사업경영상 결정에 관한 ‘영향교섭’ 법리에 관한 연구

Article 2(5) of the Trade Union Act, as amended in 2025, expressly provides that managerial decisions are included within the scope of labor disputes where they affect working conditions. Strictly speaking, however, since the provision in question is a definitional clause concerning the concept of a “labor dispute”, it is difficult to regard the provision itself as constituting a positive-law basis for determining the subjects of collective bargaining. Nevertheless, considering that a labor dispute logically presupposes collective bargaining, it may be understood that the legislature, through the 2025 amendment, intended to encompass matters concerning “managerial decisions affecting working conditions” within the scope of collective bargaining. That said, the provision alone does not make it possible to clearly ascertain the interpretive criteria regarding the requirements for the establishment of a duty to bargain over managerial decisions affecting working conditions, the point at which such a duty arises, or the point at which it terminates. Accordingly, these issues require supplementation through interpretation. Against this background, this article, focusing on the development of case-law doctrines on “effects bargaining” in the United States and Japan, derives the following implications with respect to the interpretive issues that may arise under the 2025 amendment. First, it is necessary to draw a clear distinction between the managerial decision itself and its effects on working conditions. After clearly distinguishing the managerial decision itself from the changes in working conditions resulting from that decision, bargaining over the effects on working conditions should, as a general rule, be recognized as a mandatory subject of bargaining, whereas with respect to bargaining over the managerial decision itself, an interpretive approach should be sought that identifies an appropriate point of balance between managerial freedom and the protection of workers. Second, attention must be paid to the procedural nature of the duty of effects bargaining. The duty of effects bargaining should not be understood as obligating the employer to withdraw the managerial decision itself; rather, it should be understood as requiring the employer to provide prior notice, to engage in good-faith disclosure of information, and to discuss measures to mitigate the effects of the decision, thereby promoting a reasonable balance between the protection of workers and managerial efficiency. Third, it is necessary to concretize the criteria for determining the point at which the duty of effects bargaining arises. It would be difficult to conclude that the duty of effects bargaining arises at the stage of a mere internal review of a managerial decision. However, once the effects of such a managerial decision on working conditions become objectively foreseeable or have been sufficiently concretized, it is necessary to interpret the duty of effects bargaining as having arisen. Fourth, the criteria for determining a state of impasse must be further concretized. In cases where a substantive gap in positions remains unbridged leading to a deadlock despite the employer’s efforts to persuade the union by providing sufficient information and materials it would be theoretically consistent to allow the employer unilateral implementation within a certain scope. This is predicated on the existence of ‘separate legal controls’, such as the restrictions on dismissal under the Labor Standards Act, the doctrine of disadvantageous changes to employment rules, and the principles of good faith and the prohibition of abuse of rights under the Civil Act.