협약자치와 교섭창구단일화제도

The Korean Trade Union Act has introduced a system of determining the bargaining representative union as being fully allowed establish multiple unions since July 1, 2011. The system of determining the bargaining representative union has been controversial from the beginning, and it has still much controversy over the details in operation despite the stable settlement after the Constitutional Court's constitutional decision. This study starts from the review of the meaning of fundamental rights in three basic rights of labor for examining the constitutionality of a system of determining the bargaining representative union. The three basic rights of labor are one of the fundamental rights specifying the right to pursue happiness to realize of human dignity under the Constitution, which is essential to ensure the right to self-determination in the economic life of workers. It is ensuring collective self-determination through solidary activities among workers based on personal autonomy rather than on the right to live ideology. Therefore, it is necessary to consider two purposes which are ‘ensuring collective autonomy’ and ‘securing substantial equivalence through solidarity’ to understand the system of determining the bargaining representative union. This study believes that the system of determining the bargaining representative union is constitutional only if the system allows for autonomous individual bargaining, and autonomous determination of bargaining units, and it is also necessary to supplement the basis of justification in the decision of the representative bargaining union, and strictly interpret the duty of fair representation to minimize infringement of collective bargaining rights of minority trade unions. As the system of determining the bargaining representative union restricts minority unions’ rights for collective bargaining, it should be guaranteed to interpret allowing for autonomous individual bargaining, separating the bargaining units, and the duty of fair representation of the representative trade unions and users constitutionally. That is because these three systems are the pillars that support the constitutionality of the system which determines the bargaining representative union. The autonomous bargaining structure should take precedence in the procedure of collective bargaining. In the autonomous bargaining structure, labor and management should decide on their own whether all trade unions choose individual bargaining or representative bargaining through single bargaining channel. Such autonomous individual bargaining should be understood as principle and in its original form, and representative bargaining through representative trade unions should be viewed as exceptional and supplementary. Also, autonomous individual bargaining should be able to be determined by an agreement between labor and management without any restrictions until the deadline for determining the representative trade union. In addition, individual bargaining should be allowed freely through the exclusion of representative bargaining or the individual bargaining obligation in collective agreements by understanding the simplification of the bargaining channels as a relative compulsory regulation. There is a possibility that the system of determining the bargaining representative union will be operated unconstitutionally and does not fit for justice if the legitimacy of unifying the bargaining windows is found based on the efficiency of a simple bargaining system and the principle of majority decision. As the formation and restriction of fundamental rights are mutually strained, it is hoped that the system of determining the bargaining representative union could be operated constitutionally through unbiased fair interpretation.