In general, public official is elected or appointed by the nation and they work for the government and public authorities by public law. Among them, people who provide their labor for the public service can have not only the constitutional status as p...
In general, public official is elected or appointed by the nation and they work for the government and public authorities by public law. Among them, people who provide their labor for the public service can have not only the constitutional status as public official but also the status as an employee. Although public officials are employees, they are very different from laborers. Laborers have labor relation by an employment contract and they have determination system for working conditions which is based on an agreement between the people directly related. However, public officials have labor relation through administrative action, appointment and they have determination system for working conditions through the legislation. Also, the constitutional rights which are guaranteed to employees are limited range to the status as public official is unaffected, because to public official, the status of public official has precedence over the status of laborer.
Working condition of a public official is generally decided through the legislation and the budget. It is known as the legality of working condition. Unlike the laborer, the reason why working condition of a public official is decided by the legislation and so on is a public official works for the government with the authority which is provided from nation. The other reason is that the expense for working condition is covered with taxes from nation. Therefore, democratic legitimacy from people has to be emphasized than intention between the people who are directly related to decide working condition decision. Also, depending on the legality of working condition of a public official, when working condition of a public official is decided through the legislation and so on, the country has duty to make proper working condition in requital for the rights limit by the status of public officials and the guarantee of stable management in public official system. The guarantee of proper working condition has to be made through balanced legislation by the decision from the people who have legislative power. However, to guarantee this, above all things, a public official who is affected directly from working condition needs system which can make them involved both directly and indirectly in the process of working condition decision. We can find that the introduction of a public official’s participation to determination system for working conditions in foreign countries. It is the system to overcome the limit of a public official’s legality of working condition. A public official’s participation to determination system for working conditions can be various forms. However, the most ideal form is the participation system based on labor’s three primary rights.
In clause 1 of article 33 of Constitutional law, it prescribes the guarantee of labor’s three primary rights. In the clause 2, it says that among public officials, only the officials who are chosen by the legislation can have guarantee of labor's three primary rights so that both limit and guarantee of labor’s three primary rights exist. The reason of the difference between a public official’s three primary rights and three primary rights for laborer is the distinctiveness from the status and the duty by article 7 of Constitution law. The different guarantee of labor’s three primary between public official and normal laborer leads to the different working condition decision between public official and laborer. Unlike laborers decide the working condition by the agreement of the people directly related, public officials’ working condition is decided by the legislation and so on. Thus, meaning of labors’ three primary rights guarantee about working condition decision is different. The legality of working condition is fundamental in a public official’s determination system for working conditions. In the system, effect of the collective agreement by the agreement between government and public officials must have limit unlike normal labor relation. In national public service labor union law, it denies the collective agreement for working condition which is prescribe in the laws and it only provide the duty to make the government faithfully fulfill. Therefore, in labor relation of a public official, the meaning of labor’s three primary rights guarantee and the collective agreement has stronger meaning of participation in the decision process by legislation than direct working condition decision in normal labor relation. In other words, labor’s three primary rights guarantee for public officials is procedural guarantee which can get by the group decision making in the decision making system through legislation and so on, while labor’s three primary rights guarantee for laborer can be the guarantee of autonomous structure for decision of working condition.
In conclusion, it needs improvement of present national public service labor union law to make effectiveness of a public official’s determination participation system for working conditions following labor’s three primary rights of the public official. First, through the legislation and so on, we need to confirm the duty through the materialization of the government effort for fulfillment of collective agreement. Also, about the government’s faithful performance of a duty, it is need to take steps to compel by law which can help that actual collective agreement to be reflected in the process of public official’s determination system for working conditions.
Keyword: Working condition of a public official, Legality of working condition, Public official’s determination system for working conditions, Public official’s three primary rights, National public service labor union law, collective agreement between government and public officials