소극적 단결권과 유니온 숍제

This article argues discusses the significance, level of protection and grounds for the fundamental right of negative freedom of association. Additionally, it discusses employees' negative freedom of association in Germany and Korea. It also examines the unconstitutionality of the proviso in Article 81 (1) 1 of the Trade Union and Labor Relations Adjustment Act (hereafter 'the Trade Union Act'), which regulates the union shop systems. Based on the discussion, this paper then suggests a direction for improving union shop systems. In Germany, the fundamental right of negative freedom of association(hereafter ‘employees’ negative freedom of association') is based on the freedom of association specified in Article 9, Paragraph 3 of Basic Law for the Federal Republic of Germany. Established precedents from the Federal Constitutional Court('BVerfG') and consistent rulings of the Federal Labor Court(‘BAG’) provide a clear ground for this right. Nevertheless, given the historical establishment and progression of the right to organize, the constitutional worth and status that unions's active right to organize bears compared to employees' negative freedom of association, and the fact that the right to organize provides a constitutional basis for employees' participation in management, employees' negative freedom of association is an inferior fundamental right compared to the fundamental right of unions' positive freedom of association. Consequently, the so-called “Mirror Image Theory”(i.e. 'Spiegelbildlichkeitsargument') that the fundamental right of negative freedom of association is a mirror image of the fundamental right of positive freedom of association, and should be protected at the same level as the active right to organize is not convincing. Likewise, this can be equally applied to the passive right to organize under Constitution of the Republic of Korea(hereinafter 'the Constitution'), notwithstanding the structural differences between the right to organize under Basic Law for the Federal Republic of Germany and the three labour rights under the Constitution. Therefore, according to the Constitution, in a situation where there is a conflict between employees' negative freedom of association and the fundamental right of unions's positive freedom of association, the latter shall be given priority protection. Moreover, the proviso in Article 81 (1) 1 of the current Trade Union Act, on which union shop agreements is based, restricts employees' negative freedom of association and the fundamental right of worker's right to work. However, the proviso does not infringe the essential content of these fundamental rights, nor does it violate the principle of proportionality, and is therefore constitutional. However, the proviso restricts slightly the employee's right to work since it is tied to the employer's dismissal of employees according to a union shop agreement with a dominant union. Therefore, this paper proposes that the proviso in Article 81 (1) 1 of the Trade Union Act should be amended in line with the three fundamental labour rights set out Article 33, Paragraph 1 of the Constitution, which regulates “the maintenance and improvement of working conditions” as an essential component of the three fundamental labour rights. The main points of the amendment are as follows: If the dominant union fails to “maintain or improve working conditions” or significantly loses its autonomy, it is essential to prohibit the dismissal of employees on the grounds of withdrawing from the dominant union, even if they no longer join any other unions after withdrawing.