쟁의행위기간 중 대체근로제한에 관한 연구

The article 43 of Trade Union and Labor Relations Adjustment Act (Restrictions on Hiring by Employer) stipulates, “No employer shall hire persons who are not related to their business operations, or use replacements during a period of industrial action so as to continue works which have been stopped by industrial actions (paragraph 1). No employer shall, during a period of industrial actions, contract or subcontract out work which has been suspended because of the industrial action concerned (paragraph 2).”This paper, by interpreting the issues rose from the regulation to restrict the substitute works whilst on‐going industrial action (paragraph 1 & 2, article 43 of Same Act) and reviewing the judicial leading cases as the practical examples of such issues, brings about the following conclusions. The interpretation of such regulation of protecting the labor right, which is to be secured intrinsically by Korean Constitutional Law, was performed under the basis principal to harmonize it with the employer’s right to operate business. Firstly from the clause of ”the persons who are not related to the [business operation]”, the comprehensive interpretation of regulation to broaden the possible range of substitute work to all work places or work tasks within the business operation unit is not valid. Secondly, it is not illegal to hire or recruit for vacant positions which were prior planned to industrial actions for business expansions purposes or for planned new hiring. Thirdly, the legitimacy requirements for the trade union’s counteractions to the substitute works, especially with the obstructing of employer’s illegal substitute works whilst on‐going industrial actions, does not correspond to that of picketing and thus the requirements of such can be dispensed with. Fourthly, this regulation of banning the substitute works does not apply to the industrial actions lacking legitimacy requirements. Lastly, although the employer’s right to operate business (substitute work) during lockout is admitted, this has to be further reviewed with an in‐depth consideration on overall rescue system for unfair labor practices.