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All Supreme Court “restriction of three labor rights by executive decree, violation of legal reserve”
[법률저널=안혜성 기자] The Supreme Court’s decision that the external union notification system stipulated by the union law enforcement decree was illegal, paved the way for the entire KTU to be recognized as a legal union.The National Union of Teacher Workers (hereinafter, the KTU) has been fighting for 6 years and 10 months after receiving a notification from the Ministry of Employment and Labor for the incorporation of 9 dismissed teachers to the union and filing a lawsuit requesting the annulment of the provision .
Article 24 of the current Trade Union Adjustment and Labor Relations Act (hereinafter referred to as the Labor Relations Act) defines the ‘union’ and stipulates the case in which ‘non-workers may join’ in point D as a reason for not be considered unions. .
In addition, Article 9 of the Implementation Decree of the Trade Union Law establishes that if there is a cause for the rejection of the establishment report after the union has issued a certificate of incorporation, it must correct it and, if it does not comply, ‘notify it is not considered a union under this law. ‘ The notification system ‘is defined.
The question in this case is whether the notification of the foreign union by the Ministry of Labor is legal. On day 3, the Supreme Court all consensus expressed: “The provisions of the decree of execution of this case stipulate a system of notification to the external union without legal basis or delegation of the law. Contrary to the principle, it is not valid, so it is illegal to notify the foreign union in this case based on the decree of execution of this case ”. did.
First, regarding the legal nature of the outlaw union notification, the Supreme Court said: “If you allow non-workers to join, you will not immediately become an outlaw union, but only when there is a notice from the union outside the law for this reason. ” I thought it was a sexual administrative arrangement.
Next, it was pointed out that the notification of unions outside the law had a significant impact on the 3 Labor Law. It is said that the deprivation of the legal personality of a union that is already legally constituted will greatly impede the activities of the union, which is a practical guarantee of the three labor rights enshrined in the constitution.
In particular, Article 33 (2) of the Constitution restricts workers who are public servants the exercise of three labor rights “limited to those prescribed by law.” He also mentioned that 3 books can be guaranteed.
Due to constitutional and statutory restrictions, notifying teachers ‘unions that they are not considered unions under the Teachers’ Union Act does not simply deprive them of their “union” status. It is pointed out that it may be.
The Supreme Court ruled: “It is consistent with the Principle of Constitutional Legal Retention to see that there must be a clear basis in law for the notification of outlaw unions with such strong fundamental rights.”
However, in the case of the current trade union law, it directly stipulates the rejection of the establishment report from the time of its promulgation to the present, but there is no provision for more invasive notification of trade unions outside the law, and there is no mandate to stipulate it in the execution decree.
On the contrary, on November 28, 1987, the ‘union dissolution order system’ was established in the old union law, which allows administrative offices to dissolve unions that have illicit affairs by obtaining a resolution from the Commission. of work. It was also abolished for infringement.
However, just five months after the abolition of the ‘union dissolution order system’, the ‘non-legal union notification system’, which is practically identical to the union dissolution order system, was recently introduced into the decree of application of the trade union law. Furthermore, unlike the old law, the absence of a resolution procedure by the Labor Commission has expanded the space for arbitrariness of the administrative offices.
The Supreme Court said: “The external union notification system was originally stipulated in law, and the administration revived the union dissolution order system, which was abolished according to the decision of the legislator who is the representative of the people, in legislation administrative without legal basis or delegation “. The provisions of the decree for the execution of the case established the essential restrictions on the three labor rights guaranteed by the Constitution without the specific and explicit mandate of the law in matters not provided for by law.
Consequently, the ruling of the Supreme Court is that the notice of the outlaw union based on the provisions of the invalid execution decree has lost the legal basis and is illegal.
The conclusion that the outlaw union notification to all KTUs is illegal is the same, but a separate opinion was also presented, giving different reasons. A supreme judge argued that “it is incorrect to view the entire KTU as an ‘extra-legal union’ before judging the request for ‘notice’ of the non-legal union throughout the KTU.”
It is believed that the regulation of the union law, which stipulates that it is no longer a legitimate union, is a fundamental problem if the affiliation of non-workers is allowed, which is not the executive decree that regulates the illegal union notification system.
The Supreme Court Judge said: “It is not possible to allow a third party who has nothing to do with the union to join an affiliate, and all fired people cannot be accepted as affiliates just because they have been workers at the same time. , but the meaning and purpose of the three labor rights enshrined in the constitution, especially the right to organize. In light of this, he expressed the opinion that workers who were fired while working as a union member should not deny their status as member and deprive them of their legal status for this reason ”.
Another Supreme Justice presented a separate opinion, “Not because the provisions of the execution decree are invalid, but because they are excessive compared to the violations of the entire KTU. This is because, according to the majority opinion, once the report on the constitution of a union has been accepted, the current law cannot in any case deny its status as a union.
The Supreme Judge assumed that “Notification of extrajudicial union means the cancellation of office or withdrawal of the acceptance of the report on the constitution of the union, which is an administrative provision, so regardless of the nullity of the provisions of the decree of execution of in this case, it is necessary to determine if the notification of the extrajudicial union is legal ”. .
“It is clear that the entire KTU, who is the plaintiff, has violated the law, and it is true that it is rejecting an order for correction and request for correction, but the universal standard is set to allow dismissed teachers to join the union of teachers ”. He added that just because the fired teachers are accepted as union members, such circumstances alone will not deprive them of their legal status as a union. “
It is explained that whether or not the KTU has legitimacy as a union is a matter to be evaluated according to the activities of the KTU, and not a matter to be decided based on whether or not a dismissed teacher is affiliated with the union.
On the other hand, the two justices of the Supreme Court said: “The provisions of the law in this case are very unique and clear, so there is no room for another interpretation.” According to the provisions of the law in this case, the complainant is an external union. He presented a dissenting opinion, saying: “It is legal to notify the union outside the law in this case because it is necessary to notify the union.”
He also expressed a different position regarding the historical considerations presented by the majority opinion as arguments. “The union dissolution order system allowed the dissolution of the union regardless of the nature or severity of the violation, or even simply because there was a fear of harming the public interest. According to the definition of the law, only cases that cannot be recognized as a union are strictly limited as grounds for notification ”.
The opinion was also expressed that the National Assembly, the President, the executive branch and the Constitutional Court have not reviewed the laws, stopped the application of the laws or have not improved the administrative legislation, and that the Constitutional Court has recognized the constitutionality of the laws. relevant laws and institutions. .
The Supreme Court justices who disagreed said: “The court should not unilaterally declare its own justice and force other state agencies to follow it, ignoring the order of constitutional laws and regulations. He expressed a critical opinion, saying: “I myself am creating the law without doing it.”
Meanwhile, in response to this case, the Supreme Court said: “Regarding the issue of ‘Notification to External Trade Unions’, which has been a social controversy, it was determined that the restriction of the three labor rights under the execution decree was contrary to the principle of constitutional legal reserve. It is expected that public social debate and legislative and political solutions will be achieved on the issue of union membership of dismissed workers based on the law and the issue of discipline of unions for reasons of disqualification.
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