Constitutional Complaint against the Proviso of Trade Union and Labor Relations Adjustment Act Article 81 ⅱ

[17-2 KCCR 392, 2002Hun-Ba95？96 and 2003Hun-Ba9(consolidated), November 24, 2005]

In this case, the Constitutional Court found constitutional the relevant provisions of the Trade Union and Labor Relations Adjustment Act that authorize compulsory organization through the means of a collective bargaining agreement (so called "union shop" agreement) for unions representing at least two thirds of workers at the relevant workplaces.

Background of the Case

Complainants are taxi drivers employed by taxi companies A and B. C Labor Union is a labor union that has the workers working in taxi transportation service at D city as its organizational jurisdiction. E Labor Union is a labor union established mainly by the workers of the taxi companies whose workers did not join C Labor Union. According to the statute of the E Labor Union, its organizational jurisdiction is workers of taxi transportation service in D city. Thus, it has the same organizational jurisdiction as that of ○○ District Taxi Labor Union.

As almost all the workers of A and B Taxi Companies joined C Labor Union, it had been concluding collective bargaining agreement on behalf of them. In concluding the collective bargaining agreement for 1998, C Labor Union concluded the so-called union shop agreement, which states "The Company must immediately dismiss the worker who refuses to join or who withdraws from the labor union." Afterwards, complainants withdrew from C Labor Union and at the same time joined E Labor Union. C Labor Union, according to the collective bargaining agreement, requested A and B Taxi Companies to dismiss the complainants. Accordingly, A and B Companies dismissed the complainants. The complainants filed complaints a suit to seek a declaration that their discharges were void, and requested constitutional review of the Instant Provisions. When the request was denied, they filed this constitutional complaint.

Summary of the Decision

The Constitutional Court issued a 7:2 decision of constitutionality for the following

reasons:

1. Majority Opinion of Seven Justices

A. The instant provision allows a labor union that represents two-thirds or more of the workers working in the workplace concerned (hereinafter "dominant labor union"), to maintain and strengthen its organization by means of concluding a collective bargaining agreement that sets up the rule of compulsory organization (so called 'union shop' agreement). In this instance, there is a conflict between the workers' right not to organize and the labor union's right to active organization (right to compulsory organization). However, the active right to organization has a more special meaning than the freedom not to organize. The labor union's right to compulsory organization also has a characteristic of a right to livelihood (social right). Therefore, it is guaranteed as having more special value compared to individual worker's liberty right, and the labor union's active right to organization is given more importance than individual worker's freedom not to organize. Therefore, granting a labor union the right to compulsory organization cannot be directly concluded as violating the essential aspect of the workers' right not to organize. The instant provision, although causing a conflict between a worker's right to choose to organize and the union's collective right to organization by compelling entry into a certain union through the means of collective bargaining, limits the scope of the labor union that can lawfully and validly enforce compulsory organization. It also has provisions that protect individual workers from abuse of authority by the labor union in a dominant position. Generally, it achieves rational harmony between two conflicting basic rights. Also, its restriction of rights maintains appropriate proportionality and the essential aspect of the workers' right to choose organization cannot be said to be violated. Therefore, the instant provision does not violate Article 33 (1) of the Constitution, which guarantees the workers' right to organization.

B. The reason for labor unions' compulsory organization is ultimately to contribute to the improvement of overall workers' status by enhancing uniform and organized negotiating power through maintaining and strengthening their organization. The instant provision restrictively allows compulsory organization through collective bargaining only to dominant labor unions. If such form of compulsory organization is acknowledged even to minority labor unions, it is feared that an employer with an anti-union intention may abuse it as a tool to oppress majority workers' right to organization. Considering such possibility, the instant provision's discriminatory treatment toward minority labor

unions and workers, who joined or plan to join them, compared to dominant labor unions and its members has a reasonable basis. Therefore, the instant provision cannot be seen to violate the right to equality.

2. Dissenting Opinion of Two Justices

The purpose of Article 33 (1) of the Constitution is to secure the worker's right to livelihood and improve working conditions. An individual worker's freedom not to organize is also guaranteed in the Constitution. The instant provision allows the discharge of a worker who does not join a particular labor union, by having the entry into a particular labor union as a pre-condition of employment. Therefore, it essentially violates worker's freedom not to organize and right to livelihood. Firing a worker, thus, fundamentally denying his or her status as a worker, for the reason of not joining or withdrawing from a particular labor union runs directly counter to the purpose of Article 33 (1) of the Constitution, which seeks to guarantee worker's right to livelihood and improvement of status. It is also against the principle of coexistence and prosperity and the principle of protection of minorities - principles that free democracy aims at. Therefore, the instant provision infringes on workers' right not to organize in a manner that violates Article 33 (1) of the Constitution.

