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Individual Labor Relations Law provides various types of system to receive employee opinions. The law prescribes a majority trade union, majority employees, representatives of majority employees, and labor and management committee as parties to decide on employee opinions. It also stipulates written agreement, consent, and consultation as the way to provide opinions. Based on the observation that complicated systems confuse parties involved and drop trust on the contents of the system, this research detects issues on the overall system to receive employee opinions and suggests how to improve the system. The system in general is not unified and organized and in part is lacking in legal principles. Given that, this study presents as a solution that the labor and management committee system will be developed into the 'labor and management agreement system' to be equipped with unity and that individual issues will be addressed in the process of development. Since this approach has not been attempted, this research may risk not reflecting all the necessary elements for analysis or not resolving incongruity between analyzed elements. I hope that this study will be the basis for the follow-up research in future which will provide an analysis and an alternative solution of more complete level.

It is incumbent on United States labor unions that are the exclusive bargaining representative of workers, to represent every workers in appropriate unit "fairly, impartially, and in good faith." This obligation is called the Duty of Fair Representation. This duty is not based on any positive law, but is recognized by legal cases through interpretation of Railway Labor Act and National Labor Relations Act, which prescribe the exclusive representation. The duty of fair representation is not imposed on employers but only to representative labor unions. There are two types of breach of the duty: breach by discrimination and breach by bad faith. Breach by discrimination can be further categorized into one based on by race or sex, and one based on union membership. However, discrimination based on race, sex, or national origin only violates Title VII of the Civil Rights Act, and it does not violate NLRA. Therefore only discrimination based on union membership can be brought to NLRB as unfair labor practices according to NLRA. On breach of the duty by bad faith, it does not constitute a breach of duty merely because the a union brought unfavorable result to some members.. Federal Supreme Court recognized the representative union's discretion within reasonableness, and the union's action has to be so far out of "wide range of reasonableness" to be irrational. Representative union's breach of the duty of fair representation can constitute an unfair labor practice in terms of NLRA. However Federal Supreme Court held that because breach of the duty is not classified as unfair labor practice, it is not required to meet prerequisite for unfair labor practices to constitute a breach of the duty. Although criteria for breach the duty and criteria for unfair labor practice differ, there are cases that constitute both. Even if a breach of the duty amounts to an unfair labor practice, the jurisdiction of federal courts does not vanish. The duty of fair representation in United States offers following implications for South Korea. First, Trade Union and Labor Relations Adjustment Act (Act) of Korea burdens the duty of fair representation to both unions and employers, but US only imposes it to unions, not employers. Secondly, Article 29-4 Clause 1 of the Act prescribes the duty of fair representation as “shall not discriminate ... without any reasonable grounds.” It is unclear whether bargaining in bad faith constitutes a breach of the duty here, while it is seen as a breach in United States. Thirdly, the Act needs to present different criteria for breach of the duty and unfair labor practices, similar to United States, and separate cases into “breach of the duty but not an unfair labor practice”, “breach of the duty and an unfair labor practice”, and “not breach of the duty but still an unfair labor practice.”

Among the many problems surrounding the multiple trade union system, this research selects the clarification issue regarding minority unions, and the purpose of this research is to cause an improvement to the current system by exposing the situations where a minority union cannot exercise basic labor rights such as collective bargaining and acting rights. As a threshold matter, under the ILO standards, a minority union shall be guaranteed to be able to function and operate as a labor union under any circumstances. The standards also mandate that there shall be a minimum legal system to represent monitory union members even when a policy preferring majority union is being introduced. However, under the current Korean laws, a minority union, albeit a labor union protected by the Constitution, faces situations where it cannot adequately represents the interests of it members in collective bargaining practices and labor disputes. In some cases, formalistic limitations are imposed on minority unions in that it is required to have a certain number of members in order to become a bargaining party to collective bargaining. Therefore, although minority unions cannot receive the same de jure or de facto treatments as major unions do, there must be a minimum legal status guaranteed to them. Further, a minimum system shall be devised and developed to enable minor unions to represent the uniqe interests of their members.

