Ministry forgetting its primary role

There is a saying that the pot is calling the kettle black. This adage applies to the Ministry of Employment and Labor, which made the Korean Teachers and Education Workers’ Union an unlawful group without any legal grounds by accusing it of violating the labor law when the ministry itself broke a number of constitutional provisions.

The ministry stripped the legal status of the country’s second-largest teachers’ union because it retains former teachers as its members. The ministry used this authority based on an article in the Labor Union Act’s enforcement ordinances. But the authority does not exist, since the National Assembly removed the government’s power to disband a union from the Labor Union Act in 1987 in order to ensure sovereignty in union organization.

In 1998, the government, out of convenience, restored the article to the Labor Union Act’s enforcement ordinances. It has broken the basic principle that enforcement ordinances can be drawn up only with authorization from the law. It neglected the legislative will to protect and ensure the freedom of union organizations. The government should answer for this constitutional violation since the Constitution is based on the principles of legalism and representative democracy.

The ministry’s self-serving excuse was that what it gave out was an order that does not necessarily require a higher law authority. It also claims that as soon as it defined the union illegitimate, the KTU would lose various rights and benefits as a union, such as the right of collective bargaining and a government subsidy.

Again, what it is saying does not make sense. If what it gave out was an order of execution, the legal status of the KTU should remain intact. In order to strip the union of its legal rights, the government needs a higher law authority.

The sin the ministry has committed is 10 times worse than the KTU, which broke “the law” by keeping a few former teachers in the union despite the Labor Union Act’s enforcement ordinances that only allow eligibility to fully-employed members. The ministry’s breach of the Constitution does not stop here. It violated the principle of proportionality - which prohibits a government authority from exceeding the necessary extent of achieving its objective - that serves as a pillar of the Constitution.

The government cannot punish any civilians by precluding individual rights and interests beyond necessary limits. The Constitution prohibits the government from misusing its power, no matter what good intentions it may have. The ministry was clearly violating this rule by making the 60,000-member union illegitimate because it disobeyed its order and refused to kick out nine former teachers. Moreover, these teachers were wrongfully dismissed for trying to fight against school corruption and irregularities.

The National Assembly scrapped the government authority to disband a union in order to guarantee the freedom and independence of union organizations. The freedom and sovereignty of a labor union is fundamentally protected by the Constitution. It is why advanced countries and the International Labor Organization, in which the National Human Rights Commission and the government hold membership, allow labor unions to set and apply their own guidelines on deciding membership separately from the law.

But the teachers’ union law restricts eligibility in union membership. The law itself is wrong. The ministry committed a bigger wrong by oppressing the union without legitimate means. The flaws and administrative execution that go against the constitutional principles that ensure the collective rights of workers should be fixed. The Labor Ministry should have tried instead to defend the fundamental rights of union workers, and not the other way around.

Today’s constitutionalism is not what the government demands of the people, but what the people demand of the government. The Labor Ministry must respect this principle.

Whatever organization they are affiliated with, the Labor Ministry must do its best to defend the labor rights of workers. It must not forget its primary role of defending law and order.

Translation by the Korea JoongAng Daily staff.

*The author is a professor at Konkuk Law School.

By Han Sang-hee