직장폐쇄 법리의 재검토

Abstract

쟁의행위는 헌법과 노동조합 및 노동관계조정법에 따라 그 목적ㆍ방법 및 절차에 있어서 법령 기타 사회질서에 위반되지 않는 범위 내에서 근로조건의 유지ㆍ개선과 근로자의 경제적ㆍ사회적 지위의 향상을 도모하기 위한 목적을 위할 때 정당성이 있는 행위로 판단한다. 근로자에게 기본권인 노동3권의 하나로 특별법적인 지위에서 인정되고 있는 쟁의행위에 대항하는 사용자의 직장폐쇄 행사는 노동조합 및 노동관계조정법에 규정하고 있으나 인정 근거와 법적성질은 법에 규정되어 있지 않기에 직장폐쇄의 본질을 어떻게 보는지에 따라 그 효과에 대한판단도 달라질 수 있기에 직장폐쇄 법적근거에 따른 요건과 효력발생에 대해 논의하고자 한다. 본 논문은 사용자의 쟁의행위인 직장폐쇄의 법적성질과 성립요건 및 그 효과에 대해 이론과 판례를 살펴보고 양 당사자의 행위가 중첩되었을 때 법적근거와 노동조합 및 노동관계조정법에서 정당한 쟁의행위 효과로 보장된 민사면책과 형사면책에 대한 해석도 함께 검토하여 헌법에서 보장하는 기본권을 조화시켜 해석하는 방안에 중점을 두어 살펴보았다. 또한 노동환경 변화에 따라 노동조합 및 노동관계조정법상 근로자로 인정된 특수형태근로종사자와 노동조합 정당한 쟁의행위의 수인의무 주체를 확대한 대법원과 하급심 판례를 검토하여 노동3권 보장과 함께 양 당사자가 힘의 균형을 이룰 수 있는 해석 방안을 시도하고자 한다.;The purpose of the study is analysis of judicial precedents of‘Lock-out’in response to collective action to improve working conditions, according to Article 33 of the Constitution and application criteria for lock-out due to changes in the labor environment. First, the‘the principle of equity’which is necessary to balance power between trade unions and employers, allows lock-out. And the grounds of lock-out can be found in the property rights and the freedom and creative initiative of enterprises and individuals in economic affairs which stipulated in the Constitution Acts. Therefore, since not only industrial action by trade union, but also industrial action by employers are permitted under the Constitution, both parties' industrial action over each other must be interpreted under one Constitution order. Also, since industrial action by trade union may take place in various forms such as strikes and sabotage, it is not necessary to limit the effectiveness and nature of lock-out to exemption from the obligation to pay wages. Judicial precedents do not provide specific criteria and grounds for the decision on which of the parties will be granted priority in the event of colliding of constitutional rights when legitimate industrial action between trade union and employers, or for grounds for the establishment of crime against union member refusal to evacuate or housebreaking under Criminal law. To make up for the gap in interpretation, the adjustment of the act of dispute needs to be based on the principle of harmonization of property rights and the right to collective action. In other words, the interpretation criteria based on the‘principle of equity’are necessary. As one interpretation method,'Obligation of Employer to Acceptance’and‘the Doctrine of an Abuse Prohibition of Right’ can be the standard. With the development of industry, ‘The Types of Employment’ have diversified, and workers who are relatively less dependent and non-exclusive than traditional workers have emerged. Therefore, judicial precedents have expanded the status of workers and employers under the Trade Union and Labor Relations Adjustment Act(hereafter, it is called 'TULRA'), and the impact of these changes in the labor market on lock-out have been discussed. There are three main types of discussions regarding lock-out that accompany changes in the labor market. First, persons in special types of employment, such as Platform worker or Gig worker, has emerged, there are changes in the way trade unions engage in industrial action, and changes in the location of industrial action, such as online. Second, determination of the expanded the status of employers by expanding the status of worker under the TULRA for Special Employment Workers with subcontract or business contract characteristics. Finally, the principal contractor's obligation to Acceptance of the dispute action of indirectly employed workers (union members belonging to subcontractors). In order to respond to the changes mentioned above, discussion is necessary considering the following. Lock-out against actions which cannot be regarded as industrial action is not justified. This is because lock-out should be conducted only after the trade union commences an industrial action. However, industrial action on online must be allowed to be lock-out. Therefore, lock-out should be discussed, including online acts of dispute. Even if Special Employment Workers have the status of workers under the TULRA, such fact alone does not constitute that the person requested by the worker in special type has the status of an employer under the TULRA. The status of employers under the TULRA must be determined on the basis of the parties' will and the principles of equity, and I hope that detailed criteria will be compiled through the Committee on Freedom of Association(ILO)’s ‘social dialogue’ recommendation. Based on the Supreme Court's precedent that recognizes contractor's obligation under Constitutional Labor Rights, the scope of the principal contractor's obligation to Acceptance of industrial action of indirectly employed workers can be specifically discussed. At the conclusion, although lock-out is executed as countermeasures and defensive measures against industrial action by trade union, the‘principle of equity’ should always be kept in mind to ensure that essential aspect of the fundamental rights of workers and employers are not infringed.