The Establishment and Operation of Public Employees' UnionCase

[20-2(B) KCCR 666, 2005Hun-Ma971·1193, 2006Hun-Ma198 (consolidated), December 26, 2008]

In this case, the Constitutional Court held constitutional certain provisions of the Act on the Establishment and Operation of Public Officials Union which put restrictions on the three basic labor rights of public servants. Under the provisions, some categories of public officials are not allowed to join any labor organization, and even for those who are not within the categories, the way to exercise their right of collective bargaining and the effect of collective agreement are also controlled by the aforementioned Act and sometimes any collective action by them are strictly limited. Regarding this, the Court concluded that such provisions are based on legitimate reasons to restrict public officials' basic labor rights including the right of association, considering the public nature of their job and the special status as public servants.

Background of the Case

The complainants, who are the Korean Government Employees' Union, the alliance of government employees' union, unit labor unions, local labor unions, government officials from Rank 5 to Rank 8, local public officials or public officials in technical service, filed a constitutional complaint as the Act on the Establishment and Operation of Public Officials' Union (promulgated on January 27, 2005, would come into effect on January 28, 2006, hereinafter, referred as the "Act"), arguing that the provisions of the Act including Article 6 (scope of membership), proviso of Article 8 Section 1 (right of collective bargaining), Article 9 Section 4 (process of collective bargaining) encroach on their three basic labor rights and the right to equal treatment, in violation of the principle of prohibition of excessive restriction prescribed in Article 37 Section 2 of the Constitution.

Summary of Decision

The Constitutional Court denied the constitutional complaint, holding that the contested provision of the Act does not violate the Constitution, with a unanimous opinion of all Justices except the partial dissenting opinion of One Justice regarding Article 10 Section 1 and Article 11 of the Act. The summaries of opinions are as follows:

1. Majority Opinion

The National Assembly as a lawmaking institution has wide discretion to decide whether to allow public officials to exercise the rights of association, collective bargaining and collective action, and how to limit the type and scope of such actions through legislating related laws and regulations.

A.Article 6 of the Act regarding the eligibility of membership to labor union basically excludes Rank 5 public officials or higher, who are management office holders, to be members of a labor union because they are engaged in the work of making decisions on overall policies, and directing and supervising lower grade officials. In the same vein, some of Rank 6 or below public officials who hold directing and supervising authority are also prevented from participating in activities of labor unions because they are always in the position of representing the interests of employer or their works are mostly related to the public interests and publicness. Therefore, Article 6 does not depart from the legislature's discretion in enacting the law, and therefore, not violate the petitioners' right of association.

Although the Act treats differently 1) Rank 5 public officials and Rank 6 or below public officials; 2) among the Rank 6 and lower public officials, those who are responsible for certain categories of work and those who are not; and 3) Rank 6 or below public officials who are not eligible for union membership and public school teachers, such discriminations seem to be reasonable and therefore, the provisions do not infringe upon the complainants'right to equal treatment.

B.The proviso of Article 8 Section 1 of the Act which excludes

"matters not directly related to working conditions, such as management and operation of public agencies including making policy decisions and exercising the right to appoint", from the subject matters of collective bargaining can not be regarded as violating the complaints' right of collective bargaining, going beyond the right to legislate without legitimate reasons, because the proviso does not exclude all matters related to policy decision or management and operation as a whole but still allows collective bargaining if the issues for negotiation are directly related to working conditions.

C.Article 9 Section 4 of the Act, which stipulates that "if there are two or more trade unions that demand negotiations, the government's negotiating representative may request the labor unions concerned to unify their bargaining channels and may refuse to negotiate until the bargaining channels are unified", cannot be concluded to violate the complaints' right of collective bargaining because the provision is based on legitimate reasons: while assuring labor unions of the exercise of their right of collective bargain in principle, it prescribes for one unified bargaining channel made through autonomous decision making process by several labor unions, in consideration of possible confusion in the process of collective bargaining, difficulties in applying collective agreements and excessive cost, all of which can be problems if multiple labor unions are allowed.

D.Article 10 Section 1 of the Act recognizes the right of collective bargain of the government employees' union, but denies the effect of collective agreements which are in violation of statutes, ordinances or budgets, etc. Most parts of working conditions for public officials, different from those for private sector employees, are decided by the National Assembly which represents public will in the form of laws or budgets and therefore, if a provision in a collective agreement is related to such conditions, it may not be decided by collective bargaining process between the government and a public official's trade union. Consequently, a collective agreement, although concluded by mutual consent between labor and management, cannot have priority over provisions enacted by laws, budgets or by orders or rules made in accordance with the delegating laws and budgets or for the

enforcement of such laws and budgets. Neither, can such a collective agreement take precedence over ordinances which are established by a local assembly and bind the competent local government and the pubic officials thereunder.

Also, Article 10 Section 1 of the Act only denies the effect of collective agreement which is against laws, budgets or ordinances and does not prevent labor unions from initiating collective bargaining itself or entering into a collective agreement. And Article 10 Section 2 of the Act imposes duty to make efforts in good faith to implement the provisions on the government's negotiating representatives. Therefore, Article 10, Section 1 of the Act cannot be deemed to infringe upon the complainants' right to conclude a collective agreement.