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Parties

Complainants

Bae ○-kyu, et al. 9

Counsel: Busan Law Firm

Attorneys in Charge: Jung Jae-sung, et al. 3

Original Case

1. Supreme Court 2000Da23815, Suit for Declaration of Wrongful Discharge (2002Hun-Ba95)

2. Supreme Court 2000Da23822, Suit for Declaration of Wrongful Discharge (2002Hun-Ba96)

3. Busan High Court 99Na7756, Suit for Declaration of Wrongful Discharge (2003Hun-Ba9)

Holding

The proviso of the Trade Union and Labor Relations Adjustment Act Article 81 ⅱ is not unconstitutional.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) ○○ Transportation Corporation (hereinafter "○○ Transportation") and □□ Transportation Corporation (hereinafter "□□ Transportation") are taxi companies that carry on passenger transportation service. Complainants Bae ○-kyu (March 7, 1996), Son ○-hun (January 20, 1996), Song ○-bok (April 9, 1996), Yun ○-ok (January 29, 1997), Park ○-min (November 21, 1994), Bae ○-yeol (June 1, 1997), Wu ○-hun (June 22, 1989), Son ○-suk (May 9, 1995), and Kim ○-hak (January 8, 1991) joined ○○ Transportation and complainant Kwon ○-ryul (November 25, 1995) joined □□ Transportation as taxi drivers.

(2) ○○ City District Taxi Labor Union (hereinafter “○○ District Taxi Labor Union”) under the National Federation of Taxi Labor Unions is a regional and industry-wide classified unit labor union, which reported establishment on January 21, 1992, having workers working in taxi transportation service at ○○ city as its organizational jurisdiction. ○○ Democratic Taxi Labor Union is a labor union, which reported establishment on May 13, 1997, and received certificate of establishment on the 21st of the same month. In its establishment, the workers of four taxi companies, who did not join ○○ District Taxi Labor Union, played a pivotal role. According to the statute of the ○○ Democratic Taxi Labor Union, its organization jurisdiction is workers of taxi transportation service in ○○ city. Thus, it is a regional and industry-wide unit labor union, which has the same organization jurisdiction as that of ○○ District Taxi Labor

Union.

(3) As almost all the workers of ○○ Transportation and □□ Transportation joined ○○ District Taxi Labor Union, the Union had been concluding collective bargaining agreements with ○○ Transportation and □□ Transportation, or ○○ District Taxi Transportation Association, to which the two companies entrusted the right to collective bargaining. In concluding the collective bargaining agreement for 1998 with ○○ District Taxi Transportation Association during December of 1997, ○○ District Taxi Labor Union concluded the so-called union shop agreement, that states, "The Company must immediately fire any worker who refuses to join or withdraw from a labor union."

(4) Afterwards, complainants Bae ○-kyu, Park ○-min, and Son ○-suk withdrew from ○○ District Taxi Labor Union and at the same time joined ○○ Democratic Taxi Labor Union on June 25, 1998, complainants Song ○-bok, Yun ○-ok, Bae ○-yeol, Wu ○-hun, and Kim ○-hak on the 28th of the same month, and complainant Kwon ○-ryul on August 14th of the same year. ○○ District Taxi Labor Union, according to the collective bargaining agreement, requested ○○ Transportation and □□ Transportation to dismiss the complainants. Accordingly, ○○ Transportation and □□ Transportation dismissed the complainants Bae ○-yeol and Son ○-suk on July 5, 1998, complainants Park ○-min, Wu ○-hun, and Kim ○-hak on the 11th of the same month, complainant Yun ○-ok on the 14th of the same month, complainants Bae ○-kyu, Son ○-hun, Song ○-bok on August 17 of the same year, and complainant Kwon ○-ryul on September 3 of the same year on the basis that they withdrew from ○○ District Taxi Labor Union.

