소수노조의 단체교섭권도 옹호하는 교섭창구단일화론 ― 헌재 2024. 6. 27. 2020헌마237 등에 대한 평석을 겸하여 ―

This article argues that the current system of procedure for determining bargaining representatives infringes on the collective bargaining rights of minority unions. The conclusions of this article are as follows First, the right to self-determined association, collective bargaining and collective action, i.e. ‘the three fundamental labor rights’ in Article 33(1) of the Constitution of the Republic of Korea is the key foundation that makes it possible for “the system of forming working conditions based on the self-determination of a worker”, which cannot be achieved due to the overwhelming supremacy of employers based on property rights in individual and personal contractual relationships, to become “the system of forming the terms and conditions of employment collectively and autonomously”. Second, the right to self-determined collective bargaining from a constitutional standpoint, is the right of a trade union, free from the interference by social forces such as the state, including other trade unions and excluding umbrella organisations, etc., the labor organisations to which it belongs, to make self-determined decisions on collective bargaining agendas on matters concerning itself and its members, etc., and to enter into collective bargaining and agreements with an employer or an employers' association on collective bargaining agendas, etc. Third, if there is a so-called majority union in a establishment or workplace, in practical terms, the current procedure for determining bargaining representatives prevents minority unions from directly participating in collective bargaining. As a result, the self-determined collective bargaining rights of minority unions are meaningless. It infringes upon the essential content of the self-determined right of minority unions to bargain collectively. Forth, the current system is also contrary to the principle of proportionality. In particular, necessity is not met because the legislator could have adopted an alternative legislative measure that would have had the same effect and been less intrusive on fundamental rights, viz. joint bargaining representation, as the main system of procedure for determining bargaining representatives, but chose to adopt it as a subsidiary provision just in case the majority union did not become the bargaining representative. Furthermore, balancing is not met because it results in the significant limitation of fundamental rights that is intolerable to minority unions. Finally, this article proposes an amendment to the Trade Union and Labor Relations Adjustment Act on ‘the joint bargaining delegation system’, alternative legislative action.