Case on the Full Restriction of the Three Basic Labor Rights of Registered Security Guards

[2015Hun-Ma653, September 28, 2017]

In this case, the Constitutional Court held that the part applicable to ‘labor campaigns’ of Article 66 Section 1 of the State Public Officials Act in Article 5 Section 4 of the Registered Security Guard Act, which prohibits labor campaigns by applyingmutatis mutandisArticle 66 Section 1 of the State Public Officials Act, infringes the three basic labor rights of the complainants and thus does not conform to the Constitution, and ordered that the above provision continue to be applied until amended by December 31, 2018.

Background of the Case

The complainants work as registered security guards for Korea ○○○○○, Ltd. On June 19, 2015, the complainants filed a constitutional complaint, claiming that by applyingmutatis mutandisArticle 66 Section 1 of the State Public Officials Act with regard to the service of registered security guards, and thereby prohibiting labor campaigns, Article 5 Section 4 of the Registered Security Guard Act violates the complainants’ fundamental rights.

Subject Matter of Review

The subject matter of review in this case is whether the part applicable to ‘labor campaigns’ of Article 66 Section 1 of the State Public Officials Act in Article 5 Section 4 of the Registered Security Guard Act (amended by Act No. 10013 on February 4, 2010) (hereinafter referred to as the “Instant Provision”) infringes the fundamental rights of the complainants.

Provision at Issue

Registered Security Guard Act (amended by Act No. 10013 on February4, 2010)

Article 5 (Appointment, etc. of Registered Security Guards)

(4) Article 57, Article 58 Section 1, Article 60 and Article 66 Section 1 of the State Public Officials Act and Article 18 of the Police Officers Act shall applymutatis mutandisto the service of the registered security guard.

Related Provision

State Public Officials Act (amended by Act No. 8996 on March 28, 2008)

Article 66 (Prohibition of Collective Activities)

(1) No public official shall engage in any collective activities for any labor campaign, or activities other than public services: Provided, That those who are actually engaged in labor shall be excluded.

Summary of the Decision

1. Whether the Three Basic Labor Rights Were Infringed

As a rule, a registered security guard must be guaranteed the three basic labor rights prescribed under Article 33 Section 1 of the Constitution, being a regular worker and not a public official. A registered security guard merely performs the duties of a police officer within the scope necessary for the purpose of security within a restricted area, and is more vulnerable when it comes to guarantee of status, compared to public officials. Moreover, because registered security guards who work in places other than State agencies or local governments are guaranteed a legal status lower than those employed at

such workplaces, not to mention public officials, it is highly necessary to grant these guards the three basic labor rights.

Even if registered security guards are granted the right to association that does not accompany direct action and collective bargaining, we cannot conclude that this will interfere with maintaining safety in the relevant facilities. The Constitution stops at restricting only the right to collective action in the case of workers employed by key defense industries, while the Security Services Industry Act merely prohibits special security guards, who carry weapons and perform security services for key state institutions, from going on strike.

Since registered security guards work in specific guarded areas and exercise a limited scope of authority required for maintaining the security of said areas, the public nature or social impact of the work of a registered security guard cannot be compared to those of a soldier or a police officer. Nonetheless, the Instant Provision uniformly imposes a restriction on the three basic labor rights of all registered security guards, to the same degree as soldiers or police officers.

Accordingly, the full restriction of the three basic labor rights of registered security guards by the Instant Provision is a violation of the rule against excessive restriction, and thus infringes the three basic labor rights of the complainants.

2.Order for Continued Application Following a Decision of Nonconformity

The unconstitutionality of the Instant Provision lies in the fact that it fully restricts the three basic labor rights of all registered security guards. It is at the discretion of the legislator to remove this unconstitutional element by taking into account the specific duties, nature of the workplace, labor conditions and guarantee of status of registered security guards. There are concerns that a declaration of the simple unconstitutionality of the Instant Provision and the immediate loss of its effect will create disorder, by allowing registered security guards that should be subject to a restriction of the three basic labor rights to

exercise them in their entirety. Therefore, the Court delivers a decision of nonconformity to the Constitution regarding the Instant Provision, but orders that the provision continue to be applied until amended by December 31, 2018.