Case on Punishing Violation of a Collective Bargaining Agreement

[10-1 KCCR 213, 96Hun-Ka20, March 26, 1998]

A. Background of the Case

The Constitutional Court struck down the provision of the former Labor Union Act that failed to state the elements of a crime explicitly by statute and fully delegated the determination of such elements to collective bargaining agreements, punishing any violation thereof.

Article 46-3 of the former Labor Union Act (repealed upon the enactment of the Trade Union and Labor Relations Adjustment Act by Act No. 5244 on December 31, 1996) imposes a fine not exceeding ten million won on any person who violates a collective bargaining agreement between the management and the union (hereinafter referred to as the “Punishing Violation of Collective Agreement Provision”).

A worker of a company in Ulsan Metropolitan City was prosecuted in the Ulsan Branch of the Busan District Court for violating the aforementioned Labor Union Act. He allegedly violated a so-called peace clause of the collective bargaining agreement by instigating fellow workers to engage in labor disputes. The presiding court requested constitutional review of the provisionsua sponteon the suspicion that the Collective Agreement Violation Provision may violate the principle ofnulla poena sine lege.

B. Summary of the Decision

The Court struck down the Punishing Violation of Collective Agreement Provision for violating the principle of statutory punishment.

The principle ofnulla poena sine legerequires in principle that the elements of a crime and its penalty be determined in the form of a law by the legislature. In an exceptional case where such determination is delegated to a lower rule-making, the condition and scope of delegation must be narrowly set so that one can predict the elements of a crime from the statute.

Article 46-3 of the former Labor Union Act simply states "violation of a collective bargaining agreement" as the elements of a crime, leaving their essential content to the collective bargaining process. A collective bargaining agreement is nothing but an agreement between the management or a

management organization and the union. Therefore, the provision amounts to entrusting the determination of the elements of a crime to the labor and management. Thus, the Punishing Violation of Collective Agreement Provision violates the principle ofnulla poena sine legeand its basic mandate of statutory statement by failing to state the substantive content of the elements of crime and leaving it to determination by the collective bargaining process.

The element of the crime is satisfied by any violation of a collective bargaining agreement. Since the management and labor can freely enter into an agreement on all aspects of individual or collective labor relations with no limitation, the scope of acts of violation is excessively inclusive and broad; thus, it violates the principle of clarity, another component of the principle ofnulla poena sine lege.

A collective bargaining agreement provides for wages and other issues directly concerning the terms and conditions of employment, and for personnel and labor disputes which are fundamental and important to labor relations. Further, it may contain minor procedural rules or abstract and unclear contents, or even unfair content that deviates from social customs. Therefore, uniformly punishing all violations thereof is hardly a means to obtain justice and fairness in criminal punishment. At the same time, the authorities may find in it an opportunity to apply law arbitrarily and selectively, consequently damaging the fairness of law enforcement.

C. Aftermath of the Case

The press welcomed the decision as a check on the management's abuse of labor laws in restricting workers' labor disputes (The Seoul Shinmun, The Hankyoreh, March 27, 1998), while some in the labor sector protested that it may weaken workers' ability to obtain management's compliance to a collective bargaining agreement (The Hankyoreh, April 9, 1998).

The Trade Union and Labor Relations Adjustment Act, enacted upon the repeal of the former Labor Union Act on March 28, 2001, through Act No. 6456, prescribed in Article 92 punishment by a fine not exceeding ten million won for any violation of the following items among the contents of a collective agreement: 1) matters on wages, welfare costs and retirement allowances; 2) matters on work, rest periods, holidays and vacations; 3) matters on causes of and important procedures for disciplines and dismissals; 4) matters on safety and health and disaster relief; 5) matters on facilities, furnishing conveniences and participation in meetings during on-duty hours; 6) matters on industrial actions.

Following the aforementioned amendment, a court made a request for constitutional review of the part “matters on causes of and important procedures for discipline.” On July 26, 2007, the Constitutional Court stated that the

employer, the main norm addressee of the penalty provision for violations of collective agreements, as a party involved in collective bargaining and the conclusion of the collective agreement, can predict the implication of the aforementioned provision. Since matters concerning “important procedures” are those that can affect the efficacy of disciplines, their definition can be confined to mean procedures that can significantly impact workers’ labor rights and the protection thereof. Thus, this does not run contrary to the rule of clarity. Further, unlike the provision prior to the amendment that was reviewed in the decision for 96Hun-Ka20, this Act specifies the violations of collective agreements that are punishable under six categories, thereby explicitly defining the content of actions that are prohibited; therefore, this legislation does not run against the intent of the aforementioned Court’s decision (2006Hun-Ka9).