Korean Teachers and Education Workers’ Union Case

[27-1(B) KCCR 336, 2013Hun-Ma671, 2014Hun-Ka21, May 28, 2015]

In this case, the Constitutional Court held that Article 2 of the Act on the Establishment, Operation, etc. of Trade Unions for Teachers, which provides that only those who are defined by Article 19 Section 1 of the Elementary and Secondary Education Act as well as current teachers are entitled to form and join trade unions for teachers, does not infringe on the rights of teachers’ trade unions and dismissed teachers to organize and is thus not in violation of the Constitution.

Background of the Case

1. The complainant of this case, the Korean Teachers and Education Workers’ Union (hereinafter the “Korean Teachers’ Union” or the “KTU”), is one of the nationwide trade unions for teachers (hereinafter “teachers unions”) established by the Act on the Establishment, Operation, etc. of Trade Unions for Teachers (hereinafter the “Teachers Union Act”) on July 1, 1999, and the remainder of the complainants are members of the KTU who haveipso factoretired.

2. On September 23, 2013, the Minister of Employment and Labor ordered the KTU to revise the provision of its statute which allowed dismissed teachers to maintain their status as members of the union so that it can conform to Article 2 of the Teachers Union Act, and to prohibit the nine dismissed teachers from joining and engaging in the activities of the KTU, stating that the Ministry would outlaw the union in the event of its non-compliance thereof. In response, the complainants filed a constitutional complaint in this case with the Constitutional Court, claiming that Article 2 of the Teachers Union Act, Article 9 Section 2 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Union Act”), and the corrective order issued by the Employment and Labor Ministry mentioned above

infringe on their fundamental rights, such as their right to organize (2013Hun-Ma671).

3. The Minister of Employment and Labor notified the KTU that it would no longer be recognized as a trade union on October 24, 2013, citing the union’s failure to comply with the corrective order (hereinafter the “Outlaw Notification”). With an appellate case in which the KTU sought revocation of the Outlaw Notification pending, the union filed a motion requesting a constitutional review of Article 2 of the Teachers Union Act, and the Seoul High Court granted the motion to file for constitutional review with the Constitutional Court (2014Hun-Ka21).

Subject Matter of Review

The subject matter of review in case 2013Hun-Ma671 is whether (1) Article 2 of the Teachers Union Act (amended by Act No. 10132, Mar. 17, 2010) (hereinafter the “Provision at Issue”), (2) the portion of Article 9 Section 1 of the Enforcement Decree of the Teachers Union Act (amended by Presidential Decree No. 24447, Mar. 23, 2013) concerning Article 9 Section 2 of the same Enforcement Decree (hereinafter the “Outlaw Notification Clause”), and (3) the corrective order issued by the respondent on September 23, 2013 against the complainant KTU (hereinafter the “instant corrective order”) infringe on the fundamental rights of the complainants. Meanwhile, at issue in case 2014Hun-Ka21 is whether the Provision at Issue is in violation of the Constitution.

Act on the Establishment, Operation, etc. of Trade Unions for Teachers (Amended by Act No. 10132, March 17, 2010)

Article 2 (Definition) The term “teacher” in this Act refers to a person prescribed in Article 19(1) of the Elementary and Secondary Education Act. Provided that any dismissed persons who have made an application to remedy unfair labor practices to the Labor Relations Commission under the provision of Article 82(1) of the Trade Union and Labor

Relations Adjustment Act shall be regarded as teachers until a review decision is made by the National Labor Relations Commission pursuant to Article 2 of the Labor Relations Commission Act.

Enforcement Decree of the Act on the Establishment, Operation, etc. of Trade Unions for Teachers (Amended by Presidential Decree No. 23337, March 23)

Article 9 (Relations with Other Enforcement Decrees) (1) Except as prescribed in paragraph (2), matters not provided for in this Decree with regard to trade unions and labor relations adjustments applicable to trade unions for teachers shall be governed by the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act.

