16.Case on Prohibition of Remunerating Full Time Trade Union Official and Time Off

[26-1(B) KCCR 354, 2010Hun-Ma606, May 29, 2014]

In this case, the Constitutional Court held that the relevant provisions of the Trade Union and Labor Relations Adjustment Act which prohibit remuneration to full time trade union official and time off are not in violation of the Constitution, because it is not against nulla poena sine lege even if the specific time off limit is not provided directly in the Act, and it is not infringing on the complainants’ right to collective bargaining and collective action to prohibit unions from demandingremuneration to full time trade union official and taking collective action.

Background of the Case

Complainants are National Federation of Democratic Labor Unions, NH Central Committee Labor Unions, National Health and Medical Industry Labor Unions, and full time trade union officials. On January 1, 2010 the Trade Union and Labor Relations Adjustment Act (the ‘Act’)was amended by Act No. 9930 to prohibit employers remunerating full time trade union officials(‘full time official’), and to allow paymentup to a certain limit for labor union related activities(‘time off’). Complainants filed a constitutional complaint on September 28, 2010 arguing that the relevant provisions of the Act, the decision made by the Time－Off System Deliberation Committee (‘Committee’) regarding time off limit, and the Notification on Time Off Limit by the Ministry of Labor infringe on the complainants’ labor rights.

Provisions at Issue

The subject matter of this case is whether the following provisions infringe on the complainants’ fundamental rights ① Article 24 Section 2 of the Act(amended by Act No. 9930 on January 1, 2010) prohibiting

remuneration to full time trade officials, Article 24 Section 4 about time off, Article 24 Section 5 and Article 92 Item 1 prohibiting trade unions to demand remuneration and take collective action, and in case of violation imposing a fine(Article 92 Item 1 is referred to as ‘the Punishment Provision’, the others ‘the Instant Provisions of the Act’), ② Article 11-2 of Enforcement Decree of the Trade Union and Labor Relations Adjustment Act(Amended by Enforcement Decree No. 22030 on February 12, 2010) stipulating that the Committee may determine the number of hours and persons who may use such hours when setting the time off limit ③ the decision made by the Committee on May 1, 2010 ④ Notification on Time Off Limit by the Ministry of Labor on May 14, 2010(Ministry of Labor Notification No. 2010－39) (‘the Notification’)

Trade Union and Labor Relations Adjustment Act(Amended by Act No. 9930 on January 1, 2010)

Article 24 (Full-time Official of Trade Union)

② A person who is engaged in duties only for a trade union in accordance with paragraph (1) (hereinafter referred to as “full-time official”) shall not be remunerated in any way by the employer for the duration of his/her tenure.

④ Notwithstanding paragraph (2), a worker may take time off from work to carry out the functions prescribed by this Act or other applicable acts, including consulting and bargaining with the employer, handling of grievance and occupational safety activities, and the functions of maintaining and managing the trade union for the sound development of industrial relations without any loss of wages as long as he/she does not exceed the maximum time-off limit (hereinafter referred to as “the maximum time-off limit”) set in consideration of the number of union members, in each business or workplace in accordance with Article 24-2, if it is stipulated in the collective agreement or consented by the employer.

⑤ A trade union shall not demand the payment of wages in violation of paragraphs (2) and (4) and take industrial action to achieve such a

goal.

Article 92 (Penal Provision)

A person who falls under the purview of any of the following subparagraphs shall be punished by a fine up to Ten Million Won:

1. A person who violates Article 24 (5)

Enforcement Decree of the Trade Union and Labor RelationsAdjustment Act(amended by Enforcement Decree No. 22030 on February12, 2010)

Article 11-2 (Maximum Time-Off Limit) When the Time-OffSystem Deliberation Committee (hereinafter referred to as the “Committee”)pursuant to Article 24-2 (1) of the Act determines the maximum time-off limit pursuant to paragraph (2) of the same Article, the Committee may determine the number of hours and persons who may use such hours in consideration of the number of all union members of a business or place of business and the scope of the relevant affairs, etc. pursuant to Article 24 (4) of the Act.

Ministry of Labor Notification No. 2010－39

According to Article 24, 24-2 and the relevant Enforcement Decree 11-2 of the Trade Union and Labor Relations Adjustment Act on the time off limit is set as below.

May 14, 2010

Ministry of Labor

Notification on Time Off Limit

1. Time Off Limit

*Numbers refer to those of the entire union members in the business

2. application period: from July 1, 2010

Summary of the Decision

1. Admissibility

① The decision made by the Committee regarding time off limit is only internal procedure and does not in itself affect complainants’ legal status, not amounting to governmental action subject to constitutional complaint. ② Article 11-2 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act does not directly restrict complainants’ rights or impose duties, so there is no direct infringement of fundamental rights. ③ Complainants other than Lee ○-Bae filed an

administrative lawsuit arguing that this Decree is void but was rejected by the Supreme Court on March 27, 2014(2011Do8420). The above court decision is not one that is exceptionally subject to constitutional complaint so the Decree is not subject to constitutional complaint. Lee ○-Bae did not take prior steps against the Decree such as lawsuit etc, so his complaint did not exhaust all other means of resource. ④ Thus the complaint regarding Article 92 Item 1 of the Act, Article 11-2 of the Enforcement Decree, the decision by the Committee, the Notification limiting time off hours is all inadmissible.

