교섭창구 단일화 제도의 위헌성 여부와 합헌적 해석 - 외국 법제와의 비교법적 검토를 중심으로

The plural union system was introduced in 2010 following long-standing demands from the labor community, accompanied by the bargaining windows simplification system to accommodate the demands from management, the constitutionality of which has been disputed since its introduction. Although the Constitutional Court of Korea has found the bargaining window simplification as constitutional twice, all arguments presented as the basis for the affirmation of its constitutionality seem to lack rationality. The purpose of this paper is to examine the unconstitutionality of the simplification of bargaining windows system and to seek ways to interpret the system in alignment with the Constitution. A comparative review of the collective bargaining system of major advanced countries is adopted as a methodology of the study. As shown below, compared to collective bargaining in other countries such as the United States, Germany, France, and Japan, South Korea’s simplification of bargaining windows system excessively restricts the collective bargaining rights of minority labor unions, and is thus unconstitutional. ① In the case of the United States, democratic legitimacy is procedurally guaranteed, while the scope of the duty of fair representation is wider than that of Korea. ② In Germany, minority labor unions also have their own right to collective bargaining; yet, the applicable collective agreement is limited under the principle of one workplace one collective agreement so as to ensure the stability of labor relations. In that respect, the German model is different from Korea, which fundamentally excludes minority trade unions’ right to collective bargaining. In addition, the German model requires the procedure that properly reflects the demands from minority unions before declining a collective agreement reached by minority trade unions on the grounds of a collective agreement reached by majority unions, distinguishing itself from Korea’s precedents that exclude minority unions from the confirmation vote for a tentative agreement. ③ The French model of bargaining window simplification is much more constitutional than the Korean counterpart in that it values procedures that reflect workers’ intentions and substantively guarantees a minority union’s right to participate in collective bargaining and the right to strike independently. ④ Under Japanese law, several labor unions are allowed to engage in individual and autonomous collective bargaining, namely marked by the plural union system and the collective bargaining right of minority unions. The current Korean model of bargaining window simplification requires improvements across several aspects for its operational compliance with the Constitution. ① To make way for minority unions to engage in autonomous individual bargaining, the employer’s disagreement should be deemed as illegal or voided in accordance with the doctrine of abuse of the right to consent. This is especially critical when minority labor unions need to exercise their own right to collective bargaining. ② A legal doctrine that actively acknowledges the necessity of separating bargaining units is essential to enable unions to operate as distinct bargaining units from the perspective of effectively guaranteeing the collective bargaining rights of minority unions. ③ It is necessary to expand the duty of procedural fair representation by guaranteeing the procedural right of minority labor unions to participate in the confirmation vote for a tentative agreement and including the prohibition of arbitrariness and non-fidelity, in addition to the prohibition of discrimination. Also, an interpretation that broadly recognizes the duty of substantive fair representation is necessary as well. ④ An interpretation that guarantees the right to independent industrial action for minority unions may be rendered under certain circumstances.