I intend to interpret union shop agreement under plural unions and bargaining representative union system in this article. The constitution of Korea has secured the right to organization, collective bargaining, and concerted activities allowed only to workers under Article 33(1). Furthermore, the Trade Union and Labor Relations Adjustment Act(TULRAA) provides union shop agreement in Section 81(2). According to the TULRAA and the Supreme Court of Korea, however, union has to represent more than two thirds of employees within a bargaining unit to conclude the collective agreements including a union shop clause with an employer or its association(s). In my opinion, the conclusions are as follows: First, the requirement of ‘more than two thirds’ should not be interpreted as an absolute condition to insert a union shop clause in collective agreements between bargaining representative union and an employer or its association(s). If an employer agrees to the union shop clause with the majority union, it will not be an unfair labor practice by an employer because the requirement has only a presumptive effectiveness. So even a minority union is able to conclude an union shop agreement with an employer or its association(s). Second, even though a number of its own union members does not satisfy the requirement, the union has the position to conclude a union shop agreement with an employer or its association(s) that enforces nonunion members to be the union member, when a bargaining representative union represents ‘more than two thirds’ of employees in a bargaining unit. However, it should be noted that the effect of the agreement does not come into force to a member who is to be a member of another union or newly established union. Third, the TULRAA provides that an union shop clause has not effect to an nonunion member whom the union expelled. However, the Section 81(2) of the Act should be amended because the provision like this restricts an validity of the union shop clause extremely. Then I suggest that the union shop clause has to be effective to an employee who remains at the bargaining unit as a nonunion member, after he or she was expelled from the union of one party to the collective agreements. Finally, I think that it is not against a Duty of Fair Representation in itself for a bargaining representative union to conclude a union shop clause with an employer or its association(s). In interpreting this problem, it should be considered that, according to the interpretation of the union shop agreement and the TULRAA, the agreement is no more fearful as a nonunion member has the right to choose union that he or she wants to join.

This study examines the actual condition transfer of business or workplace of the low skilled migrant workers' labor market in Korea. Also in this paper I will examine Legal Problems and Proposal on Transfer of Business or Workplace of Migrant Workers in Korea. "The Act on the Employment of Foreign Workers." was introduced on August 16,2003 and enforced since August 17, 2004. But existing Employment Permit System does not solved problems of violation of human rights and discrimination. Also, this system prevents migrant workers from acquiring proper protection of labor law. Specially, this system is going to cause illegal stay, because the existing provisions includes such a poisonous clause as ' a limitation of transfer of business place etc. Finally, there is possibility that cause the violation of human rights and the exploitation of labor that happened under the industrial trainee system. Also, this Act contains abuse of human rights, and has been a lot of controversy again: 'permission for transfer of business or workplace'(The Act on the Employment of Foreign Workers. Art.25.), However, october 9, 2009 and June 4, 2010 to meet the needs of the workers and to hire reliably foreign workers, the revisions of provision protecting the rights of foreign workers were made. However, the current employment permit system is still enforced in many legal issues still remain. In this paper, which mainly measures to review and improve the institutional and legal issues were to review. Most of these migrant workers are working under the labor condition of lower wage and longer working hours compared with the domestic workers. This differences cause serious discrimination problems concerning the human rights of migrants connected to the national migrant workers policy. There are several policies that constitute the Employment Permit System related to foreign workers. First of all, we can raise the anti-discrimination principle that prohibits discrimination on the basis of nationality. And among other policies are limit access by migrant workers to remunerated jobs, which is the result of granting priority to the nationals of the state of employment. This paper examines the relations between two conflicting policies. This study suggests a few reforms on the legal system affecting migrant workers. First, host state must provide migrant workers with enough information on the jobs they will take charge of. Regulations of "permission for change of business or workplace" to 'protect the domestic labor market' for some is inevitable. Employment for overseas Koreans visiting of foreign nationality are allowed freedom of employment. The results occurred in the labor markets are as follow: substitution effects on employment between domestic worker and foreign worker effects. And employment for overseas Koreans visiting of foreign nationality will be breached a complementary principle of the current "Employment Permit System" in the labor market. In the future, the revisions of "Employment Permit System" have to establish on the basis of the objective review on the impact and effect of its revision in domestic labor markets. In this paper I will examine revision plans for on the general problem and problem of violation of human rights that appear at enforcement process of employment permit system, and introduce improvement countermeasures.

