초록 열기/닫기 버튼
On May 28. this year, Constitutional Court has made a decision over Article2 of the ACT ON THE ESTABLISHMENT, OPERATION, ETC., OF TRADE UNIONS FOR TEACHERS that the Article is compatible with Constitution(8Justices to 1Justice). However, this decision comprises many controversial points in terms of legal principles and logical aspects. So this paper reviews the decision with critical perspectives. The Article2 of the ACT ON THE ESTABLISHMENT, OPERATION, ETC., OF TRADE UNIONS FOR TEACHERS stipulates as belows. Article 2 (Definition) The term “teacher” in this Act refers to a person prescribed in Article 19 (1) of the Elementary and Secondary Education Act : Provided that any dismissed persons who have requested a remedy for unfair labor practices to the Labor Relations Commission under the Article 82 (1) of the Trade Union and Labor Relations Adjustment Act shall be regarded as teachers until a review decision is made by the National Labor Relations Commission under Article 2 of the Labor Relations Commission Act (hereinafter referred to as “National Labor Relations Commission). So to speak, this Article denies dismissed teachers and persons who will be teachers in the future to join the Korean Teachers and Education Workers Union(KUT) and return an application for the establishment of labor union. The majority opinion of the Constitutional Court acknowledged the constitutionality of this Article. The main basis of this decision is that they think that the purpose of this Article is to protect ‘the independence of trade unions’. But I assert that this decision is wrong. I think that the qualifications of the trade union joining should be decided by the trade union autonomously( not be decided by the government), because the purpose of ‘the independence of trade unions’ is to protect the workers. More fundamentally, the legal problems related with this issue should be resolved through legislation. According to the opinions of international organizations(ILO, OECD, etc.) and legislative practices of the advanced countries, the Aricles related with ‘Notification of trade union not be regarded as such as a trade union as provided for under the Act’ should be striked out. These Aricles are as belows. [ENFORCEMENT DECREE OF THE TRADE UNION AND LABOR RELATIONS ADJUSTMENT ACT)] Article 9 (Request, etc. for Supplementation of Report of Establishment) (1) (ommitted) (2) Where, after a trade union has been delivered a certificate of report of establishment, there arise such grounds for returning the written report of establishment as falling under Article 12 (3) 1 of the Act, the administrative agencies shall demand correction within the specified period of 30 days, and if the correction is not performed within the period, they shall notify the trade union in question that it shall not be regarded as a trade union provided for under this Act. <Amended by Presidential Decree No. 15780, Apr. 27, 1998> (3) (ommitted) [TRADE UNION AND LABOR RELATIONS ADJUSTMENT ACT] Article 12 (Issuance of Certificate) (1) - (2) (ommitted) (3) The Administrative Authorities shall return a report filed in cases where a trade union which made the report falls under the purview of any of the following subparagraphs: 1.Where a trade union falls within the categories of each subparagraph 4 of Article 2; 2.Where supplements are not submitted within the designated period in spite of the order to supplement a report in accordance with the provisions of paragraph (2). (4) (ommitted) Article 2 (Definition) The definitions of terms used in this Act shall be as follows: 1. - 3. (ommitted) 4. The term “trade union” means an organization or associated organization of workers that is formed in a voluntary and collective manner upon the workers initiative for the purpose of maintaining and improving working conditions, or improving the economic and social status of workers. In cases where an organization falls into one of the following categories, it shall not be regarded as a trade union. (a) - (c) (ommitted) (d) Where those who are not workers are allowed to join the organization, Provided that a dismissed person shall not be regarded as a person who is not a worker, until a review decision is made by the National Labor Relations Commission when he/she has made an application to the Labor Relations Commission for remedies for unfair labor practices; or (e) (ommitted) 5. - 6. (ommitted)
키워드열기/닫기 버튼
Korean Teachers and Education Workers Union(KUT), notification of trade union not be regarded as such as a trade union as provided for under the Act, the rigt to organize, qualifications of trade union joining of the dismissed workers or dismissed teachers, industrialㆍoccupationalㆍregional trade union, company trade union, independence of trade unions, principle of prohibition of excessive restrictions(principle of proportionality)