The Respondent’s Corrective Order against Complainants (Issued Sept. 23, 2013)

Summary of Decision

1. Claim Regarding the Outlaw Notification Clause

Since the Outlaw Notification Clause envisages additional executive actions such as corrective orders and notifications outlawing trade unions, the constitutional complaint against the Outlaw Notification Clause is injusticiable because it fails to meet the directness requirement for a violation of fundamental rights.

2. Claim Regarding the Instant Corrective Order

The instant corrective order constitutes an administrative action that may change the rights and obligations of the complainant KTU, but the KTU filed a constitutional complaint directly with the Constitutional Court before exhausting other means of appeal or remedies. Therefore, the claim regarding the instant corrective order in this complaint fails to meet the subsidiarity requirement and is thus injusticiable.

3. Claim Regarding the Provision at Issue

The Provision at Issue limits the right of organization of teachers and teachers unions and therefore should comply with the rule against excessive restriction as prescribed by Article 37 Section 2 of the Constitution.

The entitlements to forming teachers unions or engaging in their activities are, in principle, confined to teachers of elementary or middle schools under the Provision at Issue, which thereby aims to contribute to the substantial enhancement of teachers’ working conditions by securing the independence and self-reliance of teachers unions. And limiting the eligibility of teachers union members to currently employed teachers is considered an appropriate means to serve the stated legislative purpose.

Trade union activities have, in principle, been guaranteed since the enactment of the Teachers Union Act on January 29, 1999, and teachers unions exercise a direct and significant influence on teachers’ working conditions, such as exercising the right to collective bargaining and the right to sign collective agreements on behalf of teachers with the purpose of enhancing their working conditions. In light of this role or function of teachers unions, granting the teacher status only to those who are currently employed is inevitable to an extent.

In addition, teachers unions, given their nature, can only be formed by industries or regions, but most of the teachers’ working conditions are established by statutes or ordinances. In this context, denying the teacher status of those who are no longer teachers and are irrelevant to the said working conditions is not considered an excessive restriction on their right of organization, and little benefit is likely to be gained from allowing non-teachers to engage in the collective bargaining of teachers unions over the appointment, status, etc. of teachers against the government and authorities.

Meanwhile, the term “worker” defined by Article 2 Item 1 and Item 4(d) of the Labor Union Act also includes the temporarily unemployed or jobs-seekers insofar as they require the protection of three basic labor

rights (refer to Supreme Court ruling of 2001Du8568, decided Feb. 27, 2004), and those who seek the position of teachers face no restriction in forming or joining any labor unions pursuant to the Labor Union Act.

The proviso of the Provision at Issue is originally aimed at guaranteeing the trade union activities of teachers by protecting them from any unjust restrictions by the appointing authorities, but allowing dismissed teachers to preserve their status as members of teachers unions in general may cause concerns about possible abuse of lawsuits under the current legal system that imposes no deadline on disputing the effect of dismissal or about the possibility of taking advantage of teachers union activities in claiming the unfairness of one’s personal dismissal. Thereupon, there is good reason to deny dismissed teachers the status of teachers union members as prescribed by the Provision at Issue.

Nevertheless, it is not always legitimate to deny the legal status of teachers unions that have completed their registration and are lawfully active just because it is reasonable that the Provision at Issue should confine the eligibility to form teachers unions or join their activities to teachers who are currently employed in elementary or middle schools. There is a constant possibility that unqualified members will temporarily exist in teachers unions due to incidents such as dismissal or resignation of teachers who rightfully joined teachers unions in the first place when the unions were established, and this matter is directly regulated by the Outlaw Notification Clause. However, the KTU has been acting as a lawful teachers union for more than 10 years since the introduction of the Teachers Union Act, and the Outlaw Notification to the KTU was issued only on October 24, 2013 although the dismissed teachers had been serving as its members all along. These considered, it is affirmed that it is the discretion of administrative authorities to decide whether or not to outlaw an active trade union on grounds that it has some members who are currently not teachers, and courts are fully capable of making judgments on whether such decisions fall within the legitimate discretion of administrative authorities.

