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The legislation on the so-called "Industrial Relations Advancement" (revisions of three laws: Trade Unions and Labor Relations Adjustment Act, The Act on Worker Participation and Promotion of Cooperation, and Labor Standards Act), which has been pressed for as part of the Industrial Relations Reform program, was passed at the plenary session of the National Assembly on December 22, 2006 and is scheduled to take effect in July 2007.
The major contents of the legislation include postponing the enforcement of the articles on permission of multiple enterprise-level trade unions and ban on employers' payment of wages to full-time unionists for three years from January 1, 2007 to December 31, 2009 by way of rewriting of the addenda of the law. During the grace period, labor, management, and the government are to have intensive discussions at the Tripartite Commission on measures to minimize confusion due to permission of multiple enterprise-level trade unions, and measures for financial independence of unions so that they can assume the payment of wages to full-time unionists.
The Genesis of the regulation of the ban on employers' payment of wages to full-time unionists goes to the so-called Reform Drive of President Kim Young-Sam's Government in 1996. On December 26, 1996, the Government initiated the amendment of the Labor Relations Law, which triggered the nationwide protest actions of the unionists, intellectuals and the civic movement. As a result, the amendment of the Labor Relations Law in 1996 became practically null and void, and the new legislation was accepted in on March 13, 1997. However, the regulation of the ban on employers' payment of wages to full-time unionists survived the rewriting of the law with a grace period of five years.
The grace period, which was to end on December 31, 2001, was once prolonged to another five-year period in February 2001 with a Triparte Agreement with the Federation of Korean Trade Unions(FKTU). The second national center, the Korean Confederation of Trade Unions(KCTU), was ignored at the round table.
The postponement of the enforcement of the ban on employers' payment of wages to full-time unionists in December, 2006 is the third measure to delay the enforcement of the rule, so that it made the total grace period 13 years. This time again, the KCTU was not invited to the agreement of the postponement.
As regards the issue of the payment of wages to full-time union officials the ILO Freedom of Association Committee noted in March 1998 that the KCTU considers that the effect of this provision will be harmful for the union movement in Korea which is mostly characterized by small enterprise-level unions with very limited resources.
The Committee observed that the FKTU, for its part, is of the view that this provision should be repealed since this issue is a matter to be dealt with by employers and unions and not to be determined by legislation.
And the Committee noted that while some management representatives appear to be unconcerned about the current practice of paying wages to full-time union officials, others have strong contrary views which are reinforced by apprehension concerning the effects of the introduction of multiple trade unions at the enterprise level.
Finally, the Committee considered that the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference. It therefore called upon the Government of Korea to repeal section 24(2) of the TULRAA.
In the meantime, the Supreme Court of Korea has difficulties to interpret the rules of the full-time union officers with the addenda. In research of the laws and practices in Germany and the United States, it was found out that there are positive rules which allow the payment to the full-time union officers, not the negative rules.
In view of the international and comparative labor law, the further postponement of the enforcement of the controversial regulations will be meaningless. The regulations shall be repealed without any alternative rules, so that the issue may remain as the topic of the social partners.
The major contents of the legislation include postponing the enforcement of the articles on permission of multiple enterprise-level trade unions and ban on employers' payment of wages to full-time unionists for three years from January 1, 2007 to December 31, 2009 by way of rewriting of the addenda of the law. During the grace period, labor, management, and the government are to have intensive discussions at the Tripartite Commission on measures to minimize confusion due to permission of multiple enterprise-level trade unions, and measures for financial independence of unions so that they can assume the payment of wages to full-time unionists.
The Genesis of the regulation of the ban on employers' payment of wages to full-time unionists goes to the so-called Reform Drive of President Kim Young-Sam's Government in 1996. On December 26, 1996, the Government initiated the amendment of the Labor Relations Law, which triggered the nationwide protest actions of the unionists, intellectuals and the civic movement. As a result, the amendment of the Labor Relations Law in 1996 became practically null and void, and the new legislation was accepted in on March 13, 1997. However, the regulation of the ban on employers' payment of wages to full-time unionists survived the rewriting of the law with a grace period of five years.