(5) Complainants filed complaints (Busan District Court, 98Ga-Hab15852, 98Ga-Hab19397, and 98Ga-Hab19816) against ○○ Transportation and □□ Transportation asserting that the discharges of the two companies are invalid as they violate the law. The court of first instance sustained the plaintiffs' complaints on July 7, 1999. Therefore, the defendants, ○○ Transportation and □□ Transportation, appealed (Busan High Court, 99Na7756, 99Na7770, and 99Na7794) and the appellate court of 99Na7770 and 99Na7794 reversed the ruling of the court of first instance and rejected the complaints of complainants Bae ○-kyu, et al., and complainant Kwon ○-ryul. Complainants Bae ○-kyu and the three remaining, then, complainants and complainant Kwon ○-ryul appealed to the Supreme Court (Supreme Court 2000Da23815 and 2000Da23822) and requested constitutional review of the proviso of the Trade Union and Labor Relations Adjustment Act (hereinafter "Trade Union Act") Article 81 ⅱ

(Supreme Court, 2000Ka-Gi76 and 2000Ka-Gi183), for the reason that the constitutionality of the proviso, which may be applied to the case, is a precondition to this trial. The Supreme Court, along with the denial of the appeal, denied the request for constitutional review of complainants Bae ○-kyu, et al. 3 on October 25, 2002, and complainant Kwon ○-ryul on November 13, 2002. On the other hand, during the pending case 99Na7756 above, complainants Park ○-min, et al. 4, also requested constitutional review of the proviso of the Trade Union Act Article 81 ⅱ (Busan High Court, 2000Ka-Gi58). The appellate court, along with the reversal of the ruling of the court of first instance and denial of the complaints of complainants, denied the request for constitutional review (this decision was finalized as the complainants did not appeal.). Complainants Bae ○-kyu, et al. 3 requested the Constitutional Court to adjudicate on the instant constitutional complaint on November 16, 2002, complainant Kwon ○-ryul on November 26, 2002, and complainants Park ○-min, et al. 4 on February 7, 2003, according to Article 68 (2) of the Constitutional Court Act.

B. Subject Matter of Review

The subject matter of review of this case is the unconstitutionality of the proviso of the Trade Union and Labor Relations Adjustment Act Article 81 ⅱ (hereinafter "the instant provision") and its contents are as follows.

Article 81 (Unfair Labor Practices)

Employers shall not conduct any act falling under any of the following subparagraphs (hereinafter referred to as an "unfair labor practice"):

(i) Omitted;

(ii) Employment of a worker on the condition that he should not join or should withdraw from, a trade union, or on the condition that he should join a particular trade union: provided that in case where a trade union represents two-thirds or more of the workers working in the workplace concerned, a conclusion of a collective agreement under which a person is employed on condition that he should join the trade union shall be allowed as an exception. In this case, no employer shall act against the status of the worker on the grounds that the worker is excluded from the trade union concerned;

(iii)～(v) Omitted.

2. Opinion of the Complainants, Reason for Denial of the Request for Constitutional Review of the Supreme Court, etc., and the Opinion of Related Parties

A. Opinion of the Complainants (2002Hun-Ba95？96 and 2003Hun-Ba9)

(1) Article 33 (1) of the Constitution guarantees the right to organize to workers. Such right to organize includes not only the freedom to choose an organization, but also the positive right to organize. Therefore, compulsory organization, to a certain extent, is necessary. However, unlike the general compulsory organization that forces workers to join "a certain appropriate labor union", specific compulsory organization that forces workers to join a "particular labor union" violates the workers' freedom to choose an organization.

(2) The instant provision, combined with Article 5 (1) of the Addenda of the Trade Union Act that prohibits the establishment of multiple labor unions in a workplace of the same organizational jurisdiction for a limited period of time, violates the workers' freedom to choose an organization through forcing the entry into a particular labor union. Also, the instant provision violates the right to equality by prescribing that only the labor union, which represents two-thirds or more of the workers at a workplace concerned, can conclude a union shop agreement, thus, not only violating the right to organize of other smaller labor unions (minority labor union), but also in practice disfavoring only the minority labor unions.

B. Reason for Denial of the Request for Constitutional Review of the Supreme Court, etc.

(2002Hun-Ba95？96 and 2003Hun-Ba9)

The main text and the proviso of Trade Union Act Article 81 ⅱ does not characterize as an anti-union contract the conclusion of a union shop agreement with a labor union, which represents two-thirds or more of the workers at a workplace concerned. An anti-union contract is an unfair labor practice requiring non-entry into or withdrawal from a labor union or entry into a particular labor union as a pre-condition of employment. They rather prescribe that the conclusion of a union shop agreement with other smaller labor unions is an unfair labor practice. Although the union shop

agreement has an aspect of conflicting with an individual worker's freedom not to join a labor union or freedom to choose a labor union, the instant provision cannot be said to violate the workers' right to organize. For it acknowledges the validity of the Union Shop Agreement under certain conditions because of its aspect of contributing to strength and maintenance of the organization of the labor union as a part of compulsory organization.

