Case on Korea Professors Union

[2015Hun-Ka38, August 30, 2018] * First Draft

In this case, the Constitutional Court held that Article 2 of the Act on the Establishment, Operation, Etc. of Teachers’ Unions (the “Teachers’ Union Act”), which defines the subject to whom the Teachers’ Union Act applies as teachers referred to in Article 19 (1) of the Elementary and Secondary Education Act, thereby denying the university faculty who are regulated by the Higher Education Act the right to organize, infringes upon their right to organize and, therefore, does not conform to the Constitution.

Background of the Case

The movant is a national-level union with teachers of schools under the Higher Education Act as its members. The movant sent an application to establish a labor union to the Ministry of Employment and Labor on April 20, 2015, but the application was not granted on April 23, 2015, on the ground that Article 5 of the Trade Union and Labor Relations Adjustment Act (the “Labor Union Act”) and Article 2 of the Teachers’ Union Act limit the scope of joining the teachers’ union to the teachers under the Article 19 (1) of the Elementary and Secondary Education Act and, therefore, disallow creating such a union of teachers under the Higher Education Act.

The movant filed an administrative lawsuit against the Ministry of Employment and Labor to revoke the disposition above, and raised a motion to request a constitutional review on Article 5 of the Labor Union Act and Article 2 of the Teachers’ Union Act during the lawsuit. Accordingly, the requesting court referred the case to the Court on December 30, 2015.

Subject Matter of Review

The subject matter of review in this case is whether Article 2 of the Act on the Establishment, Operation, etc. of Teachers’ Union (amended by Act No. 10132 on March 7, 2010) (the “Instant Provision”) violates the Constitution.

Provision at Issue

Act on the Establishment, Operation, etc. of Teachers’ Union (amended by Act No. 10132 on March 7, 2010)

Article 2 (Definition)

The term “teacher” means a teacher referred to in Article 19 (1) of the Elementary and Secondary Education Act

Summary of the Decision

1. Whether the infringement upon the right to organize has violated the Constitution should be examined in two categories: university faculty members who are educational public officials and faculty members who are not.

First, the right to organize that the Instant Provision prevents the university faculty members who are not educational public officials from enjoying is an essential and fundamental right among the three labor rights guaranteed by the Constitution. The legislative purpose of the Instant Provision to recognize the union of elementary and secondary school teachers in service to help them secure independence and autonomy is deemed legitimate. However, it is hard to recognize the legitimacy of its legislative purpose or the appropriateness of means, considering the fact that it limits the qualification to establish or join a union to elementary and secondary school teachers and, thus, entirely denies the university staffs who are not educational public officials the right to organize, which is one of the basic labor rights. Even if it is recognized that the job of university staffs has a distinctive nature different from that of ordinary workers and elementary and secondary school teachers, it is also possible to grant the university staffs the right to organize while, for example, placing the rights that their union is entitled to exercise under a strong restriction compared with other unions. Therefore, outright denial of the right to organize cannot be considered as a restriction that is limited to the minimum extent necessary. Moreover, the university staffs are subjected under great disadvantages if they have to make only individual efforts to improve their

working condition without being able to resort to the right to organize, under the circumstances where there has been multi-layered changes in the college community lately and increasing demands for a better social and economic status of university staffs. Thus, the Instant Provision violates the principle against excessive restriction.

For the university staffs who are educational public officials, taking into account of both the characteristics of educational public officials’ work and the essence of the Article 33 Section 1 and 2 of the Constitution, denying them the three labor rights entirely is unjustifiable and excessive beyond the scope of the legislative formation power and, therefore, violates the Constitution.

2. Although the Instant Provision infringes upon the right of the university staffs to organize and violates the Constitution, declaring it unconstitutional and instantly void would remove the ground for the teachers under Article 19 (1) of the Elementary and Secondary Education Act to establish teachers’ unions, and therefore create a legal vacuum which makes it difficult to serve the legislative purpose of contributing to the independence and autonomy of the teachers’ unions. Furthermore, as for the removal of unconstitutionality of the Instant Provision, it is at the discretion of the legislature within the purpose of the Court’s decision to consider the nature of the university staffs and reasonably define the scope of their right to organize for the removal of unconstitutionality of the Instant Provision, before ridding the Instant Provision of the unconstitutionality. Thus, the Instant Provision shall remain effective and applicable until an amendment is made.

Summary of Dissenting Opinion of Two Justices

As the denied right of the university faculty members to organize is attributed to the discrimination resulting from the Instant Provision, which limits the teacher under the Teachers’ Union Act to the teacher referred to in the Elementary and Secondary Education Act, the issue of this case is whether the Instant Provision violates the principle of equality. However, not only are the university faculty members guaranteed by the Constitution and the laws their job security and their working conditions such as wages, but they are also granted independence and autonomy as distinguished from the elementary and secondary school teachers, through institutional assurance for their academic freedom, and are involved in the

decision making process for overall educational management as principal members of the college autonomy. They can also join a political party and participate in an election campaign, unlike the elementary and secondary school teachers. This suggests that they can widely engage themselves in building social policies and systems through political activities and researches for various government committees and institutes and find ways to promote their social and economic status in the name of an expert group or professors’ association that is different from a union. Therefore, based on the reasons aforementioned, the Instant Provision does not violate the principle of equality.

* This translation is provisional and subject to revision.