우리나라의 협약자율과 노동법

One of the characteristics of Korean industrial relations is that, at the background of enterprise level bargaining, the beneficiary of collective agreement is limited only to union workers of the enterprise, where trade unions are built or workers are joined a trade union. OECD report shows that the collective bargaining coverage rate of Korea is less than 15% comparing to OECD average rate, 32.1%. It means that in Korea the rest 85% of all workers are out of application of collective bargaining system. Specially the most workers of Korea, working in medium or small size company, are very hard to exercise the basic right to organize or to bargain collectively. So, I tried to research, in this paper, how we can improve the coverage rate by studying the collective agreement autonomy institution. In Korea, the Article 33 of Trade Union and Labor Relations Adjustment Act provides that: "(1) Part of rules of employment or labor contract which violates the standards concerning working conditions and other treatment of workers specified in collective agreement shall be null and void. (2) Matters not covered in a labor contract and the part which is null and void under paragraph (1) shall be governed by those standards of a collective agreement." This means that the parts of collective agreements with respect to working conditions shall apply compellingly to the relevant parts of the labor contracts and the rules of employments. So, in Korea, not only labor contracts but also rules of employment shall be correspondent to the collective agreement. And according to Article 92, A person who violates the essential contents of a collective agreement shall be punished by a fine not exceeding ten million won. It is like punishment to a person violating a law. And Article 35 (General Binding Force) of TULRA Act stipulates that: “When a collective agreement applies to at least half of workers of the same kind of job employed under ordinary circumstances in a business or workplace, it shall apply to the other workers of the same kind of job employed in the same business or workplace.” This general binding force of the collective agreement has the purpose to protect all workers under certain conditions, including non-union workers also, who would be forced to face the employer on the individual contract level, if there is no application of such a collective agreement. So, the nature of the collective agreement is exactly similar to the legal regulations, rather than a contract. To the workers, the collective agreement is a real and legal standards regarding working conditions. And if a collective agreement has the general binding force in the enterprise unit, i.e. the trade union(s) have representation of all workers in the enterprise-level bargaining, this agreement can be expressed by "a legal standard of working conditions" in favor of all workers. It can also contribute to the improvement of Korean collective agreement coverage rate. The application of the collective agreement to the non-unionist workers according to Article 35 of the TULRA Act corresponds with the public welfare of the constitution. And this constitutional accordance gives legitimation to the social prerogative of the collective agreement parties. So, the importance of Article 35 in the Labor Law needs to be reinterpreted as a general principle regarding the scope of the binding force of the Agreement. In this paper, the legal nature of the collective agreement and the relationship between the collective agreement and state legislation were also dealt with.