복수노조설립금지제도의 위헌성

TRADE UNION AND LABOR RELATIONS ADJUSTMENT ACT(TULLA) Article 5 provides that workers are free to establish a trade union or to join it. However, its Addenda Article 5 paragraph 1 provides in cases where a trade union exists in a business or workplace, a new trade union which has the same organizational jurisdiction as existing trade unions shall not be formed by December 31st, 2009, despite the provisions of TULLA Article 5. Therefore, the right to organize of employees depends on the extent to which the employees have organized until December 31st, 2009. This monopoly unionism system originated from 1947 when the United States Armed Forces in Korea(USAFIK) had promulgated the decree which allowed employees to organize only one union in an enterprise. Thereafter this policy has been succeeded by Korean Government. However, this policy do not coincide with the Korea Constitution Law. Article 33 paragraph 1 of the Korean Constitution Law provides that all employees have the right to orgnize, to bargain collectively, and to do concerted activities for achieving better terms and conditions of employment. TULLA Addenda Article 5 paragraph 1 infringes not only on the individual right to organize but also on the collective right to organize, since it prohibit employees who dissatisfy with current labor union from organizing different union. Furthermore, as it discriminate trade unions only based on the trade union's foundation time, which cannot be justified on objective grounds, it violates the principle of equal treatment which embodied in the Korean Constitution Law. In addition, although the new union can be established when it does not have the same organizational jurisdiction as existing trade union, the standard which allows organizing another union in an enterprise is not an appropriate means to present employees' interest. In short, when we consider the history of the monopoly union system, the relations between the end and the means to achieve it, and essential contents to be infringed by the system, TULLA Addenda Article 5 paragraph 1 violates the Korean Constitution Law.