교섭창구 단일화 제도에 대한 헌법재판소 결정문 읽기 ― 헌재 2012. 4. 24. 2011헌마338 ― (Reading the Constitutional Court’s Decisions on Article 29-2 of Trade Union and Labor Relations Adjustment Act — Constitutional Court 2011Hun-Ma338 —)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 85호 / 95 ~ 141페이지
· 저자명 : 강선희

초록

Along with the abolition of the ban on multiple trade unions, the single bargaining window system was introduced in Article 29-2 of the Trade Union and Labor Relations Adjustment Act(hereinafter referred to as the ‘TULRAA’) and came into force on July 1, 2011.
Since the introduction of TULRAA Article 29-2, it has been controversial whether or not the collective bargaining rights(Article 33 of the Constitution, “to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action.”) of minority trade unions have been violated. On April 24, 2012, the Constitutional Court ruled that Article 29-2 etc. of TULRAA was constitutional. However, once again, the Korean Confederation of Trade Unions(KCTU) has filed a constitutional complaint against it in 2020.
Despite the constitutional decision(2011Hun-Ma338) of the Constitutional Court, the critical views on the single bargaining window system could not be resolved. The critical views is what public interest is to be achieved through the single bargaining window system even while infringing on the collective bargaining rights of minority trade unions(relevance of ‘public welfare’), whether the need to unify the bargaining windows(establishing an efficient and stable bargaining system and uniformity of working conditions for union members) can serve as a basis for limiting the collective bargaining rights of minority trade unions(Whether the legislative purpose is to realize ‘public interest’), whether Article 29-2 of TULRAA should be applied compulsorily. If the collective bargaining rights of minority trade unions must be restricted for the realization of the public interest, it is whether there are other means to minimize the infringement other than the majority representative system, which essentially infringes on the collective bargaining rights of minority trade unions. And whether the current single bargaining window system of the majority representative system essentially infringes on the collective bargaining rights of minority trade unions.
The current single bargaining window system still maintains the effect of banning multiple unions, and halves the purpose of abolishing the ban on multiple unions and shifting to the principle of free establishment of trade unions. It is not ‘allowing’ multiple unions, but by abolishing the prohibition of multiple unions, guaranteeing the ‘free establishment of trade unions’ as a ‘Ought to exist’, it should also be remembered that multiple unions are not implemented in return for a single bargaining window. It is time to think forward-looking, removing the authoritarian elements from the past regulatory perspective from TULRAA.

영어초록

Along with the abolition of the ban on multiple trade unions, the single bargaining window system was introduced in Article 29-2 of the Trade Union and Labor Relations Adjustment Act(hereinafter referred to as the ‘TULRAA’) and came into force on July 1, 2011.
Since the introduction of TULRAA Article 29-2, it has been controversial whether or not the collective bargaining rights(Article 33 of the Constitution, “to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action.”) of minority trade unions have been violated. On April 24, 2012, the Constitutional Court ruled that Article 29-2 etc. of TULRAA was constitutional. However, once again, the Korean Confederation of Trade Unions(KCTU) has filed a constitutional complaint against it in 2020.
Despite the constitutional decision(2011Hun-Ma338) of the Constitutional Court, the critical views on the single bargaining window system could not be resolved. The critical views is what public interest is to be achieved through the single bargaining window system even while infringing on the collective bargaining rights of minority trade unions(relevance of ‘public welfare’), whether the need to unify the bargaining windows(establishing an efficient and stable bargaining system and uniformity of working conditions for union members) can serve as a basis for limiting the collective bargaining rights of minority trade unions(Whether the legislative purpose is to realize ‘public interest’), whether Article 29-2 of TULRAA should be applied compulsorily. If the collective bargaining rights of minority trade unions must be restricted for the realization of the public interest, it is whether there are other means to minimize the infringement other than the majority representative system, which essentially infringes on the collective bargaining rights of minority trade unions. And whether the current single bargaining window system of the majority representative system essentially infringes on the collective bargaining rights of minority trade unions.
The current single bargaining window system still maintains the effect of banning multiple unions, and halves the purpose of abolishing the ban on multiple unions and shifting to the principle of free establishment of trade unions. It is not ‘allowing’ multiple unions, but by abolishing the prohibition of multiple unions, guaranteeing the ‘free establishment of trade unions’ as a ‘Ought to exist’, it should also be remembered that multiple unions are not implemented in return for a single bargaining window. It is time to think forward-looking, removing the authoritarian elements from the past regulatory perspective from TULRAA.

참고자료

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