파업권의 제한과 대상조치에 대한 검토

The Article 33(1) of the Constitution provides that “the workers have the independent right to organize union, bargain collectively and engage in concerted activities in order to enhance the working conditions, These rights can only be restricted when justified by constitutional grounds. When restricted, it must be provided with compensatory measures which have the same or similar effects the strike has. The compensatory measures should not be provided as an alternative to strike when strike is permitted on constitutional grounds, but be provided as a substitution for strike where the right to strike is restricted. Although the concept of compensatory measures is specified in ILO treaty, it is not well introduced in Korea and only the term of compensatory measures is referred by the Constitutional Court. While right to strike of the government officials and major defense industry can be restricted by the constitutional justification, it is not clear as to the right to strike on private school teachers, seamen, special guardmen, essential service and emergency mediation procedure can be restricted without constitutional justification. For government officials, teachers and emergency mediation procedure, the arbitration is provided as a compensatory measures. However, seamen, special guardmen, essential service are not provided with arbitration although the right to strike is restricted. It may be the fallback of our labor law system and amendment should be considered to provide arbitration as compensatory measures.