Ruling Cancelling Rejection of Establishment Report of a Union of Undocumented Foreign Workers

Who this helps

This may help people wondering whether foreign workers without legal status can form a union. It may also help those looking at cases where a union's establishment report was sent back.

Case overview

Court

Seoul High Court

Date of judgment

Feb 1, 2007 (Thu)

Topic

Employment & Labor Unions

Original title (Korean)

불법체류 외국인의 노조결성(2007.2.1.선고)

A labor union whose main members are undocumented foreigners submitted a labor union establishment report. The head of the regional labor office, who made the decision, said the union had not provided the missing names of each workplace, the number of members, the representative's name and the member list. The head also said the union could not be regarded as a labor union because its main members were undocumented foreigners, and sent the report back. The union filed a lawsuit asking the court to cancel this decision.

Can a labor office return the establishment report of a union formed by undocumented foreign workers?

The regional labor office returned the report for two reasons. It said the union had not supplied the workplace-based names, number of members, representative's name and member list. It also said a union mainly of undocumented foreigners could not be seen as a union. The court said undocumented foreigners who actually work in Korea and live on wages count as workers who can form a union. It cancelled the rejection.

How the court ruled

The court ruled in favor of the union and cancelled the rejection. It said the rule requiring names of each workplace and similar items cannot be seen as a rule for checking whether the ban on multiple unions organizing workers of the same occupation in the same workplace is violated. It said undocumented foreigners who actually work in Korea and live on wages and the like are workers who can form a labor union. It also said that demanding the member list to check residence status, without a basis in law, was unlawful.

What to check in a similar situation

How establishment reports are received and returned can be confirmed with the regional labor office. The case record can be confirmed with the court.

• Unpaid wages and work injuries
• Minimum wage calculator
• Contacts: Ministry of Employment and Labor helpline 1350

Terms explained

Establishment report

A document submitted to the administrative authority when a union is formed. In this case it was returned.

Rejection (return) of a report

An administrative act of sending a submitted document back instead of accepting it. The court cancelled it here.

Ban on multiple unions

A rule against forming more than one union for workers in the same occupation at the same workplace. The court did not see the rule on workplace names as meant to judge this.

Member list

A list of the names of people who joined a union. The court said demanding it without a legal basis, to check residence status, was unlawful.

More rulings on this topic

• Court upholds corrective order and fine in foreign trainee training fee case · Ulsan District Court
• Ruling on whether foreign instructors with a limited stay period became employees without a fixed term · Seoul Central District Court
• Court rules that renewing an employment contract without approval of an extension of the employment permit period does not keep the contract going · Ulsan District Court

See all 5 rulings on Employment & Labor Unions →

Frequently asked questions

Who brought the lawsuit?

A union whose main members were undocumented foreign workers brought it. It asked the court to cancel the decision returning its establishment report.

How did the court rule?

The court accepted the union's claim and cancelled the rejection. It held that being an undocumented foreigner alone does not limit forming or joining a union.

Does this result apply as-is to similar cases?

This is the court's judgment in that case and does not apply as-is to other cases.