In contemporary global era, international material and personal exchanges are extremely active. Moreover, number of workers who have left their own countries and provide or have been providing their manpower to the business or the workplaces located in the other countries for the purpose of getting wage, the foreign workers, are gradually increasing. As we have entered into the multi-cultural society as of present, we should continuously make efforts, for the sake of their human rights protection and its promotion, by seeking the way to improve the system and policy more efficiently after analyzing and considering various problems raised from work scenes. Therefore, the following remedial measures on foreign worker’s rights protection are hereby suggested as an alternative: First, regarding three labor rights of foreign workers, the rights will be truly guaranteed only if the independence of enjoyment for three labor rights of unregistered foreign workers is recognized. Second, the current ‘laws on employment of foreign workers’ that excessively restrict the freedom of workplace transfer or of paid activities must be fundamentally revised in order to exclude any possibility that downscales various working conditions and forces them out to illegal situations by deserting from workplaces. Third, to guarantee foreign worker’s rights to health, the foreign workers must be provided of medical services for neglected class of people, vaccinations and worker's compensations without any obligation of notifying and must be able to practically buy health insurance through the measures such as health insurance fee reduction for financially embarrassed foreign workers. Forth, rights to health for dependent foreigners in the Immigration Processing Center should be guaranteed to the extent of that of domestic convicts and furnishing a surety on emergency treatment must be prohibited. Fifth, the system must be improved to allow children of unregistered foreign workers to enter the schools without providing any certificate on immigration or on alien register so their actual rights to education can be assured. Sixth, the children’s access rights to education must not be segregated and a curriculum for the children must be considered and the integration in the true sense of word must be achieved at a place of education by respecting their cultural identities. Seventh, to assure the most basic human rights of foreign workers, rights to family union must be promised for them to live humanly and happily in any country that they are working at with their families at any time they wish. Outside of that, constructions and services of administration must be revised to the purpose of the law by supplementing the law system for foreign workers not to get discriminated for vocational rehabilitation trainings under the Workers' Compensation Act and foreign workers must be included in recipient’s list on the Employment Insurance Law in principal and disadvantages from a stay for certain periods should be supplemented and if foreign workers have requested for a vocational training or a retraining, either Employment Approval Policy should be complemented for them to be excluded from the objects to be deported by considering requests for change in business or workplaces or basically the Employment Approval System should be changed into the Work Permit System. Moreover, according to the need of human rights devices with rather detailed and binding legal grounds in national level for foreign workers protection, we should ratify ‘International Convention on the Protection of All Migrant Workers And their Families’ which has been chosen and effectuated by UN so that we raise ourselves to be a country where has taken a major step forward by promising the human rights of foreign workers.

