협약자치의 견지에서 본 단체교섭응낙 가처분결정인용에 관한 비판적 고찰

Abstract

If an employer refuses to take a part in bargaining without a justifiable reason, a trade union, in principle, is authorized to initiate industrial action. In addition, trade unions, with their rights being violated by unfair labor practices, may turn to the Labor Relations Commission for remedy request. However, since 2000, the Court has been granting trade unions’ motion for provisional disposition, forcing employers to comply with collective bargaining; and if an employer does not follow the provisional disposition, a penalty is imposed to ensure the substantiality of the Court’s decision. Yet, in a time where co-existence of multiple trade unions is permitted, granting such motion may accelerate dissolution and/or excessive generation of trade unions, along with induction of cross-organizational competition. Labor-management autonomy is only possible when a trade union is worthy of the name – nevertheless, granting the motion for provisional disposition to minor trade unions may result in hindering a unified maturation process of minor trade unions, rather than providing proper grounds for their existences. Besides, the Court cannot avoid criticism that such decision - granting the motion for provisional disposition of forced compliance with collective bargaining - is an inordinate intervention, violating the state’s obligation to maintain neutrality. Cases at issue can be adequately resolved by offering provisional disposition which acknowledges the status of a trade union. Therefore, based on the reasons above, it can be concluded that it is appropriate and necessary for the Court to withdraw its decisions of granting the motion for provisional disposition of forced compliance with collective bargaining, in order to achieve the true labor-management autonomy hereafter.