Case on Prohibition of Third-Party Intervention in Labor Disputes

[2 KCCR 4, 89Hun-Ka103, January 15, 1990]

A. Background of the Case

In this case, the Constitutional Court upheld the provisions of the Labor Dispute Adjustment Act that prohibits third party intervention in a labor-management dispute.

Article 13-2 of the Labor Dispute Adjustment Act prohibits in principle any manipulation, instigation or obstruction of the involved parties or any other intervention in the dispute, except by the union in direct labor relationship with the management, the management, or anyone else authorized by law (hereinafter referred to as the “Third Party Intervention Provision”). Article 45-2 of the Labor Dispute Adjustment Act prescribes criminal penalties for any violators thereof.

The petitioner, a church pastor, was prosecuted for violating the Third Party Intervention Provision on a charge of having intervened in the labor dispute of a taxi company with an intention to influence the dispute. Thereupon, the petitioner motioned for request of constitutional review of the Third Party Intervention Provision, and the presiding court granted the motion and referred the case to the Court.

B. Summary of the Decision

The Court held that the Third Party Intervention Provision does not violate the Constitution.

The reason the Constitution guarantees the three basic labor rights is to allow workers, who are in an economically vulnerable position, to sign collective agreements on an equal level as the employer. If workers are to legally exercise their three labor rights, they necessarily require the assistance of third parties aside from the involved parties, such as experts with knowledge and experience including lawyers and certified public labor attorneys. The purpose of the Third Party Intervention Provision is not to cut off such assistance, but merely to prohibit any actions that involve manipulating, instigating, obstructing or intervening in any other way with the intention to influence the parties involved in the dispute. Thus, the provision cannot be construed to restrict the three labor rights of workers.

Further, the ban applies to third party intervention on the management side as well as that of workers. Therefore, the provision does not constitute irrational de facto discrimination against the workers.

The part "intervening with intent to influence..." in the Third Party Intervention Provision can be defined as an inclusive act from which the overall evaluation of all the acts of the intervening party reveals intent to influence the free and independent decision of the involved parties in labor relations. Thus, it does not violate the principle ofnulla poena sine lege.

Justices Kim Chin-Woo and Lee Shi-Yoon found the provision constitutional only on the condition that it does not apply to interventions incident upon a lawful course of dispute. Justice Kim Yang-Kyun upheld the provision only in the limited extent of banning a third party intervention from organizing labor unions or engaging in collective bargaining without any legitimate reason. Justice Byun Jeong-Soo was of the opinion that the Third Party Intervention Provision should be announced as unconstitutional for violating the rule of clarity.

C. Aftermath of the Case

The labor sector and some media outlets criticized the decision of simple constitutionality as reflective of the Court's conservative position on labor issues. They argued that the Third Party Intervention Provision can serve as a poison pill blocking the lawful intervention of a third party in good faith (The Hankyoreh, January 18, 1990).

After this decision, the Constitution Court again announced that the Third Party Intervention Provision did not violate the Constitution, in the decision for the constitutional complaint against Article 12-2 et al. of the former Trade Union Act (92Hun-Ba33) made on March 11, 1993 (two opinions for conditional unconstitutionality, one opinion for conditional constitutionality, and one opinion for unconstitutionality), and the decision for the constitutional complaint against Article 40 Section 2 et al. of the former Trade Union and Labor Relations Adjustment Act (2002Hun-Ba57) made on December 16, 2004 (one opinion for conditional constitutionality).

Despite such decisions upholding the provision, the ban on third party intervention was continuously criticized for undermining the independence of labor and management and running counter to international labor standards. Accordingly, the National Assembly revised the Trade Union and Labor Relations Adjustment Act by Act No. 8158 on December 30, 2006, and removed the Third Party Intervention Provision.