공무원노조법의 주요쟁점에 대한 검토 (Examination about issues in the law of public employees’ labor union)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 26호 / 97 ~ 136페이지
· 저자명 : 유각근

초록

Law of Public Employees’ Labor Union has been carried into effect since January 2006, and three rights of labor for general public employees could be legally secured with enforcement of the law. However, while industrial relations of public employee has the similar nature as industrial relations in private sector, it recognizes only minimum required basic legal rights of labor in consideration with public interest such as the specialty of work, service for public, and legalization of labor condition. In this aspect, it is demanded to predict possible conflicts or situations between industrial relations and conduct legalistic examination for organization activities of public employees’ labor union in advance in order for rational settlement of public employees’ industrial labor union. Therefore, it is significant to look at major issues in this research among many limitations in the law of public employees’ labor union for settlement of cooperative industrial relations culture. The following is a summary of the research.
First, public employee with class five and above may not be a member of labor union by law because they are unusually in management position and they directly participate in major decision making. However, in reality, public employee with class five or above has the position of middle class manager and their position has no responsibility for managing lower class public employees often. Thus, many have said uniform exception of labor union affiliation with the class is realistic. Moreover, some public employees with class six and under are excluded for labor union affiliation in the Enforcement Ordinance if they are in position of direction or supervision or responsible for general works of human resource and wage or if they work in uniform to exercise law enforcement and work for correction, investigation, or other similar works that requires direction and obedience in order for public order and security. This is also questioned because the range of object is too wide and vague, so it could infringe public employees’ right to organize that is granted by the constitution.
Second, the object of collective bargaining for public employee is applied with regulation of labor union law which characteristic is different from common place of business due to the specialty of public employees’ duty. In general, right to implement personnel management, policy, and management matters of state organization is not included in the scope of collective bargaining. Except that some matters that affects (directly or indirectly) significantly to working conditions should not be excluded as uniform, but should decided whether or not to include as the scope of bargaining with individual and specific judgment.
Third, the right of collective action is prohibited in general in public employee industrial relations. Therefore, grievance settlement system is significant process to recover restricted basic labor right through dispute settlement procedures but not with its mere role to adjust dispute. Hence, it is necessary to consider introducing mediation in aspect of preventing dispute for minimum level but not intervention of public power. Coercive mediation would be necessary but relevant party would rely on if collective bargaining is cancelled. It could affect the party not to implement collective bargaining sincerely. Therefore, voluntary mediation system operation will be needed.
Fourth, American exclusive bargaining system and proportionate bargaining agent system are considered for unification of bargaining window. Given the consideration to emphasize proportionate agent system like the Law of Teachers’ Union, the original purpose is fair distribution and reflection of share and power in proportion with the number of members in labor union, but the situation does not allow objective understanding for actual number of members in labor union. This could cause delay in bargaining. Therefore, it is needed to have objective method to understand the number of members is labor union.
For the last, there could be some problems with the full‐time labor union officer’s qualification or labor conditions. In case he or she is punished, suspended from office, or had pay cut due to unlawful union activity, he or she would be in condition of suspension from office with not wage. Then the practical use for punishment would be vanished. Therefore, it is interpreted that pay cut could be treated for public employee who get wage during suspension from office, but pay cut may not be treated for public employee who does not get wage during suspension from office until he or she resumes office. Therefore, suspension from office or pay cut should be considered first with the specific effect of the punishment. It would be reasonable to interpret that repeated punishment is not available if the punishment is not effective,

영어초록

Law of Public Employees’ Labor Union has been carried into effect since January 2006, and three rights of labor for general public employees could be legally secured with enforcement of the law. However, while industrial relations of public employee has the similar nature as industrial relations in private sector, it recognizes only minimum required basic legal rights of labor in consideration with public interest such as the specialty of work, service for public, and legalization of labor condition. In this aspect, it is demanded to predict possible conflicts or situations between industrial relations and conduct legalistic examination for organization activities of public employees’ labor union in advance in order for rational settlement of public employees’ industrial labor union. Therefore, it is significant to look at major issues in this research among many limitations in the law of public employees’ labor union for settlement of cooperative industrial relations culture. The following is a summary of the research.
First, public employee with class five and above may not be a member of labor union by law because they are unusually in management position and they directly participate in major decision making. However, in reality, public employee with class five or above has the position of middle class manager and their position has no responsibility for managing lower class public employees often. Thus, many have said uniform exception of labor union affiliation with the class is realistic. Moreover, some public employees with class six and under are excluded for labor union affiliation in the Enforcement Ordinance if they are in position of direction or supervision or responsible for general works of human resource and wage or if they work in uniform to exercise law enforcement and work for correction, investigation, or other similar works that requires direction and obedience in order for public order and security. This is also questioned because the range of object is too wide and vague, so it could infringe public employees’ right to organize that is granted by the constitution.
Second, the object of collective bargaining for public employee is applied with regulation of labor union law which characteristic is different from common place of business due to the specialty of public employees’ duty. In general, right to implement personnel management, policy, and management matters of state organization is not included in the scope of collective bargaining. Except that some matters that affects (directly or indirectly) significantly to working conditions should not be excluded as uniform, but should decided whether or not to include as the scope of bargaining with individual and specific judgment.
Third, the right of collective action is prohibited in general in public employee industrial relations. Therefore, grievance settlement system is significant process to recover restricted basic labor right through dispute settlement procedures but not with its mere role to adjust dispute. Hence, it is necessary to consider introducing mediation in aspect of preventing dispute for minimum level but not intervention of public power. Coercive mediation would be necessary but relevant party would rely on if collective bargaining is cancelled. It could affect the party not to implement collective bargaining sincerely. Therefore, voluntary mediation system operation will be needed.
Fourth, American exclusive bargaining system and proportionate bargaining agent system are considered for unification of bargaining window. Given the consideration to emphasize proportionate agent system like the Law of Teachers’ Union, the original purpose is fair distribution and reflection of share and power in proportion with the number of members in labor union, but the situation does not allow objective understanding for actual number of members in labor union. This could cause delay in bargaining. Therefore, it is needed to have objective method to understand the number of members is labor union.
For the last, there could be some problems with the full‐time labor union officer’s qualification or labor conditions. In case he or she is punished, suspended from office, or had pay cut due to unlawful union activity, he or she would be in condition of suspension from office with not wage. Then the practical use for punishment would be vanished. Therefore, it is interpreted that pay cut could be treated for public employee who get wage during suspension from office, but pay cut may not be treated for public employee who does not get wage during suspension from office until he or she resumes office. Therefore, suspension from office or pay cut should be considered first with the specific effect of the punishment. It would be reasonable to interpret that repeated punishment is not available if the punishment is not effective,

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