C. Opinion of the Minister of Labor (2002Hun-Ba95 and 2003Hun-Ba9)

The right to organize, guaranteed by the Constitution, includes not only the individual worker's particular right to organize, but also the labor union's collective right to organize. The instant provision is not unconstitutional; although it acknowledges a union shop agreement to substantively guarantee the labor union the right to compulsory organization, it permits the conclusion of the agreement only in the case when a labor union meets the requirements for representation, in order to harmonize with individual worker's right to choose an organization.

Considering the legislative purpose of the instant provision - establishing an order of equal labor - management autonomy and improvement of the working conditions through the maintenance and strengthening of the organization of labor union and the strengthening of the power to organize and to bargain collectively, the instant provision, which admits the conclusion of a union shop agreement only in case when a labor union meets the requirements for representation, does not violate the principle of equality.

D. Opinion of ○○ Transportation and □□ Transportation

(2002Hun-Ba95？96 and 2003Hun-Ba9)

This opinion mostly concurs with the Supreme Court's reason for denial of the request for constitutional review or the opinion of the Minister of Labor.

3. Review

A. Meaning of the Instant Provision

(1) Exception to the Prohibition of Unfair Labor Practices

Article 81 of the Trade Union Law prescribes the employers' conduct that violates or interferes with the activity of workers or the labor union that materializes the Three Rights of Labor as "unfair labor practices" and principally prohibits such conduct. Especially, the main text of subparagraph 2 states "anti-union contract," in other words, a practice requiring non-entry into or withdrawal from a labor union or joining a particular labor union as a condition for employment, as an example. Nonetheless, the proviso of subparagraph 2 prescribes that the conclusion of a collective bargaining agreement is allowed, as an exception, in a case where the labor union represents two-thirds or more of the workers working in the workplace concerned.

From the regulation form and the contents of the provision above, while the main text of subparagraph 2 protects the workers by principally prohibiting the anti-union contract, which has the possibility of the employer's violating the right to organize, through prescribing it as an unfair labor practice; the proviso of subparagraph 2 exceptionally allows the restriction on the workers' freedom to choose organization by acknowledging the exception of removing the prohibition on the employer in the prescribed circumstances.

(2) Legal Basis for Compulsory Organization

Generally, a regulation in the collective agreement, which states workers' joining the labor union as a condition for employment, is called a union shop agreement. Such agreement is a system in a collective bargaining agreement in which the labor union forces the gaining and maintenance of membership of a labor union to maintain and strengthen its organization. It is a representative method of compulsory organization of the labor union.

The instant provision confirms that concluding collective bargaining agreements with a representative labor union (hereinafter "dominant labor union"), which represents two-thirds or more of the workers working in the workplace concerned, for the labor union's purpose of extension of organization, establishing an order of more equal labor-management autonomy through strengthening the power of organization and the power of collective bargaining, is not a prohibited unfair labor practice.

Moreover, the instant provision, besides having the passive meaning above, can be seen as granting legal basis to lawfully and effectively conclude a union shop agreement,

which is the labor union's means of compulsory organization, or at least to prescribe the scope of the dominant labor union, which can lawfully and effectively conclude a union shop agreement.

(3) The Effect of the Provision of Compulsory Organization

Generally, when a labor union concludes a union shop agreement with the employer, workers who qualify as union members according to the union regulations must, in principle, join the labor union concerned and if a worker does not join the labor union within a certain period of time or withdraws from or is expelled from it, the employer must, as set forth in the agreement, dismiss that worker. The Supreme Court also ruled that "the proviso of the former Labor Union Law (before amended by Act No. 5244 on December 31, 1996) Article 39 ⅱ recognizes the so-called union shop agreement, as one of the compulsory means to strengthen the labor union's power to organize, and therefore requires the worker to become a member of the representative labor union as a condition for employment," and that "the employer has the obligation to dismiss the worker who withdrew from a labor union when there is a union shop regulation that the worker must be a member of the labor union according to a collective bargaining agreement, even absent explicit provisions." (Refer to Supreme Court, 96Nu16070, March 24, 1998)

(4) Restriction of Basic Rights

The instant provision does not expressly violate and deprive the worker's freedom not to organize or right to choose an organization. However, as it acknowledges the effectiveness of the compulsory organization functioning, as the legal basis of the union shop agreement, which is the means of compulsory organization of a labor union, and as its contents assumes compulsory obligation in a particular dominant labor union, it restricts the basic rights such as the right to choose an organization of an individual worker who does not wish to join the labor union concerned. Compulsory organization differs according to its contents. While the general compulsory organization, which requires the entry into an appropriate labor union as the condition for employment, only restricts the worker's freedom not to organize, specific compulsory organization, which requires becoming a member of a particular labor union as the condition for employment, not only limits the worker's freedom not to organize, but also even the right to choose an organization.

