근로조건 결정규범과 유리한 조건 우선의 원칙

Unlike Germany, where industry-wide bargaining is general, Korean Labor Law does not specify any regulations admitting the ‘Advantageousness Idea’. There has been many controversies on whether the idea of advantageousness can be applied under Korean Labor Law, still there not exists a firm stance on the issue. Regarding that the legislation purpose and its basic ideology of Trade Union & Industrial Relations Mediation Act are to maintain and improve the working conditions and to improve the economic and social status of workers by securing the workers' right of association, collective bargaining and collective action pursuant to the Constitution, the Advantageousness Idea must be admitted for granted, in my view, when determining priorities between collective bargaining agreement, rules of employment, and employment contract. Considering two things-controversies are ongoing on whether an employment contract should be admitted as a source of law, and the real form of an employment contract, Advantageousness Idea should be applied between a collective bargaining agreement and rule of employment under normal cases. In reality, there are not many cases which require a review when applying the Idea. In my view, the Advantageousness Idea should be applied only when the employer suggests enhanced working conditions to an individual, after concluding a collective agreement. However, advise to be cautious on the case the such overhasty and indiscreet application of Idea would have the current collective agreement to lose its purpose, which can enable an employee to lose his opportunity to seek for better work conditions in the future. Such concerns should be prevented by prudently applying Article 81 of the Trade Union & Industrial Relations Meditation Act on unfair labor practice. In other words, one should admit Advantageousness Idea as a grand principle, but review the conditions of the unfair labor practices. Then one may invalidate his working condition when unfair practices apparently concluded. With General Binding Force of collective bargaining agreement, labor union members should not be discriminated by applying the same working conditions of non-union members. This is a contradictory case when Trade Union & Industrial Relations Meditation Act violates labor's three major rights. In this case, Advantageousness Idea should not be applied, instead collective bargaining agreement should be applied to all members, so that working condition could be identical to both union and non-union members.