2. Whether it is against nulla poena sine lege

According to Article 24 Section 5 of the Act, a trade union is not allowed to demand payment of wages in violation of time off limit and take industrial action to achieve such a goal. It is punishable by fine, so time off limit constitutes one of the elements of crime. As Article 24 Section 4 of the Act stipulates that the time off limit shall be determined by the Ministry of Labor Notification after the Committee’s decision, the problem of nulla poena sine lege needs to be dealt with.

Specific time off limit is a field of administration that requires use of experts’ knowledge and grasp on the limit of time and personnel needed to carry out union activities in the industry, not only the number of union members. It also requires expert adjustment between employers and workers. The Committee is composed of five members recommended from labor, business and government so both sides’ interests as well as expert opinion can be reflected, making up for the legislators’ lack of expertise. Thus it is necessary to ensure flexible and expert solution to mirror the reality of labor relations and adjust various interests, instead of direct legislation. So it is reasonable to stipulate that the time off limit shall be determined by the Ministry of Labor Notification after the Committee’s decision.

Article 24 Section 4 of the Act stipulates the type of work subject to time off only comprehensively, and it is not clearly set forth which

union work is subject to time off. Therefore it is predictable that what the Ministry of Labor Notification will provide for is not the type of work subject to time off, but the normally necessary ‘time’ and appropriate number of personnel for union operations according to each (place of) business’ number of union members. Thus the ‘time off limit’ part of Article 24 Section 4 is not against nulla poena sine lege.

3. Whether it is against the rule of proportionality

The Instant Provisions of the Act makes the union bear the full time official costs as a rule, and contributes to the independence and neutrality of the union. Also they protect and support union activities in the place of business at a certain level to promote reasonable and stable labor relations as well as business efficiency. Through these means labor disputes may be prevented and contribute to industrial peace, so the legislative purpose is legitimate. To solve relevant problems it is not wholly left to the discretion of workers and employers, but it is stipulated that unions shall not demand the payment of wages to full time official or over the time off limit or take industrial action to achieve such a goal, and it is appropriate means.

To wholly prohibit remuneration to full time official or allow exceptions to time off limit is the necessary minimum to achieve legislative purpose. In the past, enterprise union was prevalent, but after 90s industrial unions and occupational unions increased and workers demanded plural unions, so the practice of employers paying wages to full time officials as facilities were challenged with unreasonable aspects as such changes came about. To correct past practice, on March 13, 1997 provision was introduced to prohibit remuneration to full time official but was put on hold for 13 years as workers and employers could not reach an agreement. Time off was adopted as a compromise by amendment (Act No. 9930) on January 1, 2010 to prevent impairment of union activities as a result of prohibiting remuneration to full time official, and to facilitate full time official system. Through the

new time off system, the full time official may opt for part time workers’ representative and still keep up level of union activities he was responsible for, to minimize the loss caused by total prohibition of remuneration.

Setting only the minimum of time off limit by law and letting the parties freely decide other matters may be ideal. Nevertheless, unlike European nations where industrial unions are prevalent and financially sound, in Korea enterprise unions are more common and time off was adopted to correct the long time practice of employers paying wages tofull time officials. Against such background, it is practically incapacitatingthe purpose of the Instant Provisions of the Act to let the parties decide. Therefore the Instant Provisions of the Act are necessary minimum to achieve legislative purpose and not against the least restriction rule.

Under the Instant Provisions of the Act, complainants’ right to collective bargaining and industrial action are restricted only to the extent of wages for union activities exceeding the time off limit, while the public good such as union’s independence, stable labor relations, industrial peace are very significant by correcting past unreasonable practices regarding remunerating full time officials and by guaranteeing union activities within time off limit. Therefore the balance of interests is satisfied.

Thus the Instant Provisions of the Act do not violate the proportionalityrule and infringe on the workers’ right to collective action or collective bargaining, or the principle of free labor relations.

4. Whether it is against regard for international law

The ILO Convention 135 ‘Convention concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking’ was adopted by ILO in 1971. As it was ratified by Korea on December 27, 2002 and came into effect, Korea has a duty to abide by the Convention just as domestic law. Article 2 Section 1 of the Convention states that workers’ representatives in the undertaking shall enjoy effective protection

against any act prejudicial to them, and such facilities in the undertaking shall be afforded to workers’ representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently. However, it is also stated that account shall be taken of the characteristics of the industrial relations system of the country and the needs, size, and capabilities of the undertaking concerned, and as time off system was adopted as a compromise to prohibition of remunerating full time official, the Instant Provisions of the Act cannot be said to violate the Convention. Also according to ILO Recommendation 143 ‘Recommendation concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking’, which helps to interpret the Convention, in Article 10 ‘time off from work’ is included in the ‘appropriate facilities’ of the 135 Convention, and reasonable limits may be set on the amount of time off. Therefore, the Instant Provisions of the Act are not in conflict with the Convention or the Recommendation, in that the total amount of time off is set by prior legislation.

Meanwhile, Recommendation of the Committee on Freedom of Association, an organization set up by the ILO, does not have the same effect as domestic law or regarded as generally accepted international law. As noted above, as time off system was adopted as a compromise to prohibition of remunerating full time official, the Instant Provisions of the Act are not in conflict with the Recommendation of the Committee on Freedom of Association.

Therefore the Instant Provisions of the Act do not violate the principle of regard for international law.