B. Whether the Worker's Right to Organize, etc., Is Violated

(1) Matters in Dispute

Generally, compulsory organization of a labor union has an aspect of maintaining and strengthening the organization of a labor union by forcing the worker to join any labor union or a particular one. On the other hand, it also has an aspect of restricting the individual worker's freedom not to organize or the freedom to choose whether to join a labor union. Such problem of restricting the individual worker's right to organize, after all, appears in the form of a conflict with the collective right to organize of the instant provision, which is the legal basis of compulsory organization of a labor union. In other words, as the instant provision acknowledges a certain form of compulsory organization of the dominant labor union, conflict arises between the labor union's collective right to organize and the individual worker's freedom not to organize or right to choose an organization. Therefore, it is important to resolve the conflict between the two basic rights.

(2) Solution to Conflict among Basic Rights

A conflict among basic rights happens when a number of subjects of different basic rights assert before the state the application of opposing basic rights in a same case in order to actualize their own rights and interests. In such conflict, the exercise of one subject's basic right characteristically restricts or inhibits the exercise of the other subject's basic right.

To resolve the conflict between basic rights, we have discussed a hierarchy of basic rights, the principle of balancing competing interests, the principle of substantive harmonization, (i.e. an interpretation favoring harmonization of norms), etc. The Constitutional Court has resolved the problem of conflicts among basic rights by choosing an appropriate solution for each case according to the characteristics and mode of the conflicting basic rights. For example, in a constitutional complaint against Article 7 of the Enforcement Rule of the National Health Promotion Act, the Constitutional Court found that when two basic rights of different ranks such as smoker's rights and non-smoker's rights conflict, the inferior basic right can be limited according to the principle of precedence of a superior basic right. Thus, it ruled that smoker's rights could be acknowledged only so long as it does not violate non-smoker's rights(refer to Constitutional Court, 2003Hun-Ma457, August 26, 2004, 16-2 KCCR 355, 361). Also, in

the constitutional complaint on the unconstitutionality of Article 16 (3) of the Registration, etc. of Periodicals Act, the Constitutional Court found that, in resolving the conflict between the right to request a corrective report (right to reply) prescribed by the Act and the reporting agency's freedom of speech, harmonious method, through which the functions and effects of all conflicting basic rights can be realized to their full extent, should be sought in order to maintain the uniformity of the Constitution. Therefore, it judged from the viewpoint of whether the purpose of the corrective report request system can be justified under the rule against excessive restriction, and whether the extent of restriction on the freedom of speech, caused by the means prepared to achieve that purpose, is also adequately proportionate in relation to the right to personality (refer to Constitutional Court, 89Hun-Ma165, September 16, 1991, 3 KCCR 518, 527-534).

(3) The Conflict between Workers' Freedom Not to Organize and the Labor Union's Positive right to Organize

Labor union's compulsory organization, whether it is a general compulsory organization or a specific one, may restrict workers' freedom not to organize. As can be seen from the above, the instant provision acknowledges a certain form of compulsory organization to the dominant labor union. Therefore, there is a conflict between the workers' right not to organize and the labor union's right to positive organization (right to compulsory organization).

Article 33 (1) of the Constitution guarantees that, "to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action." Our Court's precedents rule that the workers' right to organize guaranteed by the Constitution only indicates the freedom to organize and not the freedom not to organize, the so-called negative right to organize (refer to Constitutional Court, 98Hun-Ma141, November 25, 1999, 11-2 KCCR 614, 623-624).

Therefore, workers' freedom not to form a labor union, freedom not to be forced to enter into a labor union, and freedom to withdraw from a labor union that he or she had entered into, cannot find its basis as a right connoted in the right to organize guaranteed to workers. Rather, they find their basis from the general freedom of action derived from the right to pursue happiness under Article 10 of the Constitution or the freedom of association under Article 21 (1) of the Constitution. Therefore, even though the conflict between workers' right not to organize and the labor union's positive right

to organize is not a conflict between rights to organization, the matter of conflict can be posed between basic rights - general freedom of action or freedom of association and the positive right to organize - guaranteed by the Constitution.

