A clause written as protection, then refused

The notes follow a Korean Supreme Court sitting en banc, case 2016da248998, on damages and related claims. They also write “Supreme Court 2020,” and this reading does not invent a more precise date than that. The dispute is over a clause in a collective agreement: when a worker dies in an occupational accident, the bereaved family is to be hired. The union and the company had put that bereaved-priority hire in as a protection. The company later refused to honour it, and argued that the clause is void as contrary to public order under Article 103 of the Civil Act.

The conflict, as the notes lay it out, has more than one side. The survivors say the collective agreement is still alive. The company says freedom of hiring is infringed, and that other people looking for work are unfairly discriminated against. Union autonomy, the employer’s freedom to hire, and social fairness are set against one another. The court, they write, split into a majority and a dissent — this reading stays with that split as the notes record it, and does not invent party or company names the unique does not give.

Do not void it lightly, and do not apply it everywhere

The writer of the notes would not easily void the collective agreement. It is a form of workplace protection chosen at that workplace, and industrial risk is real. Even so, the writer does not say the clause is justified in every case. It should be applied only in a range that does not conflict with public order. Hiring, they write, is a competitive field; if the clause needs trimming, the scope should be adjusted on the concrete facts, not struck out as a matter of course.

Similar-case research, as the notes summarise it, points the same way. Priority or special-hire clauses can have a legitimate purpose, depending on the structure of the industry and on the level of risk. So-called employment-succession clauses, they write, should not be rejected unconditionally: they should be judged by their purpose. Hiring a deceased member’s family can have some reasonableness when the character of the industry, and the employer’s responsibility, stand out.

Occupation, a strong agreement, and mandatory norms

Constitutional freedom of occupation, the notes add, also reaches the employer’s decision to hire. The Trade Union and Labor Relations Adjustment Act gives collective agreements a strong effect, but they must still be brought into harmony with mandatory norms. The case, in this reading, is not a simple win for one slogan — union autonomy, or the freedom to hire — but a demand to hold those interests together, and to test the clause against public order on the facts in front of the court. The same Korean report, at fuller length, is on CampusDown.

Sources

1. The notes, a student reading of Supreme Court 2016da248998 on a bereaved-priority hire in a collective agreement.

Last updated: 15 November 2026