[Case of reporting the establishment of a labor union for foreign workers]

◇Is it possible for foreign workers who have not received the status of residence to engage in employment activities in accordance with the Immigration Control Act to establish or join a labor union? (Breaking)◇

According to the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the 'Trade Union Act'), a worker refers to 'a person who lives on wages, salaries and other equivalent income regardless of the type of job' (Article 2, Subparagraph 1). Such workers are free to organize or join trade unions (Article 5), and union members are not discriminated against based on race, gender, age, physical condition, type of employment, political party or status under any circumstances. No (Article 9).

On the other hand, according to the relevant regulations of the former Immigration Control Act (before it was amended by Law No. 10282 on May 14, 2010), when a foreigner seeks employment in the Republic of Korea, he or she must obtain a status of residence (hereinafter referred to as “employment qualifications'), and foreigners who find employment without employment qualifications are subject to deportation and punishment.

Taking a comprehensive look at the content, system, and purpose of each of the above regulations, a worker under the Trade Union Act refers to a person who provides work under a subordinate relationship with another person and receives wages in return, and lives with a specific employer. Not only those who are employed and are actually employed, but also those who need to guarantee the three labor rights, including those who are temporarily unemployed or those who are looking for a job (Supreme Court ruling on February 27, 2004) 2001du8568 ruling, Supreme Court ruling on February 13, 2014, ruling 2011da78804, Supreme Court ruling on January 29, 2015, ruling 2012du28247, etc.). In addition, the immigration control law stipulating restrictions on foreign employment is not only to prohibit the factual act of hiring foreigners without employment qualifications, It is difficult to see it as an attempt to ban legal effects such as various rights under the Labor Relations Act according to one's status as an employee (see Supreme Court Decision 94nu12067, Decided on September 15, 1995, etc.).

Therefore, a person who provides work under a subordinate relationship with another person and receives wages, etc. in return is a worker under the Trade Union Act, and as long as the worker status is recognized under the Trade Union Act, whether such a worker is a foreigner or employment qualification Depending on the presence or absence of employment, it cannot be regarded as not included in the scope of workers under the Trade Union Act.

☞ Cases where it is determined that foreign workers without employment qualifications are workers under the Trade Union Act, and foreign workers without employment qualifications can establish or join a labor union as long as they are included in the concept of workers under the Trade Union Act.