필수유지업무결정의 성격과 판단기준

Abstract

This article examines the basic concept of minimum services and the underlying ideas of introducing the regulations of minimum services in Korea, problems about the legal formulations of the concept of minimum services, and the related issues on criminal law(esp. nulla poena sine lege). In this, it attempts to identify the relevant considerations for the decision of minimum services and suggest the legally adequate and practically applicable criteria for the decisions of minimum services. In Korea, The revised “Trade Union and Labor Relations Adjustment Act”(TULRAA)(2006) has abolished the compulsory arbitration and introduced the regulations of minimum services for the essential public services. In TULRAA, the concept of minimum service is formulated as “essential maintenance work”. According to TULRAA, the parties in labor relation shall conclude an agreement on essential maintenance work in writing(Article 42-3). If an agreement is not concluded, both or either of the parties in labor relations shall make an application for the Labor Relations Commission(LRC) to decide minimum services. The decision of the LRC shall include “necessary and minimum level of works, jobs classified as the essential maintenance work and number of workers to provide the essential maintenance work, etc.”(Article 42-4). Although there is the duty to conclude the agreement, many employers make an application for the LRC to decide the minimum services without substantial negotiation with trade union. And the LRC rules that it can decide the essential maintenance work as its own authority regardless of the negotiation between the parties. It is seriously problematic that the LRC ignores the principle of priority of the agreement of minimum services between the parties. The situation is not different from the compulsory arbitration, and the similar problems of the compulsory arbitration are haunting. Furthermore the LRC has the idea that the determination of necessary and minimum services to be maintained is essentially about interests dispute(as opposed to rights dispute) such as the arbitration ruling concerning peripheral terms and conditions of employment. Thus the LRC determines that the LRC’s rulings which, arguably, overprize the requirements of necessary and minimum services do not violate law and thus appeals against the ruling are not to be approved. But the balance of collective action rights in the Constitution and Public interest is a legal issue not about interests disputes but about collective rights disputes. Decisions of minimum services should be scrutinized from the viewpoint on the adequate protection of collective action rights. Therefore the standards in deciding the adequate requirements of necessary and minimum services without neutralizing collective action rights are an essential criteria of the legality of decisions of minimum services. According to the ILO, minimum services should meet at least two requirements. First and foremost, it should genuinely and exclusively be a minimum service, that is, one which is limited to the operations strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure by collective action. Second, since this system restricts one of the essential means of pressure available to workers to define their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service. Therefore the determination of minimum services must apply the principle of proportionality. For this reason, “essential maintenance work” must meet the substantial definition of minimum service and “jobs classified as this work, levels of works to be maintained, and number of workers to operate these jobs” each must be subject to rigorous judgement criteria: “essential and minimum” requirements.