노조의 존립ㆍ자주성의 보호와 그 모순 = The Protection of ExistenceㆍAutonomy of Union and its Contradiction

다국어 초록 (Multilingual Abstract)

The Korean Constitution guarantees the right of workers to organize and to bargain and act collectively. The Labor Relations and Conciliation of Labor Disputes Act(LRCLDA) forms the core of national policy that controls labor-management relations in private industry.
This article attempts to uncover certain contradictory characteristics of Korean regulation of the labor and industrial relations field with regard to the protection of union autonomy: union shop, prohibition of union membership to employees representing employer, and prohibition of payment to full-time union officer.
The LRCLDA permits an employer and a union having majority support to make an agreement requiring all employees to become union members(union shop). According the Supreme Court an employer can fire a member for failure to maintain membership in good standing unless that member has been expelled from the union.
Because of the vague language of the Act and the conflicting interests it purports to resolve, courts had great difficulty in applying its provisions. The courts have been faced with the paradoxical task of applying the provisions of the Act, honoring the spirit of collective bargaining while at the same time giving freedom to the individual member of the union.
Under the LRCLDA employees representing employer have no statutory right to be members of a union. Supervisors who maintain membership may encounter problems of divided loyalties when they act as employer representatives in collective bargaining. On one hand, union membership carries with it a responsibility to abide by union rules. On the other, as the employer"s representative, supervisors often must take positions contrary to union interests. These allegiances can collide when a union disciplines a supervisor-member who has violated union rules while representing his employer.
In the past decades, however, there has been a continuous decline in union density in Korean private sector workforce. Therefore the union seeks to increase the member whether the employee representing employer is or not.
And the Act prohibits employers to grant paid leaves of absence to employees to work full-time for their union(full-time union officer). This Provision will be in force on 1. 1. 2007.
Collective bargaining in Korea is mainly conducted at the level of an undertaking, i.e., between the employer and an "enterprise union." Accordingly the employer representative argue that payments to union full-time officer can corrupt labor-management relations and lead union representatives to pursue their own interests over those of their union members.
After identifying numerous conflicts between the LRCLDA and labor-management exercises, the article explains how and why a legislative accommodation for union is not appropriate given the history in Korean labor law of accommodating contradictory interests (freedom of association and collective bargaining) that may conflict with optimal labor policy.
By detailing the experiences of several conflicts between the law and practices, the article seeks to demonstrate that current statutory and constitutional doctrines fail to adequately protect both the individual employee and the union.
With the LRCLDA and the Supreme Court, it seems as if the right of workers to organize is no longer the central issue of labor law. Industrial relations has become more than simply the conflict between "workers" and "capital." Instead, courts has to settle disputes between workers and unions as well. It is now the responsibility of the courts and the LRCLDA to settle conflicts within the labor movement that has long gone on outside the purview of legal institutions.

목차 (Table of Contents)

• Ⅰ. 문제의 제기
• Ⅱ. 유니언 숍 협정
• Ⅲ. 사용자 또는 그의 이익을 대표하여 행동하는 자의 참가
• Ⅳ. 노조전임자에 대한 급여지급 금지
• Ⅴ. 요약 및 결론
• ＜Abstract＞