비정규직 노동자의 단체교섭권과 형사면책

Since 2000s, Korean Government and courts have ruled that construction workers’ unions did union activities to coerce the subcontractors and the main construction company (the principal) to afford facilities for union representatives or hire union members. The Government and courts have argued that demands for the employment of union members is not an appropriate aim of collective bargaining, as it does not relate to “working conditions.” Further, they have considered that legitimate collective action such as staging of rallies or reporting violations of the Occupational Safety and Health Act to pressure the employer amounted to a “notice of harm” under criminal acts. This paper critically reviews such court decisions by examining the following issues: Firstly, the reason why the construction workers’ unions relied on taking such actions was due to the refusal by a recalcitrant employer to honor a collective agreement negotiated between the unions and employers’ federation or the principals, in particular, a provision stating that “employers shall do their best to hire as many members of the Union as they can.” Such provisions are not unusual in construction sectors, where employment is usually temporary and often short-term, in many jurisdictions. Secondly, the activities such as staging rallies in front of construction sites and filing complaints against the breach of the relevant labour protection laws Act should be regarded as the legitimate union activities and collective bargaining. It is clear that the ILO recognizes a universal human right to engage in collective bargaining and collective action, emanating from the right to freedom of association. In particular, The ILO takes the position that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98. The voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association. Further, the Government and courts should ensure that all workers including precarious workers fully enjoy their rights to freedom of association and collective bargaining and that any restrictions on the exercise of such rights should comply with the strict requirements of Article 22, Paragraph 2 of the International Covenant on Civil and Political Rights.