公益事業 및 防衛産業體에 있어서 爭議行爲 制限에 관한 硏究
(A) Legal study on the Limits of the Industrial Action of Workers in the Public services and Defense Industries
공익사업 방위산업체 쟁의행위;
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This study suggests a proper polity for the relationship between labor and management of the public services like the defense industries after the right and status of the laborers who work at these companies were looked into in terms of the collective action right. In this regard, chapterⅠdefines the purpose, scope and methodology of the study, and in chapter Ⅱ the limitations on the strikes in public services companies are examined and compared with other countries's cases, and also the changes in the limitation on the strike are checked out. In chapter Ⅲ, the conception of and the problems with the compulsory arbitration system for major public companies, which are a important part in this study, the status of other countries' system, the view points of labor and management who are directly related to the strikes and possible improvement in the system of compulsory arbitration are looked into. In chapter 4, the conception and meaning of the limitations on the strike conducted by the "employees in major individual defense industries" and the problem and possible improvement are checked out, and in chapter Ⅴ a conclusion for this study is shown. The companies or the major defense industries, which implement important public services based on labor laws, play a important role in the influence on both the government and people in terms of labor and management issue as compared with individual companies. Labor unions insist that the system of compulsory arbitration on public services be eliminated in light of other countries's cases. They suggest as a alternative that major public services have in part the chance of collective action but be limited if necessary. While the existing system wields limitation on the whole "project", the suggested system uses it in part other than the project which must be implemented, which means that the third parties must be protected based on public welfare by putting limitation on the collective action, and so when the labor union go into strike they should make sure that their members don't threaten civilians and but help them work for their living. For the third party's life, safety labor and management already have agreement which became a practice in the sites. Such agreement on limiting on strike in part was turned out to be desirable by Freedom of Union Committee in ILO. It is said in this study that the article of limitation of clause 3, art. 33 of the constitution on laborers's collective action based on the reservations, who work at major defense industries, is likely to violate the constitution in light of the clause 2, art. 33 of the constitution which say that in case of the limitation on basic right the essential part the right could not be infringed and it should be revised. If the limitation on basic right like the limitation on strikes wants to be consistent with the principle of the non-excess, then it should seek for an appropriate purpose, and proper menas for the purpose, and minimize the danger from the limitation, and have a proportional relation between the limited basic right and the realized public interest. If it don't meet either one or the other, it could be considered unconstitutional. Collective action right is essential for a practical equity of labor and management to be secured because if the collective action right for laborers is not secured the union right or the corrective negotiation right is useless. Therefor it can be said that the most important right among the three rights of laborers is the collective action one. In this regard, as ILO indicated, other than national emergencies and wars, the limitations on strikes are limited at the least through an agrement between labor and management. This study, in conclusion, suggests that to get such idea into reality without any constitutional revision the clause 2, art. 41 of union and arbitration law is discarded, the scope of the public services in the 71 art. of the same law is extended, and the urgent arbitration is ordered by the President after like America an agreement between the President and Central Labor Committee reached.