hankyoreh

third from the left)

On May 28, the Constitutional Court affirmed the constitutionality of Article 2 of the Teachers’ Union Act, which provided the legal basis for stripping the Korean Teachers and Education Workers Union (KTU) of its official status. This is a disappointing decision that erodes the principle of the autonomy of labor unions that is enshrined in the South Korean Constitution.

Article 2 of the Teachers’ Union Act prevents dismissed teachers from joining labor unions. Relying on this article, the government stripped the KTU of its legal status in Oct. 2013, even though there are only nine discussed teachers among the KTU’s 60,000 members.

If a labor union that has operated legally for more than 15 years can be made illegal overnight by a government decision, the autonomy of labor unions is just an empty phrase.

Disregarding the facts, the Constitutional Court relied on bizarre hypotheticals to make its decision. “For a dismissed teacher to join the union and exercise the right of collective bargaining and other rights would severely infringe upon the autonomy of the teachers’ union,” the court said in its decision.

The court provides no hint of specifically whose autonomy is being infringed upon when the labor union itself supports the enrollment of dismissed teachers.

A more realistic view was expressed by Justice Kim Yi-su, who wrote the minority opinion. “The government interpreted and executed Article 2 of the Teachers’ Union Act with an extreme literalness and took the radical administrative step of making the union illegal. Consequently, this section of the law can be used to fundamentally infringe upon teachers‘ unions’ autonomy and their right to organize,” Kim said.

In addition, the accepted standard in the international community is that the principle of autonomy means that labor unions themselves must be allowed to determine the qualifications of members.

The International Labour Organization (ILO) has urged South Korea on several occasions to scrap the section of the law that bans dismissed workers from enrolling in labor unions. In briefs submitted to the Constitutional Court, both the International Trade Union Confederation (ITUC) and Education International, a global federation of teachers’ unions, stated that “historically speaking, labor unions have long been recognized as having the right to determine for themselves who can become a member.”

Such a right could also have been deduced through a reasonable interpretation of the Constitution. But by throwing away this opportunity, the Constitutional Court has lowered the value and prestige of the Constitution to a backward level that falls far short of international standards.

The silver lining is that the Constitutional Court concluded that it is not necessarily appropriate to remove the legal status of a teachers’ union that has already registered its establishment and is legitimately operating just because dismissed teachers are members. Thus, the court’s ruling does not immediately legitimize the government’s decision to declare the teachers’ union illegal. Instead, the Constitutional Court declared, the courts must decide this question after undertaking a comprehensive examination of the ratio and roles of dismissed teachers in the union.

A lawsuit that the KTU has filed to reverse the government’s decision to strip it of its legal status is currently being reviewed by an appeals court. We hope that the court will make a wise decision.

Please direct questions or comments to [english@hani.co.kr]