The social problems that arise as a result of aging of the population are mostly in the areas of labor and social security. As such, the core challenge among the challenges associated the preparation for aged society lies with the ensuring of retirement income security by making the aged workers stay in the work force and the reduction of social costs that will incur in the future. In the case of Korea, however, although in preparation for aged society various laws and systems were prepared and have been in place - in terms of labor and social security statutes, - these are not deemed to be corresponding to reality nor systematically unified. As such, this study conducted an overview of the state of the legislations pertinent to the employment of aged workers, and selectively examined interpretation problems among the existing statutes and practical implementation issues. First, in this study, legislations for the preparation for aged society were classified into three different systems: (i) the field of maintaining or extending the current employment status of aged workers; (ii) the field of promoting the employment of aged workers; and (iii) the field of ensuring retirement income and health coverage and solving the daily life problems that aging brings. For the “field of maintaining or extending the current employment status of aged workers,” issues associated with the introduction of mandatory retirement system were reviewed with respect to the salary peak system. Since employment is terminated solely by the fact that an employee has reached a certain age in a mandatory retirement system, conventionally it can be problematic in terms of its legality and legal nature. Because the Korean labor laws do not regulate mandatory retirement system, there have been assertions in the past claiming that the mandatory retirement system itself is illegal. Currently, based on reasons that seniority-based pay structure’s bringing undue burden on business owners, the legality of mandatory retirement system is mostly accepted. In addition, the problem that the introduction of mandatory retirement system constituting an “age-based discrimination” may arise. However, it needs to be arranged so that the prohibition of employment discrimination based on age becomes evidence that gives justification at the time of the selection of dismissal candidates for normal dismissals or dismissals for managerial reasons that are done before mandatory retirement, and it becomes responsible for managing the function of maintaining employment for aged workers. Hence, mandatory retirement, by itself, cannot be considered applicable for age discrimination. Except, in the case where the time of retirement does not meet socially the normally required retirement age, i.e., an act of forcing retirement through age-based mandatory retirement regardless of remaining ability and intent for employment may be construed as discrimination based on age. Meanwhile, there are assertions of the mandatory retirement system being an unnecessary system. This issue needs to be considered in relation to the “legal principle of limited dismissal.” In fact, even if mandatory retirement system is introduced, workers are being dismissed before their age-based mandatory retirement via various means such as “dismissal for managerial reasons,” etc. Regarding this, there are even positions that argue in favor of reconsidering the effectiveness of mandatory retirement system, by mitigating the “statutory requisites of dismissal.” However, the current Supreme Court of Korea is already interpreting with the requirement of dismissal based on management reasons sufficiently mitigated; in fact, in order to guarantee the effectiveness of mandatory retirement system, the “restricting doctrine of dismissal” would need to be interpreted much more strictly. “Salary peak system,” which is a means for acquiring the effectiveness of mandatory retirement system, was examined. “Salary peak system,” with respect to its guarantee of long-term employment, is considered to be an essential system as the premises for the introduction of mandatory retirement system at the current stage. However, as a condition to ensure retirement age, when pre-set limit for the total number of years of employment is reached before retirement age, then from that point on the worker’s salary is adjusted down, i.e., “retirement age ensuring salary peak system” is considered a disadvantageous change in working conditions, therefore, a care must be exercised in its introduction and the consents of workers must be attained. Additionally, for there is a risk of bringing on decrease in retirement pay and public pension benefit levels when going by salary peak system, methods of ensuring each salary level in its introduction need to be considered. The field of promoting the employment of aged workers was separated into “ban on age discrimination in employment” and “various systems for promotion of employment for the aged,” and examined. Related to the banning of age discrimination in employment, the 2008 “act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion” was enacted and has been in place. This law, however, since the subject of discrimination is limited to employers, it needs to be expanded to include parties other than employers. At a minimum, the parties that fall within the scope of the users of Labor Standards Act would need to be included. In addition, in order to acquire the effectiveness of remedies, this would need to be regulated by not only the National Human Rights Commission, but also by the usual businesses of the Labor Relations Committee. Next, reviewing the “various systems for promoting employment of aged workers," although up to now various systems have been carried out, they have been evaluated as unsuccessful in the perspectives of legal system structure, practical effects, etc. The system to prepare for aged society would need to be pursued comprehensively with consideration given to various perspectives and interrelationships. However, in the case of Korea, consistent systems have not been achieved in the process of preparation and implementation of each law and system, and there is a problem of the lack of interconnectivity. A typical example: the concept and scope of an “aged person,” as regulated by each of the statutes, is unclear. As such, the competent authorities that manage employment promotion task for aged persons would need to be unified, and a variety of laws, such as avoidance of performance-based administration, would need to be put in place. In addition, although the "Framework Act on Low Birthrate in An Aging Society” was enacted in 2005 and has been in place since, it is unclear whether this law can assume the needed authority of the framework law concerning employment legislation for aged persons, and it is deemed that this has not been accomplishing the expected role at the time of legislation. There is an acute need to legislate framework acts that oversee each of the laws and systems for the preparation for aged society.