E.If public servants try to achieve their collective interests by engaging in industrial actions including strikes, work slowdowns or other related activities, such actions against the public cannot be allowed because those activities undermining normal business operation of public service are not only contrary to the status and characteristics as public officials who serves the people but also impedes the pursuit of interests by the people. Furthermore, their working conditions including compensation are decided by the National Assembly and all the money for such compensation is paid out of the people's pocket. In addition, if administrative services provided by public servants are suspended due to industrial actions, function of the nation can be paralyzed and in that case, it is the people who should sustain the entire loss and inconvenience. And, given the characteristics of public service for which anything can hardly substitute, the balance of power between labor and management may not be easily maintained because the government will undergo hardship in finding out alternatives for such public service. Therefore, we concluded that Article 11 prohibiting the entire collective action of the government employees does not violate the Constitution as it is within the scope of the legislative authority prescribed in Article 33 Section 2 of the Constitution.

F.Article 18 of the Act regarding penal punishment, which strictly

prohibits public officials from participating in any industrial actions, clearly articulates legal interests to be protected, activities to be prohibited and types and degrees of penalties which can be plainly understood by introducing usual method of interpretation with reference to the Supreme Court's interpretation regarding the penal punishmentfor obstruction of business by fraud or threat. Therefore, the Act cannot be regarded void for vagueness, which is one of the related themes of the principle ofnulla poena sine lege(No penalty without a law).

It is basically the nation's legislative policy to decide what kind of action shall be a crime and what kind of penalty shall be imposed on, and it is the lawmakers who must be given wide range of discretionary power or the right to legislate for that matter. Also, given the characteristics of the work provided by public servants, which are closely related to publicness and public interests, and the penalties for the crime of obstruction of business by fraud or threat in our criminal law, the penalty stipulated in the aforementioned article does not seem to be as harsh as to go beyond the legislator's discretionary power.

Also, industrial actions taken by public servants not only can confuse the order of administrative operation of the nation but also even possibly disturb the public interests of general people, affecting overall aspects of the citizens' life. Considering these possibilities, Article 18 of the Act cannot be regarded as violating the Constitution beyond the legislator's discretionary power.

G.Article17 Section3 of the Act sets for some situations where the Trade Union and Labor Relations Adjustment Act is not applicable to the government employees' labor union and one of such situations under the provision is Article 82 Item 2 and Article 90 of the above Trade Union Act, which provide penalties for employer's unfair labor practice and violation of an order of remedy to employer's unfair labor practice respectively. As a result, industrial actions taken by unionists are punishable while the unfair labor activities by representatives from the government side are not punished.

However, the fact that the Act omits to provide for penal punishment, only providing for civil remedy, for unfair labor practice

by the employer cannot be regarded as violating the Constitution and infringing upon the complainants' right of collective bargaining because it is basically a matter of legislative policy to decide what to be a crime and its punishment, and therefore, the legislators must be given wide discretionary power or legislative freedom for that matter.

Also the discrepancy between the penal punishment imposed on the public officials' industrial actions and the immunity from criminal penalty given to the employer's unfair labor practice and violation of an order of remedy is based on legitimate reasons, in that the purposes of legislation are different and there are the special features of industrial relations in the public sector. Therefore, such different treatment cannot be regarded as violating the petitioners' right to equal treatment. The legislators adopted civil remedy, not criminal punishment, for unfair labor practice by the employer on the basis of the principle of restitution, the concept used under the Civil Code, because without imposing penal punishments on representatives from the government side, there are relatively smaller possibilities for overflow of unfair labor practices by the employer than the side effects that can be brought by imposing criminal disposition, such as excessive numbers of criminal complaints filed against unfair labor practice. Therefore, the different treatment between employees in the private sector and public officials, as prescribed in Article 17 Section 3 of the Act regarding penalty for unfair labor practice by the employer, seems to have reasonable grounds, not violating the complainants' right to equal treatment.

2. Partial Dissenting Opinion by One Justice

A.Article 33 Section 2 of the Constitution should be interpreted not to give unlimited discretionary power to the legislature but to impose duties and limitation on the legislature to bring the purposes of both Article 33 Section 1 and Article 7 of the Constitution into harmony. In that sense, any Act pursuant to Article 33 Section 2 of the Constitution should be considered to have authority to limit the three basic labor rights of public officials only to the extent that such restriction is necessary to abide by the requirement stipulated in Article 7 of the Constitution.

B.Rules and regulations included in the category of "laws" prescribed in Article 10 Section 1 of the Act are unilaterally enacted or reviced by one party of the industrial relations in the public sector (usually the employer) and cannot be regarded the same as laws, ordinances or budgets enacted by legislative bodies such as the National Assembly or local assemblies. Therefore, they cannot be considered to have priority over collective agreements decided by mutual agreement of both parties in all cases. If it is possible for the national or local governments to overrule the effect of a collective agreement by enacting rules or regulations that are contrary to the collective agreement concluded before the enforcement of such rules or regulations, which permits unilateral modification and nullification of a mutually decided collective agreement by one party of the industrial relations, such practice fundamentally violates public officials' right of collective bargaining guaranteed by Article 33 Section 1 and 2 of the Constitution.

Therefore, I concluded that interpreting "laws" in Article 10 Section 1 of the Act to include rules and regulations enacted subsequent to the conclusion of a collective agreement is regarded to violate Article 33 Sections 1 and 2 of the Constitution.

C.Article 11 of the Act disallows any industrial action that disturbs normal business operation of public service, providing that "a trade union and its members shall not take any action, including strikes, work slowdowns and other activities undermining normal business operation". The Article, however, is not about fundamentally denying public officials' right of collective action, but about drawing a line beyond which the right of collective action is limited in consideration of the special character of public service, basically assuming that the three basic labor rights are recognized for public officials. Therefore, interpreting Article 11 to prohibit public officials from exercising their right of collective action even in case where such collective action does not undermine normal business operation of public service contradicts Article 33 Section 2 of the Constitution.