Improving the Duties of Fair Representation as a Measure to Guarantee the Collective Bargaining Rights of Minority Union Members

Recently, the Constitutional Court ruled that the simplification of bargaining windows system is constitutional. However, unlike previous decisions, this ruling included dissenting opinions from four out of the nine justices. The dissenting justices questioned the effectiveness of the current duties of fair representation and reached a different conclusion from the majority. Specifically, they emphasized that the current framework fails to adequately guarantee the participation rights of minority unions. Under Korea’s simplification of bargaining windows system, where the representative bargaining union is not elected through a vote by all union members, the duties of fair representation carry significant weight.They serve as a substitute for the delegated consent of union members and the realization of union democracy. These duties also justify the binding effect of collective agreements made between the representative bargaining union and the employer on other unions that participated in the bargaining process. From this perspective, procedural fairness in representation is especially important. Therefore, if a representative bargaining union is allowed to exercise exclusive bargaining rights solely on the basis of holding a majority—without any formal election or selection process—it is more appropriate to impose stricter obligations to uphold procedural duties of fair representation than in cases where there is explicit delegation. Accordingly, there is a need to legally define the procedural duties of fair representation that the representative bargaining union must at least comply with. These include: ① procedures for collecting and consolidating opinions on bargaining issues before negotiations begin, ② sharing key issues and the time and place of bargaining meetings during the negotiation process, ③ guaranteeing the participation rights of minority unions in votes on tentative agreements, and ④ providing the original copies of the collective agreement and any supplementary agreements immediately after the agreement is concluded.