From the fact that workers can affect the formation of working conditions through forming an equal power with the employer by opposing the employer as a group through formation of a workers' organization such as a labor union, the right to organize has a characteristic of a "liberty right performing the function of social protection" or a "liberty right with the characteristic of a social right" (refer to Constitutional Court, 94Hun-Ba13 etc., February 27, 1998, 10-1 KCCR 32, 44). It is set up as a right different in quality from general civic liberty rights and is constitutionally acknowledged as a right of special status, on its own, separate from the freedom of association.

Compared to such rights, the general freedom of action, being a concrete expression implied in the right to pursue happiness under Article 10 of the Constitution, is a so-called supplementary liberty right (refer to Constitutional Court, 97Hun-Ma345, October 29, 1998, 10-2 KCCR 621, 633; 99Hun-Ba76, October 31, 2002, 14-2 KCCR 410, 428).

Therefore, even when the freedom not to organize and the positive right to organize conflict, it can be seen that the positive right to organize has a more special meaning than the freedom not to organize. Also, considering the fact that the labor union's right to compulsory organization, as it is also a right to livelihood (social right) modifying liberty right, is guaranteed as a more special value compared to individual worker's liberty right, the labor union's positive right to organize is given more importance than the individual worker's freedom not to organize. Therefore, granting a labor union the positive right to organize (right to compulsory organization) cannot be directly concluded as violating the essential aspect of the workers' right not to organize.

(4) Conflict between Workers' Right to Choose Organization and Labor Union's Collective Right to Organize

(A) Method of Review

The instant provision, as seen above, acknowledges the conclusion of a collective bargaining agreement, which forces entry into a particular labor union. Therefore,

worker's individual right to organize (right to choose organization) and labor union's collective right to organize (right to compulsory organization) conflicts in one forum.

In such a case, where the individual right to organize and the collective right to organize conflict, which basic right is superior cannot be concluded according to the ranking of basic rights theory or the principle of balancing competing interests. This is because, while the individual right to organize is the foundation of the constitutional right to organize and the prerequisite of the collective right to organize, collective right to organize is a sine qua non for workers to actually maintain an equal relationship with the employer through an organization organized and strengthened through the individual right to organize. In short, whether it is an individual right to organize or a collective right to organize, one cannot be prioritized and the other pushed back by ranking of basic rights or balancing competing interests.

Therefore, in such a case, in order to maintain the uniformity of the Constitution, we must seek a harmonious method that allows all conflicting basic rights to exhibit their function and effect (interpretation based on harmonization of norms; refer to Constitutional Court, 89Hun-Ma165, September 16, 1991, 3 KCCR 518, 528). Also, principle of balancing competing interests and selective discretion through legislation should be considered in review.

(B) Legitimacy of the Purpose of Restriction

The purpose of the principle of compulsory organization contemplated by the instant provision is to, as seen above, maintain and strengthen the structure of a labor union, which is an organization of workers, and ultimately to contribute to elevating the standing of the whole body of workers. The principle coincides with the constitutional ideal of guaranteeing the right to organize. Therefore, the legitimacy of its purpose is secured. Workers' substantive freedom and rights can only be effectively secured by organization through a labor union. The instant provision exists to effectively guarantee such labor union's right to compulsory organization. Also, such system cannot be said to directly violate the essential aspect of the workers' right to choose an organization. Our Court already made clear that a certain degree of compulsory organization or compulsory association must accompany a labor union in order to secure its bargaining power (Constitutional Court, 98Hun-Ma141, November 25, 1999, 11-2 KCCR 614, 624).

(C) Maintenance of Appropriate Proportionality between RestrictedBasic Rights

A labor union enters into a collective bargaining agreement, which requires workers to join a particular labor union as a pre-condition of employment, for the purpose of maintenance and strengthening of its organization, and such agreement is an effective and appropriate means to achieve that purpose. Compulsory organization through a collective bargaining agreement is a common and universal phenomenon that appeared in the development process of labor movements in various countries such as the U.S. and Germany despite differences in form and degree. Also, it is not easy to contrive an effective alternative means besides using an organizing provision, such as a union shop agreement, in the collective bargaining agreement. Nonetheless, as the labor union's compulsory organization above is inherently accompanied by restriction on the workers' right to choose an organization, there is a need to seek a balance between competing interests. In other words, a certain limit must be established so as not to excessively violate an individual worker's right to choose an organization and maintain the same in harmony.