All circumstances considered, the Provision at Issue is not deemed to

overly limit the rights of organization of prospective teachers with teaching certificates or dismissed teachers as well as the same rights of teachers unions which encourage the prospective or dismissed teachers to join or retain their union membership, and the matter concerning whether to deprive the legal status of teachers unions that have already notified of their establishment will depend on the interpretation of the Outlaw Notification Clause or operation of the law enforcement. For this reason, the Provision at Issue meets the least restrictive means requirement in restricting the right of organization of teachers unions and teachers seeking employment.

According to the Provision at Issue, teachers unions as well as job-seekers with teaching certificates or dismissed teachers are prevented from being members of teachers unions and thus are not authorized to form or join teachers unions defined by the Teachers Union Act, but this disadvantage does not necessarily represent a deprivation of the right of organization itself and the restriction imposed is not so significant. On the contrary, the damage done to self-reliance can be severe if teachers who are not currently employed in elementary or middle schools form or join teachers unions and exercise all sorts of powers such as the right to collective bargaining specified in the Teachers Union Act. Therefore, the Provision at Issue also complies with the balance of interests doctrine.

Thereupon, the Provision at Issue is not in violation of the rule against excessive restriction.

Summary of Dissenting Opinion by Justice Kim Yi-su

The Provision at Issue, regardless of the legitimacy of its legislative purpose, is excessively restrictive of the organization right of teachers unions, dismissed teachers, or job-seekers with teaching certificates.

There is no need to strictly prohibit the temporarily unemployed such as dismissed teachers or job-seekers with teaching certificates, let alone the currently employed teachers, from joining teachers unions that actually constitute industrial, regional labor unions, and such a stringent

restriction despite the particular occupational nature of teachers who can hardly change their line of work may result in an excessive restriction on the organization right of those who are in the same line of profession as teachers.

Since the Teachers Union Act has provisions prohibiting the industrial actions of teachers unions and their members (Article 8) as well as banning the political activities of teachers unions (Article 3), the existence of dismissed teachers within the teachers unions is not likely to result in either the groups’ politicization or the undermining of the public nature of education and the people’s right to education.

Furthermore, it is common practice for dismissed teachers to take their appeal to the Appeal Commission for Educators, so the infringement on their right of organization can be minimized by keeping their member status until the Commission reaches a decision on their applications for appeal.

Above all, as seen from the procedure taken to outlaw the KTU, the Provision at Issue rather undermines its legislative purpose, contrary to its original aim to protect the self-reliance of trade unions by way of taking the administrative means.

The three basic labor rights of teachers were not guaranteed in the past, but since 1995 the government began discussing the protection of those rights in consideration of the recommendations issued by international bodies such as the International Labor Organization and the Organization for Economic Cooperation. Pursuant to the agreement of the Tripartite Commission of Labor, Management and Government in 1998, the Teachers Union Act was enacted and promulgated on January 29, 1999 (Act No. 5727). On the first day of the Act’s enforcement on July 1, 1999, the KTU submitted an application for its registration and has operated as a lawful trade union for approximately 15 years, but the competent administrative authority interpreted and applied the Provision at Issue with excessive formality and took the most radical administrative measure solely on grounds that the organization had a few dismissed teachers. Therefore, the Provision at Issue may serve as a

fundamental violation of the self-reliance and the right to organize of teacher unions.

Additionally, the working relations of teachers who work for state or public schools and are thus public servants and those of teachers of private schools differ from one another, so Article 31 Section 6 of the Teachers Union Act that prescribes the principle of legality concerning the status of teachers cannot serve as the basis for limiting the three basic labor rights of private school teachers, and such restriction is rarely found even from the perspective of comparative law. Besides, this kind of restriction also contradicts the Freedom of Association and Protection of the Right to Organize Convention (No. 87) and Convention No. 98 of the ILO, which the Korean government has yet to ratify.

Thereupon, the Provision at Issue fails to comply with the rule against excessive restriction and the right to organize of teachers unions, dismissed teachers, or job-seekers with teaching certificates and thus violates the Constitution.