解雇規制に関する規範理論での論議、経済学理論での論議もすべて純粋に理論的な論議によって解雇規制の正当性を議論するという自体が数多い問題点を抱いていると判断される。むしろ解雇規制に関する意見の差をまとめて、実証的な研究を前提にした中で議論するのが大事だと思われる。こういう観点でその実証分析をまてめることを通じて、わが国の解雇規制の労働市場に対する影響を分析することにしたい。実証研究の意義は、解雇規制に賃金減少の効果は認定できないが、雇用量に少し否定的な影響が見えるし、その影響が女性、青年層および教育を受けた期間が短い勤労者に強く見えるということである。そして解雇規制は失業期間を延たり、アウトソーシング勤労者を増加させる効果があるということである。したがって、いわゆる長期雇用労働ないし期間の定めのない勤労者(正規勤労者)の保護を前提にした解雇制限法理が典型勤労者と非典型勤労者(とくに期間制勤労者および派遣勤労者)の格差に影響を与えるという否定的効果を無視するのは不可能である。わが国の解雇法制は、保護対象になる一部に限られた勤労者(insider)と保護対象外のその他の勤労者(outsider)という両極化を招いているのである。とりわけ大きな経済的ショックがかかった今の経済変動期の大きな特徴は、insiderから除外された、または初めからinsiderにならないとoutsiderという選択肢を免れない、解雇規制法制が適用されない勤労者が急増しているという点である。こういうような点で鑑みて、わが国の解雇法制は既存の社会形態と、これを前提に確立されている社会保障・雇用保険制度など制度の問題も含めて、今後の就業形態がなお多様化する可能性も考慮に入れて、望ましい解雇規制の方向が検討されるべきの時期が到来したのである。そして労働市場の状況は、伝統的な労働法がほとんど考慮に入れなかった｢企業の生存と競争力｣というものを労働法の重要な核心的な価値として落ち着けるようにしたことに留意しなければならない。｢企業の生存と競争力｣という価値は、従来の伝統的な労働法が弱者としての勤労者保護に一方的に重点を置いたことから勤労者保護の限界設定、たとえば解雇規制の緩和-ないし修正-を求めているのである。

The purposes of standard working hours are to rehabilitate the employee from mental and physical labor fatigue, preserve labor service, and guarantee the employee's right to participate in social and cultural activities. Overtime work refers to working hours that exceed the standard working hours specified in the Labor Standards Act. Adult employees may extend working hours up to 12 hours per week. But the employer engaged in any business of transportation, sale of goods and storage, finance, insurance, communications, advertisement, etc., may have his/her employees work for more than 12 hours of extended work in a week, and may adjust their recess time. This study starts from the question when this regulation appeared in Korea Labor Standard Act and how it has evolved. The comparative research in relations to ILO, EU, Germany, France, and Japan found immoderate exceptions in applying overtime work rules in Korea. In conclusion, this study made an alternative concerning the regal reformation

For the worker’s healthy lifes, the article 43 of Occupation Safety and Health Acts(OSHA) states medical examinations. It is very important to study the worker’s self-health obligation regarding the medical examination’s natures or it’s types and employer’s diligence duties. First, it requires a consideration about the relationship between OSHA and employer’s diligence duties. OSHA states that employers have to take precautions to prevent the occupational injuries. And, if employers take all of the OSHA’s precautions, it is sufficient to basic diligence duties. And, about the worker’s duties to take a medical examinations, considering that OSHA’s aims promote to a pleasant working environment, it is a problem that workers are able to deny to take a examination. In other words, it is important that workers are obligated to take medical examinations and alternative examinations are included with them. Last, regarding the worker’s medical information, it is the their private information. Therefore, it needs to keep a secret completely about the worker’s medical information.

This article is aimed at situation where clients use contractors. It tries to analyze the general health and safety responsibilities of clients and contractors to protect each other and their workforce. These responsibilities, if not properly managed, can lead to events that could prove costly to all parties. This article mainly focuses on the United Kingdom's health and safety legislations and case studies showing what can happen when things go wrong. As well as the immediate effects, further consequences can arise from delays to the work itself and claims for damages. Even though the British occupational health and safety system is somewhat different from our country's system, this paper sums up the United Kingdom's laws and experiences to 3 parts. First, General Clauses at laws play important role in the British heath and safety system. Second, Throwing away common law doctrines, she introduces strict responsibilities on employers by statue laws. Last, There are special legislations on the high risk industry such as construction industry.

