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A Study on Essential Minimum Services System in the Trade Union and Labor Relations Adjustment Act

  • DONG-A LAW REVIEW
  • 2011, (50), pp.447-486
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

김동훈 1

1영산대학교

Accredited

ABSTRACT

According to the Labor Union Law and the Labor Mediation Law (hereinafter referred as ‘the Labor Union Law’) passed the Assembly plenary session on December 22, 2006, as one of actions for push for legislation of bills on the advancement of labor relations, the mediation system by authority for essential businesses for the public interest was abolished, the aviation transporting business and the blood provision business were added to the category of essential businesses for the public interest instead and the system of essential works to be maintained was adopted for essential businesses for the public interest. Also, according to the law, substitutional work and subcontract which were normally banned were prohibited from being applied to essential businesses for the public interest, and a permission for it would be given only in case participants in a walkout was 50% or below among the total employees. For these, relevant regulations for the system of essential works to be maintained was enforced from January 1, 2008, and the government revised the Enforcement Ordinance for the Labor Union Law on November 30, 2007 to specifically stipulate the range of essential works to be maintained for each of 10 essential businesses for the public interest. However, since the mediation system by authority for essential businesses for the public interest basically infringed on the employees' right to engage in collective actions and caused a violation of the constitution, the Labor Union Law and the Labor Mediation Law was revised with the objectives of resolving the violation of the constitution. But, this revision adopted the system of essential works to be maintained and the substitutional work system and, to make the problem worse, blocked the opportunity to perform a fair strike action that could be performed unless the Labor Relations Board submits for a mediation by authority according to its operation and interpretation, and this brought the possibility of degeneration of realization of basic labor rights. Though conclusion of an agreement on essential works to be maintained is a pending issue for each workplace among essential businesses for the public interest, there are huge confusion among them in the absence of specific standards and guideline for the system of essential works to be maintained was introduced to Korea for the first time, and there has been no legislative precedents which fit this situation. Thus, we would like to review the reasons of introduction of the system of essential works to be maintained and its meaning, content and application range, and then, would like to put things in order since there is no systematic organization in relation to a decision on which essential business for the public interest should be affected, to which extent service has to be maintained and relevant appeal procedures. Then, we would like to review legislative inadequacy and problems by reflecting on the movements made so far. And, we will point out problems in legal interpretation due to the short period of enforcement of the system of essential works to be maintained and the absence of accumulated judicial precedents, and then, suggest alternatives to promptly establish the system of essential works to be maintained and to promote the harmony between assurance of basic labor rights in workplace for essential businesses for the public interest, including the right of strike, and pursuit of the public interest.

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