargaining or the parties to the bargaining under plural unions within a company, a collective agreement clause that a employer should only bargain with one union, a clause that prohibits entrusting authority concerning his collective bargaining or concluding a collective agreement to a third party, and an employer's unfair labor practice etc.
An employer, in this case, refused to bargain with a group of representatives selected from two unions within a company. The employer refused to bargain on the grounds that the group did not satisfy general requirements to be a party to bargain. That is to say, the group did not have an united opinion and the authority to control members of two unions however.
The Supreme Court of Japan, finally, upheld Tokyo District Court and the Tokyo Court of Appeals finding that an employer's refusal to bargain did not violate the Section 7 of employer's unfair labor practices of the Trade Union Act(TUA) in Japan. According to my opinion, the union should have the initiative to petition a collective bargaining with employer or its association under statutory circumstances in Korea and in Japan. In determining whether an employer violates the Section 7 of the TUA in Japan or the Section 81 of the TULRAA in Korea, it is needed to take into account of an unfair labor practice system that prohibits only some kinds of conduct by employer(especially with a criminal penality in Korea). Employees have full rights, though these rights will be conducted through their union, to choose any kinds of representative by their own choosing for a collective bargaining, and to petition the bargaining with their employer, but the employer or its association has no leverage to refuse the petition by the union. It should be respected so much, in analyzing this case, that the right to a collective bargaining does not include entering into a collective agreement also. It will be within a full freedom of employer to conclude the agreement or not.
With respect to this idea, I tried to analyze the Court's opinions in Asahi Diamond. I concluded that the employer violated the Section 7 of the TUA in Japan because of his refusal to a collective bargaining.
In addition, there are generally some questions of violation with the Section 7 of the TUA in Japan or the Section 81 of the TULRAA when the employer offers any particular conditions before or on the table of the collective bargaining with union or his representative. For example, the employer's practices, that he adheres to bargain with only company union or he tries to include a clause of increasing productivity of labor in the collective agreement, are problematic in this sense.