노동위원회 구제명령의 적절성

The paper examines the appropriateness of the remedial orders imposed by the Labor Relations Commission of Korea, and the implications are summarized as follows. Firstly, if the remedy system of unfair labor practices has been implemented in order to supplement civil remedies in terms of the purpose of remedy system, remedy system for unfair dismissal and other relevant practices was adopted as a special legal procedure in spite that remedy for violation of private rights is available. Compared with judicial remedy, administrative remedy is likely to be simpler, easier, and more prompt. Regarding the authority of the Labor Relations Commission in the remedial orders, especially in cases such as unfair dismissal, the rights violated are quantified, and thus there is almost no discretion offered for the Commission to exercise. Compared with unfair dismissal case, it is not easy to quantify the degree to which the three basic legal rights of labor are violated in case of unfair labor practices, so that there is allowed substantial discretion in recovering rights. On the other hand, the authority of the Labor Relations Commission appears to have a certain level of limitation. Remedial orders are exercised in order for the restitution of violated rights, and hence the orders are not allowed to impose on employers any duty that is beyond the violated rights. In addition, the Labor Relations Commission is allowed to give a decision within the domain for which employee or labor union raises complaint, so that the remedial orders are restricted within such domain. In case of employer's unfair labor practices, for the Commission to impose such remedial orders towards disadvantageous adjudication cases as abstention order, apology in public announcement order, provision order of corporate facility, restitution order, and employment and business revival order may conflict with the characteristics of each case concerned or violate the fundamental rights of the Constitution including freedom of conscience, property rights, and freedom of business, so that it is not possible. If the Commission requires employer to have its employee to return to original work as remedial order for unfair dismissal, such order may violate the discretion of employer to assign job duty in an excessive manner. Since there is a certain limitation in directly realizing employee's right to labor and a change in the conditions after dismissal, employee's returning to their original work is often not easy. It therefore should not be upon compulsion. The author thus considers it appropriate to impose on employer a remedial order to make an effort to recover employee's status in workplace rather than return to have him or her to return to original work.