This thesis analyzes contents and actual conditions of essential minimum services in Korea and deduces problems of the service system. Essential minimum service system has been enforced for 4 years and it is time to review to see whether it is headed ...
This thesis analyzes contents and actual conditions of essential minimum services in Korea and deduces problems of the service system. Essential minimum service system has been enforced for 4 years and it is time to review to see whether it is headed toward right direction. This thesis introduces essential public services in Italy especially. By analyzing contents and conditions of Italian essential public services, it tries to figure out some ideas can be introduced in Korean system. Based on these ideas, this thesis suggests ideal directions that Korean system could go forward.
Previous Trade Union and Labor Relations Adjustment Act had a rule that the official authority can directly intercept in the situation and arbitrate the parties. Based on this rule, the Chairman of the Labor Relations Commission could decide whether the case should be sent to arbitration as the Selected Committee recommended. In this situation, arbitration process would start without consideration of the interested parties' opinions.
These kinds of direct arbitration is far from 'consents of the interested parties' which is the true nature of arbitration. In this case, once the direct arbitration starts, opposing results may come out which results in prohibiting strike. Due to this effect, it has been a long discussion whether direct arbitration is constitutional or not.
In order to end such discussions, Trade Union and Labor Relations Adjustment Act amended in December 30 2006. The new law abolished direct arbitration in essential public services and rather allowed strikes in essential public services in a certain condition. This is called 'essential minimum services to be maintained'.
It has been 4 years since the 'essential minimum services to be maintained' system be in force. However, there are some problems of the system pointed out through concrete agreement in each work places. The scope of the essential minimum services, the effect of the work place agreement, some points arising while the Selected Committee in the Labor Relations Commission deals with the case, excluding the user from certain protection, effect of the strikes are such problems mentioned.
In Italy, they have separate regulations for strikes in public sector. They use 'i servizi pubblici essenziali' which is very similar to the 'essential public service' used in Korea rather than 'essential service' that ILO suggests. Therefore, reviewing Italian public strike regulations and protections would give some related suggestions to Korean system.
In Italy, due to the increase number of strikes in public sector, Strikes Regulations Act was introduced in 1990. However, there are some criticisms on the effect of the regulations and the Italian government amended the law in 2000. The law mentioned in this thesis for essential public service is the 2000 amended law that is supplemented from the 1990 Act.
Strike regulations in Italy stipulates it as a duty to conclude agreement on essential public services. In the agreement, there should be articles about precaution process, declaration of strikes, disclosure of related information, duty to give advanced notice, strike periods, sanctions and punishment, return to work order. The Essential Service Security Committee decides the effect of the agreement and arbitrates on the interpretation of each articles of the agreement. The Committee is also in charge of prevention of dispute and decide whether to apply sanctions to the parties or not.
Italian system suggests that although the law itself defines 'essential public service', the actual concrete scope of the service should be decided by the Employee and Employer autonomously. Also some other advantages of the Italian system could be these points that there is Essential Service Security Committee to manage essential public services professionally, the Employee and Employer participate in the issue freely, the government intercepts the least, users of the system are protected through the law, the trade union and the employer are subjected to sanctions in a certain point, and workers are to return to work by order.
Essential minimum services to be maintained are to harmonize rights to strike and public interest, not to restrict the rights to strike in essential public service. The purpose of this system should be realized based on free agreement between the employee and employer. Based on this idea, this thesis suggest some methods to improve essential minimum services to be maintained system in Korea.
First, the phrase 'daily life of the public' in the definition of the 'minimum services to be maintained' must be more concrete and the Employee and Employer shall decide the scope of the service autonomously.
Second, a professional committee should be formed rather than current Special Mediation Committee. The right members of the committee should be chosen by the interested parties freely.
Third, based on principles concerning bargaining, 'both or either of the parties in labor relations' in Article 42-4(1) of the Trade Union and Labor Relations Adjustment Act shall be amended as 'both parties in labor relations'.
Forth, to protect the users, there should be some process where the user can speak out his voice when making the autonomous negotiations and deciding the results. Also, during the strike in essential public service, the users, which means the people, shall be informed about the strike.
Fifth, to maintain minimum services during the strike in essential public service, the employers are to be have some duties as the trade unions have in the current Act.
Sixth, Sanctions in Korean Act are excessive restrictions that are not considering the purpose of system. In this respect, Article 89-1 that stipulates sanctions shall be repealed.
Last, the essential minimum services to be maintained are to protect the public for the least. However, the Act allows substitute work which is double sanctions on rights to strike. Therefore, the Article 43-3 and 43-4 which allow substitute work shall be repealed.