파업시 유지되는 필수유지업무의 범위와 관련조항의 법리적 해석

The new Labor Law, the amended Trade Union and Labor Relations Adjustment Act(TULRAA) in the end of 2006, removed compulsory arbitration scheme and stipulated the essential services maintenance requirement for the purpose of public interest. At Now, the question how to set up specific and realistic criteria for the scope of minimum services so called 'essential services maintenance' which, refers to the services indispensible to the protection of public interest is raised. To solve this problem, there should be efforts to harmonize the right to strike and protection of public interest. After all, when it comes to restriction on the right to strike, neither excessive restriction nor negligence of the protection of public interest is acceptable. If all or most services at an operation are required to be maintained, the workers' right to strike at the operation will be lost. This result is the same as compulsory arbitration actually. But compulsory arbitration is imposed in essential public service businesses before a strike is call. This places an excessive restriction on the workers' right to collective action, and in practice, deprives workers of their right to strike. As a consequence, the compulsory arbitration scheme is inconsistent with the Constitution. In determining the scope of minimum services at an operation are required to be maintained, workers' organizations should participate along with employers. And the determination of the number of workers providing them should also involve workers' organizations. It will be appropriate that the agreements on essential services maintenance are contracted at collective bargaining between Labor and Management. As the TULRAA could be interpreted that the scope of minimum services may be determined by voluntary agreement, it will further enhance the possibility of Labor-Management collective agreement on this issue. The government should also play an important role here as a public supervisor and a helper in determining the scope of minimum services in essential public service businesses and at a company. These analysis might enhance the voluntary agreement and hold labor and management in essential public service accountable for public interest. In solving the problem of substitute work also, it is the same. The minimum interference is the best.