In such regard, the instant provision limits the scope of a labor union that can legally and validly enforce compulsory organization through collective bargaining agreement to a certain extent. It requires the labor union to be a sufficiently dominant organization to justify the principle of compulsory organization or its negative consequences in personnel actions, including discharge. That is, to be a labor union representing two-thirds or more of the workers working in the workplace concerned.

Also, to protect individual workers from abuse of authority by the labor union in a dominant position, the Act limits the workers' right to choose an organization to the necessary minimum by prohibiting the employer from imposing disadvantages in worker's status for the reason that he or she has been expelled by the dominant labor union. In other words, the instant provision allows the restriction of the workers' right to choose an organization, by compulsory organization, to only when the worker voluntarily withdraws from or does not join a labor union.

Moreover, ultimately, workers can form and strengthen a labor union and can be guaranteed the substantive right to organize through that labor union's activities. Also, individual workers who do not want entry into the dominant labor union, receives the fruits of such activities of the labor union - the working conditions acquired by the labor union.

Therefore, although the labor union's compulsory organization, contemplated by the instant provision, partly has an aspect of restricting individual workers' right to choose an organization, the instant provision seeks balance between the workers' right to choose organization and the labor union's collective right to organize (right to compulsory organization) through means such as granting the power of compulsory organization only to dominant labor unions. Thereby, it maintains appropriate proportionality between two mutually conflicting and restricting basic rights.

(D) Selective Discretion through Legislation

The first goal of the right to organize, guaranteed by Article 33 (1) of the Constitution, is to defend the workers' right to organize against the state's governmental power. However, it has a more meaningful purpose of guaranteeing the substantive autonomy of labor and management on working conditions. It does so by making possible the creation of a socially opposing power, the workers' organization, and thereby achieving social balance in forming labor-management relations. To guarantee the social right aspect of the right to organize, the state should actively form and maintain the actual conditions enabling the workers to exercise their rights (refer to Constitutional Court, 94Hun-Ba13 etc., February 27, 1998, 10-1 KCCR 32, 44, 45). However, while the principle of compulsory organization is a sine qua non to actually maintain equal relations between labor and management through forming and strengthening an organization based on worker's individual right to organize, it also has an aspect of restricting worker's right to choose an organization. Therefore, the legislature should establish the most appropriate boundary that guarantees to the utmost the two basic rights that are in complementary and conflicting relations as seen above. Especially, to which labor union and of what form and method will the right to compulsory organization be acknowledged are matters that belong to the choice and discretion of the legislative-formative power bestowed upon the legislature.

The instant provision, in case of a certain dominant labor union, acknowledges the conclusion of a collective bargaining agreement that requires becoming that labor union's member as a pre-condition of employment. Thus, it forces entry indirectly through the medium of a collective bargaining agreement, avoiding use of the direct means of compulsion. The scope of actual restriction of the right to organize is limited only to the workers' right to choose an organization; the right to organize itself is not wholly deprived. Also, it is not easy to assume a more effective and appropriate means that can be chosen to accomplish the labor unions' compulsory organization. Considering

such facts, the instant provision cannot be said to go beyond the extent of discretion granted to the legislature in selecting the legislative means.

(E) The instant provision constitutes a statutory means of and thus materializes the principle of compulsory organization through a collective bargaining agreement such as a union shop agreement to guarantee labor union's collective right to organize. Although it has an aspect of conflicting with the workers' right to choose an organization, generally it achieves rational harmony between two conflicting basic rights. Also, the restriction maintains appropriate proportionality and the essential aspect of the workers' right to choose an organization cannot be said to be violated.

(5) Therefore, the instant provision does not violate Article 33 (1) of the Constitution, which guarantees the workers' right to organize.

C. Whether the Right to Equality Is Violated

(1) The instant provision facilitates a dominant labor union's maintenance and strength through the medium of a collective bargaining agreement, including a union shop agreement. However, the provision does not extend the benefits of compulsory organization through the same means to a non-dominant labor union (minority labor union). Therefore, discrimination in actual maintenance and strength of an organization can be said to exist.

(2) The principle of equality guaranteed by Article 11 (1) of the Constitution does not mean absolute equality, which denies all discriminatory treatment. Rather, it means relative equality, which denies discrimination without a rational basis in legislation and application of law. Therefore, discrimination or inequality with a rational basis does not violate the principle of equality (Constitutional Court, 92Hun-Ba43, February 24, 1994, 6-1 KCCR, 72, 75).

