Lockout-English Labor Law-0604

Lockout 1. Concept Lockout is a situation in which the employer refuses to receive employees' service as a means to defy their industrial actions and prevent their entry.. The lockout sustains the power balance between labor and management by allowing the employer to counteract against employees' industrial actions. 2. Requirement (1) Opposing lockout Lockout refers to the employer's refusal to receive collective labor service . The employer usually implements an opposing or defensive lockout after inception of an industrial action. Therefore, the employer may only report a lockout after the labor union takes a legitimate industrial action following a cooling period (mediation period). (Jun. 24,'98, Nosa 32281-1703) (2) Defensive lockout A passive and defensive lockout is highly suggested if a counteraction deems unavoidable since an aggressive and offensive lockout is unjustifiable. In principle, the law prohibits a preemptive lockout or any measure taken that exceeds a considerable degree in scope and method of the industrial action.(Feb. 9, '95, Daejeon regional court 93 Kahap 566) 3. Method (1) Practical measures A lockout is notlegitimate if it is only notified to the labor union, A practical measure must be taken before refusing employee's work. (2) Applicable to any industrial action A lockout can be applied to any industrial action. It may be implemented upon slowdown strikes or work-to-rule while employees are working. (3) Partial lockout and general lockout Industrial actions are actions or counteractions, such as strikes, slowdown strikes, lockouts, and other measures taken by labor relations to achieve their goals. As the labor union is allowed to initiate a general or partial strike, the employer may also choose to execute a general or partial lockout as a countermeasure. (Aug. 31, '98, Hyupruok 68140-327) 4. Effect (1) Exempt from obligation of receiving labor service and rendering wage An employer has the rights to refuse to receive employees' labor service during a lockout. In addition, the employer is not obliged to render wage to employees who do not provide labor service due to a lockout, since wages mean remuneration for work. This exemption extends not only to union members subject to lockout, but also to all other non-union employees. However, if an employee who is not subject to the lockout provides regular work for the company, contractual wage shall be paid for the service provided. (Nov. 21, '94, Nosa 68107-338) (2) Holiday and leave As an employer can legitimately refuse to receive labor service of the employees subject to the lockout, the statutory holiday and leave according to the Labor Standards Act does not occur. (Nov. 10, '94, Kungi 68040-1769) (3) Off-limit to employees 1) Scope of off-limits A lockout is a refusal to accept labor service in which the employer can prevent employees from entering the workplace through the means of closing the company entrance gates or withdrawing employees from production facilities and precluding their labor service. Accordingly, employees' noncompliance to leave the workplace during a legitimate lockout may be subjected to criminal charges as noncompliance of a deportation order. Provided that, a lockout shall be limited to production facilities or office facilities as it merely purports to prohibit employees from production and service. Nevertheless, the employer may allow union members entry to certain facilities necessary for union activities or welfare under rational scope, such as union offices, dormitory, canteen, and other facilities not related to production or work. (Oct. 30, '98, Hyupeop 68140-409) 2) Occupancy and lockout of workplace Despite the employees' legitimate occupancy of the workplace before the lockout, the employer is given full ownership of the workplace and may request leave of the working facilities during a lockout. Sustained occupancy at this time is illegal and will be subjected to law for noncompliance of a deportation order. (Aug. 13, '91, Supreme court 91do 1324) (4) Available partial production An employer does not have to stop production completely even during a lockout and may continue to receive service from employees not participating in strikes. (Sep. 9, '97, Hypruop 68140-366) (5) Effect of illegal lockout (1) Employees' entry to workplace If the employer's lockout is not legitimate, it is not a crime for the employee to enter the workplace where he has usually been permitted to enter, unless there is a special reason. (Sep. 24, '02, Supreme Court 2002do 2243) 2) Wage payment during a lockout In case where a lockout serves as a measureagainst the union's industrial actions (strikes or slowdown strikes), the employer is exempt from the obligation to pay wages. However, in case of a preemptive and offensive lockout, the wages must be rendered (shutdown allowance). (Oct. 30, '69 KiJun 1455.9-11349) 5. Report An employer shall notify intent of a lockout, in advance, to the Administrative Office and the Labor Relations Commission. In case of a lockout taken without prior notice, the employer may be subjected to pay a fine up to 5 million won (Article 96 of the Union Act). Here, the notice of intent of a lockout is not a substantial requirement, but a procedural requirement demanded out of administrative necessity. Therefore, a non-reporting of the lockout does not necessarily affect the legitimacy of a lockout. 6. Cancellation The union's industrial action is the preliminary requirement of a lockout as it also is the conditional requirement to sustain a lockout. In case the union decides to return to work, there remains no reason for continuing the lockout. However, where the union's decision to return to work seems ingenuine and there exists a likeliness of ensuing industrial actions, the employer may justifiably prolong the lockout. (Oct. 30, '98, Hyupreop 68140-409)