The grace period, which was to end on December 31, 2001, was once prolonged to another five-year period in February 2001 with a Triparte Agreement with the Federation of Korean Trade Unions(FKTU). The second national center, the Korean Confederation of Trade Unions(KCTU), was ignored at the round table.
The postponement of the enforcement of the ban on employers' payment of wages to full-time unionists in December, 2006 is the third measure to delay the enforcement of the rule, so that it made the total grace period 13 years. This time again, the KCTU was not invited to the agreement of the postponement.
As regards the issue of the payment of wages to full-time union officials the ILO Freedom of Association Committee noted in March 1998 that the KCTU considers that the effect of this provision will be harmful for the union movement in Korea which is mostly characterized by small enterprise-level unions with very limited resources.
The Committee observed that the FKTU, for its part, is of the view that this provision should be repealed since this issue is a matter to be dealt with by employers and unions and not to be determined by legislation.
And the Committee noted that while some management representatives appear to be unconcerned about the current practice of paying wages to full-time union officials, others have strong contrary views which are reinforced by apprehension concerning the effects of the introduction of multiple trade unions at the enterprise level.
Finally, the Committee considered that the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference. It therefore called upon the Government of Korea to repeal section 24(2) of the TULRAA.
In the meantime, the Supreme Court of Korea has difficulties to interpret the rules of the full-time union officers with the addenda. In research of the laws and practices in Germany and the United States, it was found out that there are positive rules which allow the payment to the full-time union officers, not the negative rules.
In view of the international and comparative labor law, the further postponement of the enforcement of the controversial regulations will be meaningless. The regulations shall be repealed without any alternative rules, so that the issue may remain as the topic of the social partners.
#노조전임자
#복수노조
#교섭창구
#전임자 급여지급
#경비원조
#부당노동행위
#유예기간
#노사정위원회
#휴직상태
#업무상 재해
#채무적부분
#급여청구권
#중재재정
#노사관계 개혁위원회
#독일금속산업노동조합
#종업원평의회
#사업장공동 결정법
#사업장내 기간요원
#독일노동조합연맹
#Released time
#Official time
#IG Metall
#Betriebsrat
#Betriebsverfassungsgesetz
#Vertrauensleute
#DGB
#Full-time Union Officer(Official)
#Tripartite Commission
#Federation of Korean Trade Unions(FKTU)
#Korean Confederation of Trade Unions(KCTU)
#ILO Freedom of Association Committee
#Trade Unions and Labor Relations Adjustment Act(TULRAA)
목차
Ⅰ. 문제의 제기
Ⅱ. 관련 대법원 판례
Ⅲ. 가설의 재검토
Ⅳ. 독일의 경우
Ⅴ. 결론
〈Abstract〉
참고문헌 (0)
참고문헌 신청이 논문과 연관된 판례 (2)
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대법원 1995. 4. 11. 선고 94다58087 판결
가. 노조전임자라 할지라도 사용자와의 사이에 기본적 근로관계는 유지되는 것으로서 취업규칙이나 사규의 적용이 전면적으로 배제되는 것이 아니므로 단체협약에 조합전임자에 관하여 특별한 규정을 두거나 특별한 관행이 존재하지 아니하는 한 출·퇴근에 대한 사규의 적용을 받게 된다.
자세히 보기 -
대법원 1995. 12. 21. 선고 94다26721 전원합의체 판결
[1] 일반적으로 임금은 직접 근로자에게 전액을 지급하여야 하므로 사용자가 근로자에 대하여 가지는 채권으로서 근로자의 임금채권과 상계를 하지 못하는 것이 원칙이나, 계산의 착오 등으로 임금이 초과 지급되었을 때 그 행사의 시기가 초과 지급된 시기와 임금의 정산, 조정의 실질을 잃지 않을 만큼 합리적으로 밀접되어 있고 금액과 방법이 미리
자세히 보기
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