Case on the Prohibition of Labor Disputes by Public Employees in Labor Service

[5-1 KCCR 59, 88Hun-Ma5, March 11, 1993]

A. Background of the Case

In this case, the Constitutional Court delivered a decision of nonconformity to the Constitution on Article 12 Section 2 of the Labor Dispute Adjustment Act for depriving public employees engaging in labor service of the right to collective action.

Article 12 Section 2 of the Labor Dispute Adjustment Act (amended by Act No. 3967 on November 28, 1987) provides that workers in state agencies, local governments or defense industries designated by the Act on Special Measures for the Defense Industry cannot engage in a labor dispute.

The complainant, a government employee of the Ministry of Postal Communication, who is also a member of the National Postal Workers Union and the chairperson of the National Federation of Civil Servants Unions, filed a constitutional complaint claiming that the right to collective action of the complainant, who essentially engages in physical labor, was infringed by the aforementioned provision.

B. Summary of the Decision

The Court found Article 12 Section 2 of the Labor Dispute Adjustment Act nonconforming to the Constitution.

Unlike the former Constitution, Article 33 Section 2 of the Constitution does not entirely restrict or ban the right to collective action to public employees and permits certain public employees the three basic labor rights, delegating to statute the task of determining the scope of eligible employees.

Article 12 Section 2 of the Labor Dispute Adjustment Act explicitly denies public employees the right to collective action, in other words the right to engage in disputes. It restricts and denies this right even to those public employees who should be granted the right under Article 33 Section 2 of the Constitution, and thus violates the rule against excessive restriction. Provided, the Court delivered a decision of nonconformity to the Constitution and the temporary application of the provision and called for the legislature to realize the constitutional mandate in the form of law and eliminate such nonconformity.

Justice Byun Jeong-Soo dissented, asserting that the provision infringes upon the essence of the three labor rights and is thus entirely unconstitutional, and that the Court has no legal ground to withhold immediate invalidation and merely issue a demand for legislation to the National Assembly.

C. Aftermath of the Case

The decision opened the way for public employees engaging in labor to exercise the right to collective action.

The National Assembly, as part of a major revision of labor relations laws, enacted the Trade Union and Labor Relations Adjustment Act through Act No. 5310 on March 13, 1997, and resolved the problem raised by the above provision by narrowing the scope of public employees subject to the ban through Article 41, as follows: "Among workers engaged in a major business of the national defense industry designated by the Act on Special Measures for the Defense Industry, those who are involved in the production of electricity, water or work mainly producing national defense goods shall not conduct industrial actions, and the scope of those involved in work mainly producing national defense goods shall be prescribed by Presidential Decree.” The Enforcement Decree as per this provision was enacted by Presidential Decree No. 15321 on March 27, 1997, and prescribed that “those involved in work mainly producing national defense goods” were persons engaged in the business of manufacture, processing, assembly, maintenance, reproduction, amelioration, performance tests, heat treatment, painting and gas handling, etc. required for completing defense industry products, specifying those banned from engaging in industrial actions (Article 20).