Article 41, paragraph 2 of the Trade Union and Labor Relations Adjustment Act, which bans industrial action by employees of major defense contractors, has been brought before the Constitutional Court. The court is expected to decide as early as this year whether the provision is unconstitutional.
If the court rules it unconstitutional or incompatible with the Constitution, industrial action by defense industry workers, which has been restricted on national security grounds, could be allowed within certain limits. The defense industry is closely watching the potential impact on weapons production and the maintenance of military readiness.
◇Unconstitutionality review sparked by the Hanwha Aerospace union case
According to the legal community and the defense industry on the 29th, the Constitutional Court is reviewing a constitutional complaint against Article 41, paragraph 2 of the Trade Union and Labor Relations Adjustment Act. The provision states that among employees working at major defense contractors, those engaged in power, water, and defense materiel production cannot engage in industrial action. Violators who go on strike can face up to five years in prison or a fine of up to 50 million won.
The Constitutional Court's review began in June 2021 when the Changwon District Court referred the question of constitutionality. While hearing a criminal case related to industrial action by Hanwha Aerospace union officials, the Changwon District Court asked the Constitutional Court to rule, saying the provision could excessively restrict the right of defense workers to collective action.
The key issue is the limit of constitutional restrictions on the right to collective action. Article 33, paragraph 3 of the Constitution provides that the right to collective action of employees working for major defense contractors may be restricted by law or not recognized. The question is whether the current provision of the Trade Union and Labor Relations Adjustment Act, which effectively imposes a blanket ban on industrial action based on that clause, is an excessive restriction.
After more than four years of review, the Constitutional Court in February held a hearing to question Hanwha Aerospace, the Ministry of National Defense, the Defense Acquisition Program Administration, the Ministry of Employment and Labor (MOEL), and others. At the time, the court reportedly heard views on the legitimacy of the current ban on industrial action and on institutional alternatives that could replace it. The legal community expects that, after review by constitutional researchers and deliberation by justices, a conclusion could come as early as within the year.
◇If strikes are allowed, how far are the brakes applied… essential services and emergency adjustment floated
During the Constitutional Court's inquiry, three alternatives to the current blanket ban were reportedly discussed: designating the defense industry as essential services under the Trade Union and Labor Relations Adjustment Act, making it subject to the emergency adjustment system, and maintaining the ban on industrial action while introducing compulsory arbitration. The court is said to have heard opinions from defense stakeholders on these options.
The defense industry sees all three options as having limited effectiveness. The essential services system is mainly applied to essential public-interest services such as rail, aviation, water, and electricity. It keeps the minimum number of workers and tasks during industrial action. But critics say that without a labor-management agreement on essential services, it is hard to prevent production disruptions.
Industry officials also argue that emergency adjustment does not fit the defense sector. Under emergency adjustment, the Minister of the Ministry of Employment and Labor (MOEL) can suspend a strike for 30 days and refer the case to mediation. The government considered it during the Samsung Electronics strike crisis as well. But strikes at defense contractors can directly affect weapons production and delivery and the maintenance of military readiness, so a post hoc, labor-ministry-centered mediation process has limits.
Compulsory arbitration is also expected to be contentious. Compulsory arbitration restricts strikes in exchange for the state mediating employment conditions such as wages. The defense industry questions whether it is appropriate for the state to directly mediate wage issues when defense contractors are private corporations. The reality that labor costs are calculated through the defense cost structure system could also become an issue.
A labor law attorney said, "Essential services, emergency adjustment, and compulsory arbitration are not systems widely used in practice," adding, "Even if the Constitutional Court sees unconstitutionality, it may not immediately issue a simple unconstitutional ruling but could hand down an incompatibility decision and call on the National Assembly for follow-up legislation."
◇U.S. and Germany allow defense strikes… Ministry of National Defense says "Korea is a divided country"
Labor groups argue that the current provision, which categorically bans industrial action by defense workers, violates the three constitutional labor rights. They say that since a significant portion of defense materiel is for export, the claim that temporary production disruptions immediately pose a grave threat to national security is exaggerated.
Critics also say Korea's restrictions are tougher than those of major countries. The United States, Germany, Japan, and Israel do not have separate laws that in principle ban industrial action by defense-sector workers. There have in fact been cases where defense contractor workers went on strike or raised the prospect of strikes.
In August last year, more than 3,000 employees in the defense arm of Boeing in the United States went on strike for over 100 days demanding wage increases and other changes. They are involved in producing the F-15 fighter jet, among other systems. Many major German defense corporations operate under IG Metall, the metalworkers' union, and can exercise the right to collective action like general manufacturing workers. Employees at Israel Aerospace Industries, a state-owned defense contractor, also declared a labor dispute in 2024 over wages. Strikes took place at Israeli defense corporations including Rafael in 2016 and 2017.
The Ministry of National Defense and the Defense Acquisition Program Administration say Korea's security environment is different from that of other countries. During its inquiry in February, the Constitutional Court reportedly asked whether industrial action by defense workers is allowed in Israel even under the threat of war. In response, the Ministry of National Defense said, "Consider Article 33, paragraph 3 of the Constitution, which reflects that Korea is a divided country," adding, "Variables that could affect defense industry production and the maintenance of military readiness must be minimized."
◇Concern about a legislative vacuum after the Constitutional Court's decision… defense industry says "follow-up measures needed"
The defense industry also worries about the possibility of a legislative vacuum after the Constitutional Court's decision. If the court rules unconstitutional or incompatible with the Constitution, Korea will have to newly determine how far to allow industrial action by defense workers, which functions must be maintained, and how the government should intervene when strikes disrupt the maintenance of military readiness.
The Ministry of National Defense and the Defense Acquisition Program Administration are reviewing response measures. A DAPA official said, "We are comprehensively reviewing the opinions raised during the Constitutional Court's inquiry," adding, "In light of the particularities of defense acquisition, we will consult with relevant ministries to derive reasonable improvement measures."