‘노조 아님’ 통보제도의 위헌성 - 전국교직원노동조합 사건을 소재로 -

This article is about the outlawed trade union notification of the Ministry of Employment and Labor(hereinafter “Labor Ministry”) to the Korean Teachers and Education Worker`s Union(hereinafter “KTU”). On 24. November 2013, the Labor Ministry notified that KTU would no longer be recognized as a legal trade union, because it had not amended its constitution to ban dismissed and retired teachers from membership, which was according to the Article 9 (1) of the Enforcement Decree of the Act on the Establishment, Operation, Etc., of Trade Unions for Teachers(hereinafter “the Enforcement Decree of Act of Teachers` Union”) and he Article 9 (2) of the Enforcement Decree of the Labor Union and Labor Relations Adjustment Act(hereinafter “the Enforcement Decree of Labor Union Act”). The Article 9 (1) of the Enforcement Decree of Act of Teachers` Union enacts as follows: “Except as prescribed in paragraph (2), matters not provided for in this Decree with regard to trade unions and labor relations adjustments applicable to trade unions for teachers shall be governed by the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act.” and the Article 9 (2) of the Enforcement Decree of Labor Union Act enacts as follows: “Where, after a trade union is delivered with a certificate of report of establishment, there arise reasons for returning the written report of establishment, which fall under Article 12 (3) 1 of the Act, the Administrative Authorities shall demand correction within the specified period of thirty days, and if the correction is not performed within this period, they shall notify the trade union in question that it shall not be regarded as a trade union as provided for under this Act.”The KTU claimed that the outlawed trade union notification of the Labor Ministry violated the constitutional right to organize a group and filed a lawsuit. However, the Seoul Administrative Court ruled that the KTU cannot maintain its legal status as a legitimate trade union because it allows membership of fired teachers. In a ruling statement, the court said the decision by the Labor Ministry is not against the Constitution. The KTU appealed. The Seoul High Court accepted a request from the KTU to halt a lower-court ruling that stripped the union of its legal status until an appellate court verdict is handed down and asked the Constitutional Court to review the constitutionality of Article 2 of the Act of Teachers` Union, which bans the KTU from letting in fired teachers as its members. It is necessary to examine the validity of the Article 9 (2) of the Enforcement Decree of Labor Union Act. Article 9 (2) of the Enforcement Decree of Labor Union Act prescribing the notification has no lawful ground of delegation in the Labor Union Act, which violates the principles of the Constitution such as the principle of legislation by the Congress, the principle of delegated legislation. So the outlawed trade union notification of the Labor Ministry can not be justified. Furthermore, such notification of the Labor Ministry also violates the principle of prohibiting the excess because there are more less alternatives than denying the reality of the KTU by notifying that it shall be outlawed trade union. So the outlawed trade union notification to the KTU is illegal and should be null and void.