근로의 권리

Abstract

This article aims at introducing briefly but critically the right to work prescribed by Article 32 of the Constitution for ordinary citizens or students interested in labor issues. In the realm of basic labor rights, the gap between constitutional norm and reality is very large, but it has not received much attention from constitutional scholars. That’s why I’m trying to write a lecture-style essay on the right to work. I tried to carry out two main tasks in this article. First of all, based on the analysis of theories and precedents, I wanted to clarify the subject or scope of the right to work by diagnosing the legal nature of the right to work. Next, I tried to reveal what is normatively requested by Article 32 of the Constitution, and how these requests are betrayed in labor reality. The results can be summarized as follows: First, the right to work has both the social character of the right to make active demands for the realization of human dignity and the liberal character of the passive prevention of human dignity infringement. Second, the right to work should be understood as a specific right that has the effect of binding state power directly, rather than an abstract right that can only be realized by legislation or one of the political programs or goals. Third, the core of the right to work is the right to request the state to provide working opportunities, and, if it is difficult to provide working opportunities, then to guarantee minimum cost of living to those people with no job despite their will and ability to work. Fourth, the right to work also includes the right of workers who already have jobs not to be unfairly deprived of their right to work and to have at least minimum working conditions guaranteed so that human dignity should not be violated. However, unwarranted deprivation of the right to work has become a daily routine. Also, the rapid increase of labor market flexibility, such as the institutionalization and expansion of the flexible working hours system and non-regular employment, makes constitutional guarantee of human dignity an empty promise. Fifth, the guarantee of optimum wages is essential to realization of the right to work, but the wage level in the labor reality falls far short of the constitutional demand, and what is worse, the proportion of workers paid minimum wage or less is increasing significantly. In addition, the wage gap between men and women and between regular and non-regular workers is so wide to directly violate the principle of equal pay for work of equal value. Sixth, though freedom, equality, participation and self-determination must be assured at the labor site in order to guarantee human dignity of workers, even the core provisions of the Labor Standards Act, such as dismissal regulations and legal working hours, are not applied to small businesses. Moreover, calls for the enforcement of safeguards to protect the lives and safety of workers and punishment of companies responsible for severe and catastrophic industrial disasters remain unanswered echoes. The Constitutional guarantee of the right to work is not working in real-life institutions or practices. Narrowing the gap between the constitutional norms over the right to work and the reality as soon as possible should be a top priority for the government, which allegedly advocates “respect for labor.”