근로자 개인정보처리의 근로자대표 위임 가능성

Employees have a dual dependency in his or her relationship with the employer. One is the dependency that stems from their employment contract, and the other is the dependency that stems from information asymmetry. Employees are subject to considerable pressure due to information asymmetry, which thereby leads them to inspect themselves and eventually come to a voluntary submission. Our personal data Protection Act allows such information asymmetry, provided that there is consent from the employees for the processing of their personal data, including electronic labor monitoring. But it is not easy for an employee to refuse to consent when the employer has an advantage of substantial power over the employee. That is to say, the validity of an employee's consent is questionable. Labor law operates under the premise that individual employees are weak, but groups of employees are strong. Therefore, if the validity of an employee’s consent is questionable, one method to be considered is collectively processing the gathering and using of employees’ personal data. Before considering that, there lies an issue that needs to be decided first, which is the constitutional nature of self-determination for personal data. If self-determination for personal data has a legal nature far from delegation, a collective decision based on consent from representatives of employees or a majority of employees will lose its legal basis. The constitutional nature of self-determination for personal data is argued to be threefold. The first is the secrecy or freedom over one’s personal life or the right to privacy. However, not all personal data of an employee falls under the area of privacy, and to consider giving up the liberal nature of secrecy and freedom of personal life, it must be of voluntary nature. This is unacceptable when in a position of questioning the validity of consent. The second is the personal rights. This argument, conceived in that labor is inseparable from a person’s character, is also the view of the Supreme Court. However, an employee’s personal data is not necessarily always associated with personal character and the nature of personal rights is also the essence of human rights. Therefore, it is difficult for employees to delegate their personal rights themselves or restrict the rights within the relationship with other fundamental rights. The third view is that the right to self-determination for personal data is an independent fundamental right, which is not listed in Article 37 paragraph 1 of the Constitution. This is the view of the Constitutional Court. The reason for this is that as the nation develops from a passive to an active welfare state, their function requires massive information collection. This may have side effects, as the existing freedom and secrecy of personal life, and personal rights have been proven to be insufficient in protecting fundamental rights. This paper supports the third view. In considering the collective decision-making method when processing the employees’ personal data, there exist the following three methods: employment rules, collective bargaining, and the decisions of the Labor-Management Conference. First, if it is listed in the employment rules, the problem arises as to the basis for forcing employees who are not in favor of it. However, so long as employment rules gain normative power, they can be enforced by law. Second, when it comes to collective bargaining, an issue arises as to whether it is a mandatory negotiation or not. As processing of personal data is a contractual condition, it may be recognized as a mandatory negotiation. Third, the range of subject matters put forward for discussion or resolution at the Labor-Management Conference may be considered. It is recommended to revise the Act on the Promotion of Workers' Participation and Cooperation to regard matters concerning personal data of employees to be subject to mandatory discussion or resolution. However, even if this cannot be done, they may discuss matters concerning the installation of surveillance equipment under Article 20 Paragraph 1 of the same Act or other matters concerning labor-management cooperation.