쟁의행위 개념의 체계적 이해

Abstract

The purpose of this article was to form a systematic understanding of the concept of industrial action as prescribed under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as “Trade Union Act”), and the conclusions drawn therefrom are described below. First, “improvement of working conditions” stipulated under Article 33 of the Constitution include: (i) actual working conditions; (ii) matters associated with working conditions; and (iii) matters closely related with the formation of working conditions, including certain collective labor relations (i.e., full-time union officer system and check-off system). Second, “justifiable dispute actions by workers” where employee’s lisbilities are exempted according to the Article 3 and 4 of the Trade Union Act refer to actions that a trade union or an organization equivalent thereto take against an employer or an employer’s organization for the purpose of making or demonstrating its claims to maintain and improve working conditions. To be specific, the aforementioned actions include any actions that obstruct a normal operation of business by means of “suspension of provision of labor and using it as a leverage to maintain and enforce pressure against an employer.” An organization equivalent to a trade union includes: (i) an organization that meets all of the requirements under Article 2 subparag. 4 of the Trade Union Act, yet whose establishment is not reported as a trade union in accordance with the same Act; (ii) an organization that meets the requirements under the main text of Article 2 subparag. 4 of the same Act, but whose establishment cannot be reported due to not satisfying the requirements stipulated as items (a) and (d) under the proviso of the Article thereof; and (iii) temporary strikers. Third, “broad union activities” (A) are largely classified into two categories: “internal union activities” (A1) and “external union activities” (A2). Specifically, “collective bargaining” (B), “collective actions” (C), and “other union activities” (D) fall under (A2). Moreover, (C) are divided into industrial actions that have the elements of “obstruction of normal operation of business” (C1), collective actions that have the elements of “obstruction of normal operation of business” (C2), and collective actions that have no element of “obstruction of normal operation of business” (C3), among which (C2) can be referred to as a “collective labor dispute.” Fourth, whether the elements of “obstruction of normal operation of business” exist should be determined by comprehensively taking into consideration the following facts and circumstances: nature of business where the concerned actions are taking place (such as whether the nature of business falls under the service sector where giving customers a calm and peaceful impression is emphasized), number of participants, contents of expressions shown, characteristic of method used, purpose or intention of the said actions, other circumstances at the time when such actions occurred, etc. Fifth, inasmuch as the concept of industrial actions by workers and the justification thereof delineated in judicial precedents overlap in regards to the “independent factor” and “purposive factor,” the overlapping parts need to be excluded. Accordingly, if excluding the overlap, contents pertaining to the justification of industrial actions by workers should be modified as follows: “The relevant industrial actions shall not only be justified in accordance with laws in its timing and procedure, but also the methods taken shall be within the scope of fair practices that do not tolerate any anti-social activities involving violence or sabotage.”