The legal rules governing individual dismissals are one of the most important parts of the Employment Law of Korea. A basic characteristic of dismissals regulation is the employee' right to file a suit against their employer questioning their dismissal as unfair or unjustified. When a dismissal is declared unfair in the Labor Board, the employee should be reinstated and financially compensated. But this is not always the case. When the opposite party appeals against the decision, the dispute takes time and costs a lot. The process of dismissal dispute resolution has become increasingly controversial, but its economic impact remains little understood. Little is known, also, about the extent to which statutory law of unfair dismissal disputes induces inefficiency and redistribution. In this paper, I focus on the nature of litigation and settlement as resolution of unfair dismissal disputes. The paper examines the conditions under which parties have an incentive to enter into the settlement and their welfare implications. Some commentators say settlement permits defendants to strip plaintiffs of important legal rights, while others say that the agreements lead to wider societal harms by inhibiting the development of law. These criticisms have been offered as reasons not to enforce settlement agreements. Settlement agreements, like all contracts, will be attractive to potential plaintiffs and defendants when they can enhance the joint wealth of the contracting parties. Parties have an incentive to enter into an settlement agreement only when the margin between deterrence benefits and dispute resolution costs is larger under the settlement regime. If disputes are resolved efficiently by settlement, if conflict is avoided and citizens learn to seek compromise when disputes do arise, society would be better off.

Die vorliegende Untersuchung beschäftigt sich mit der Rechtsvergleichung des Gesetzsystems und Rechtanwendung auf die ausländische Arbeitnehmer zwischen Südkorea und Deutschland. Der Beitrag konzentriert sich auf den illegalen Aufenthalt der ausländischen Arbeitnehmern. In Deutschland wurde das neue Zuwanderungsgesetz am 5. August 2004 verkündet und ist am 1. Januar 2005 in Kraft getreten. Dieses Zuwanderungsgesetz regelt wesentliche Teile des deutschen Ausländerrechts neu. Die wichtigste Neuregelung ist das mit Artikel 1 des Zuwanderungsgesetzes neu eingeführte Aufenthaltsgesetz, das den Aufenthalt von Drittstaatern (Ausländern, die nicht aus einem Land der EU kommen) regelt und das frühere Ausländergesetz von 1990 ersetzt. Das Aufenthaltsgesetz regelt die Systematik der Aufenthaltstitel neu. An Stelle der früheren Bezeichnungen Aufenthaltserlaubnis, ‑bewilligung, ‑befugnis und ‑berechtigung treten Die indurstrialisierte Länder brauchen die ausländische Arbeitskraft in den manchen bestimmten Industriebranchen. Ein Ausländer muss den Arbeitserlaubnis und Aufenthalterlaubnis haben, um im Ausland legal zu arbeiten. Aber die viele Ausländer arbeiten als ein einfacher Arbeitnehmer ohne Arbeitserlaubnis und Aufenhalterlaubnis. Der Eintritt der ausländischen Arbeitnehmer übt einen negativen Einfluss auf das inländische Arbeitsmarkt aus. Deswegen kontrollieren die meisten Regierungen mit den verschiedenen Maßnahmen den Eintritt der ausländischen Arbeitnehmern, illegalen Aufenthalt und illegale Beschäftigung. Schließlich übt der illegale Aufenthalt und die illegale Beschäftiung von Ausländern die negative Auswirkung deren Beschäftigung der Inländerinnen aus und das Schweigen dieser Problemen kann auch die Menschenrechte von Ausländern verletzen. Um den illegalen Aufenthalt und die illegalen Beschäftung zu vermindern, soll das Gesetzessystem des Aufenthalts und Beschäftigung der ausländischen Arbeitnehmer geändert werden. Zudem soll die Regierung das Programm zur legalen Beschäftigung der ausländischen Arbeitnehmer suchen. Z.B. bei legalen Beschäftung von Ausländern den Arbeitgebern Gratifikationen, die zur Leistungssteigerung anreizen sollen, zu geben. Mit der Änderung des Gesetzes soll überdies die schwere Geldstrafe den die Ausländer illegal beschäftigten Arbeitgeber auferlegt werden.