The reason for the existence of labor unions' compulsory organization is ultimately to contribute to the improvement of overall workers' status by enhancing uniform and organized negotiating power through maintaining and strengthening their organization. The instant provision restrictively allows compulsory organization to dominant labor unions. Also, in deciding the scope of the dominant labor union, the provision strictly limits to an organization representing two-thirds or more of the workers working in the workplace concerned. If such form of compulsory organization is acknowledged, even to

minority labor unions, it is feared that an employer with an anti-union intention may abuse it as a tool to oppress workers' right to organize. Comprehensively considering such facts, the instant provision's discriminatory treatment of minority labor unions and workers, who joined or plan to join them, compared to a certain dominant labor union and its members, has a reasonable basis. Therefore, the instant provision cannot be seen to violate the right to equality.

4. Conclusion

The instant provision is not unconstitutional, and the Court declares so by the consensus of all Justices except Justices Kwon Seong and Cho Dae-hyen who wrote a dissenting opinion in paragraph 5 below.

5. Dissenting Opinion of Two Justices

We do not agree with the majority that the instant provision is not unconstitutional and, therefore, give our dissenting opinion as follows.

Article 33 (1) of the Constitution prescribes, "To improve working conditions, workers shall have the right to independent association, collective bargaining and collective action." This is to elevate the economic status of workers by securing their right to livelihood and improving their working conditions.

Although Article 33 (1) of the Constitution guarantees worker's right to organize, individual worker's freedom not to exercise the right of organization is also constitutionally guaranteed. Despite the difference in opinions on its constitutional basis, there is no divergence of opinion on the point that a worker has the freedom not to organize.

The main text of Article 81 ⅱ of the Trade Union Act clarifies such legal principle by prohibiting "employment of a worker on the condition that he should not join or should withdraw from, a trade union, or on the condition that he should join a particular trade union" as a unfair labor practice.

However, the proviso of Article 81 ⅱ of the Trade Union Act, the instant provision on review, states, "Provided, that in case where a trade union represents two-thirds or more of the workers working in the workplace concerned, a conclusion of a collective

agreement, under which a person is employed on condition that he should join the trade union, shall be allowed as an exception. In this case, no employer shall act against the status of the worker on the grounds that the worker is excluded from the trade union concerned." As such provision allows the discharge of a worker who does not join a particular labor union by requiring the entry into a particular labor union as a pre-condition of employment, it essentially violates the worker's freedom not to organize and right to livelihood.

Free democracy, one of the basic principles of our Constitution, aims to respect all people and to achieve coexistence and prosperity of all people. The purpose of Article 33 (1) of the Constitution is to secure worker's right to livelihood and improve working conditions. Therefore, worker's right to organize and labor union's right to strengthen organization and right to collective bargaining should be exercised in ways that seek every worker's coexistence and prosperity. They are constitutionally protected only when exercised for such purpose. As labor union's right to strengthen organization and right to collective bargaining are acknowledged for the improvement of all workers' status, it cannot adopt discharge, which fundamentally threatens the worker's right to livelihood, as a means even for the improvement of working conditions. Even if a labor union is a dominant one with more than two-thirds of the workers, that labor union cannot have the authority to request the discharge of a worker for not joining or withdrawing from it. Firing a worker, thus, fundamentally denying his or her status as a worker, for the reason of not joining or withdrawing from a particular labor union runs directly counter to the purpose of Article 33 (1) of the Constitution, which seeks to guarantee worker's right to livelihood and enhancement in status. It is also against the principle of coexistence and prosperity and the principle of protection of minorities - principles that free democracy strives for. Therefore, the instant provision cannot be justified by the worker's right to organize or labor union's right to strengthen organization under Article 33 (1) of the Constitution. Also, although the instant provision prohibits discharge of a worker when the worker was expelled by the dominant labor union, the expulsion of the worker is of the labor union's will and not that of the worker. Therefore, such exceptional provision does not ease or justify the restriction on the freedom not to organize and the threat on the right to livelihood of the worker concerned.

Therefore, the instant provision unjustifiably infringes on the worker's freedom not to organize in a way that violates Article 33

(1) of the Constitution.

Justices Yun Young-chul (Presiding Justice), Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun (Assigned Justice), Choo Sun-hoe, Jeon Hyo-sook, Lee Kong-hyun, and Cho Dae-hyen