노동조합 설립신고제도와 법외노조 통보의 법적 문제 (Legal Issues on the Registration of Labor Union and the Notification about Outsider Labor Union)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 29권 / 287 ~ 319페이지
· 저자명 : 김인재

초록

On Oct. 24, 2013, the Ministry of Employment and Labor (the MOEL hereafter) had officially notified the Korean Teachers and Education Workers’ Union (the KTU hereafter) that it would no longer be recognized as a legal union, because it had not amended its constitution to ban dismissed and retired teachers from membership. The KTU, being the biggest teachers union and in 1999 recognized after 10 years of struggle, currently consists of about 60,000 teachers.
On the same day, The KTU had filed a complaint with the Court, asking the ministry's action to be withdrawn, and had filed a petition to the UN Human Rights Council and the ILO to press the government to reverse its decision.
The loss of the KTU's legal status as a labor union will bring immediate, adverse effects. It would mean that it could no longer engage in legitimate negotiations with schools, nor be eligible to receive financial support and various benefits from the regional education offices.
Under the current labor law, the dismissed employees from a workplace or the dismissed teachers should not be qualified to become union members by the Article 2 sub-paragraph 4 of the Labor Union and Labor Relations Adjustment Act and by the Article 2 of the Act on the Establishment, Operation, etc., of Labor Unions for Teachers. Nevertheless, the KTU's constitution still allows 9 dismissed workers to remain members.
And, the Article 9 (2) of the Enforcement Decree of the Labor Union and Labor Relations Adjustment Act enacts as follows: “Where, after a labor union is delivered with a certificate of report of establishment, there arise reasons for returning the written report of establishment, which fall under Article 12 (3) 1 of the Act, the Administrative Authorities shall demand the correction within the specified period of thirty days, and if the correction is not performed within this period, they shall notify the trade union in question that it shall not be regarded as a trade union as provided for under this Act.” Nevertheless, the KTU had rejected the MOEL's order.
The Article 9 (2) of the Enforcement Decree might be interpreted against the Article 33 of the Constitution or the Act, because that Article is not authorized by the Act. And the MOEL's notification disposal no longer recognized as a legal union might violate the principle of excess prohibition constitutionally. It's most important that the dismissed employees from a workplace or the dismissed teachers should not be qualified to become union members by the Acts, and the provisions of the Acts might violate the Constitutions and the International Labor Standards regarding the fundamental labor rights enacted by the UN or the ILO.
In order that the fundamental labor rights of all workers should be guaranteed to the fullest, the provisions of Act and Decree regarding the registration of labor union and the notification about outsider labor union should be modified and amended in accordance with the Constitutions and the International Labor Standards.

영어초록

On Oct. 24, 2013, the Ministry of Employment and Labor (the MOEL hereafter) had officially notified the Korean Teachers and Education Workers’ Union (the KTU hereafter) that it would no longer be recognized as a legal union, because it had not amended its constitution to ban dismissed and retired teachers from membership. The KTU, being the biggest teachers union and in 1999 recognized after 10 years of struggle, currently consists of about 60,000 teachers.
On the same day, The KTU had filed a complaint with the Court, asking the ministry's action to be withdrawn, and had filed a petition to the UN Human Rights Council and the ILO to press the government to reverse its decision.
The loss of the KTU's legal status as a labor union will bring immediate, adverse effects. It would mean that it could no longer engage in legitimate negotiations with schools, nor be eligible to receive financial support and various benefits from the regional education offices.
Under the current labor law, the dismissed employees from a workplace or the dismissed teachers should not be qualified to become union members by the Article 2 sub-paragraph 4 of the Labor Union and Labor Relations Adjustment Act and by the Article 2 of the Act on the Establishment, Operation, etc., of Labor Unions for Teachers. Nevertheless, the KTU's constitution still allows 9 dismissed workers to remain members.
And, the Article 9 (2) of the Enforcement Decree of the Labor Union and Labor Relations Adjustment Act enacts as follows: “Where, after a labor union is delivered with a certificate of report of establishment, there arise reasons for returning the written report of establishment, which fall under Article 12 (3) 1 of the Act, the Administrative Authorities shall demand the correction within the specified period of thirty days, and if the correction is not performed within this period, they shall notify the trade union in question that it shall not be regarded as a trade union as provided for under this Act.” Nevertheless, the KTU had rejected the MOEL's order.
The Article 9 (2) of the Enforcement Decree might be interpreted against the Article 33 of the Constitution or the Act, because that Article is not authorized by the Act. And the MOEL's notification disposal no longer recognized as a legal union might violate the principle of excess prohibition constitutionally. It's most important that the dismissed employees from a workplace or the dismissed teachers should not be qualified to become union members by the Acts, and the provisions of the Acts might violate the Constitutions and the International Labor Standards regarding the fundamental labor rights enacted by the UN or the ILO.
In order that the fundamental labor rights of all workers should be guaranteed to the fullest, the provisions of Act and Decree regarding the registration of labor union and the notification about outsider labor union should be modified and amended in accordance with the Constitutions and the International Labor Standards.

참고자료

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