노동법학에서의 헌법학의 역할

Whether fundamental rights in employment on the constitutional law are secured or not has very important meaning in interpreting statutes of labor. The Korean Constitution established in 1948 had secured the rights in Article 18. Even though the Constitution was amended nine times, the rights are still secured in Article 33. I take, however, an apprehension seriously with respect to introducing exclusive collective bargaining system especially in the Labor Union and Labor Relations Adjustment Act(LULRAA) amended on January 1, 2010. Under this circumstance, I intend to analyze some issues, that is, discrimination in employment, dismissal, fundamental rights in employment in public sector(including teacher in private sector), restriction on establishing union by the LULRAA, exclusive collective bargaining system, criminal responsibility in strike, unfair labor practice etc. in a point of view of fundamental rights in employment on the constitution. Furthermore, this paper has also another goal that congratulates Kim, Hyo-Jeon Professor(who is my teacher since a bachelor process of me in Dong-A University and is become a member of the National Academy of Sciences, Republic of Korea on July 9, 2010) on his retirement under the age limit. Conclusions from this article are as follows:① Discriminations in hiring employer's potential employees based on sex, age, disability are prohibited with an independent law each other in Korea. Because the discrimination by an employer is also against the human rights, the objects of discrimination in employment is extended towards general contracts of employment, and these kinds of discrimination should be prohibited in principle. ② The Supreme Court of Korea holds that an employer's termination of the contract of employment on the basis of a false record applied for the job by an employee specifically was lawful in general in the event of dismissal cases. These kinds of the termination of the contract, however, have been motivated substantially by its employee's union activities, and then an employer's terminating the contract because of the false record should be deemed to have violated generally a justice cause clause for dismissal in Article 23 of the Labor Standards Act. ③ All teachers excluding Professors in College or University has the right to organize, to collective bargaining, and to conclude collective agreements, but is still prohibited from entering into strike. The right to strike of the teachers in private sector specifically, however, should be recognized through amendment of a statute concerned. ④ According to the ULRAA, an union is never to be lawful without reporting on establishment of the union against administrative authority and getting certification from the authority. In that case, the union is prohibited from using the name of the union with criminal liability. Those restrictions on establishing union in the ULRAA also should be repealed as soon as possible. ⑤ The Supreme Court holds that a requirement of two thirds in Article 81(2) is an effective requirement to make union shop agreements between union and an employer or its association. Where the employer forces an newly employee who is employed newly to choose the union of the party to the agreements, however, it should be construed as unfair labor practices. Thus, when an employee is employed under union shop agreements, if the employee choose another union that is not a party to the union shop agreements, his(her) right to choose union should be respected fully. ⑥ An exclusive collective bargaining system can be construed as an unconstitutional system prominently against fundamental rights in employment on the constitution. According to a traditional interpretation of the rights to organize among the fundamental rights, an equal treatment between unions by employer has been recognized. So a principle of the equal treatment between unions should be reflected on operating the new bargain system. ⑦ There are many restrictions on the procedures of strike by employee(or union) side in the ULRAA. The Supreme Court holds that the procedures should be done for a lawful strike, and so if the strike fails to keep the procedures(approval of a majority of union members specifically), the strike will be unlawful also in the relation to its employer. According to a present law by the Supreme Court, the employer pursues a criminal responsibility against the union planed or did the strike, and the employee participated in the strike. Even though the strike failed to comply with the procedures, it should be interpreted not to be an object of the criminal responsibility at the least in the relation to the employer. ⑧ According to a present law also by the Supreme Court, where an employer has a justice cause in dismissal, even though the dismissal is assumed to have antiunion intention by the employer, it generally will not be unfair labor practices. I suggest again, however, as I already said in another article, that the dismissal is valid, and simultaneously the dismissal should be considered as unfair labor practices.