The Dangerous Magic of 'Enforcement Decree' Amendments for the 'Yellow Envelope Law'

A contentious debate is emerging over the interpretation and potential implementation of South Korea's revised Trade Union Act, with some legal professionals suggesting the use of enforcement decrees to restrict the scope of labor disputes. These proposals aim to exclude matters related to management decisions, as defined by commercial law, and performance-based pay from being considered legitimate subjects of labor disputes.

The core of the argument from proponents of this approach is that the revised law's definition of labor disputes is too broad. They propose that an enforcement decree could explicitly state that issues concerning management judgment or profit-sharing based on operating or net income are not conditions of employment. This, they contend, would provide a more manageable framework for labor relations.

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It is legally problematic to try and reduce the scope of labor rights through an enforcement decree when the law itself does not provide for such a delegation.

However, critics, including labor law expert Park Ui-geun, argue that such a maneuver would be legally unsound and potentially unconstitutional. Park points to Article 37 of the Constitution, which stipulates that fundamental rights can only be limited by law when necessary, and Article 75, which restricts presidential decrees (enforcement decrees) to matters specifically delegated by law or necessary for law enforcement. He asserts that an enforcement decree cannot independently narrow the scope of rights already established by law, likening it to moving a wall rather than just placing a signpost.

Park further emphasizes that the revised Trade Union Act encompasses disputes over various working conditions beyond just wages, including business management decisions that affect employees. He argues that the law's aim is to achieve industrial peace through the adjustment of conflicting interests, not by unilaterally diminishing labor rights. Allowing an enforcement decree to exclude performance-based pay from labor conditions would, in his view, fundamentally alter the balance intended by the legislature and potentially lead to an "inverted pyramid" legal system where subordinate legislation overrides statutory law.

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If you truly believe the revised Trade Union Act is flawed, you should amend the law itself through the National Assembly.