유니온 샵(union shop) 조항과 소극적 단결권 - 헌재 2005. 11. 24. 2002헌바95․96, 2003헌바9(병합) 결정을 평가하며 -

Abstract

Under article 81(2) of the Trade Union and Labour Relations Adjustment Act (TULRAA), a labor union(dominant union) which laborers join more two-thirds of them in a workplace can make an Union Shop Agreement. 'The union shop agreement' in TULRAA means a employer agrees to hire either labor union members or nonmembers but all non-union employees must become union members within a specified period of time or lose their jobs. There were some constitutional appeals of this clause, the Constitutional court ruled that the clause is constitutional. The union shop agreement is originally for protecting the labor's right to organize. Through the union shop agreement, the employee can bargain with the employer as equal footing. But it means not that the employer can dismiss non-union employees. Whether join or not, it depends on labor's freedom as constitutional rights. However, compulsion of subscription to dominant union can be allowed. But compulsion of subscription to dominant union by Acts is likely to violate the constitution due to infringement of labor's rights to select an union or not to organize an union. The Constitutional court determined that the right not to organize comes from general right to freedom of action from the right to pursue happiness in article 10 of the Constitution or freedom of association in article 22(1). But the right to organize is especially provided in article 33(1) of the Constitution separated from freedom of association in article 22(1) of the Constitution. It intends to protect not only the right to collectively organize but also the right to personally organize. So the right not to organize comes from article 33(1) of the Constitution. Following the article 81(2) of TULRAA, there is only dominant union which can negotiate with the employer in workplace, and the employees in that workplace should join that dominant union by union shop agreement. Therefore, the union shop clause infringes on labor's rights to select an union or not organize an union.