A. Background of the Case
In this case, the Constitutional Court decided that the provisions of the Registered Security Guard Act, which prohibit registered security guards from engaging in labor campaigns, do not conform to the Constitution.
The complainants, who were registered security guards, filed a constitutional complaint, claiming that Article 5 Section 4 of the Registered Security Guard Act, which prohibits labor campaigns (hereinafter referred to as "Labor Campaign Prohibition Provision") by applying Article 66 Section 1 of the State Public Officials Act mutatis mutandis, infringed on their fundamental rights.
The Constitutional Court had previously declared constitutional Article 11 of the Registered Security Guard Act, which provides that any person who participates in labor campaigns in violation of Article 66 Section 1 of the State Public Officials Act shall be subject to criminal punishment (2004Hun-Ba9, July 31, 2008).
B. Summary of the Decision
The Constitutional Court decided that the Labor Campaign Prohibition Provision infringed on the three basic labor rights, for the following reasons.
As a rule, registered security guards must be guaranteed the three basic labor rights pursuant to Article 33 Section 1 of the Constitution, because they are not public officials who bear responsibility for the people and whose status and political neutrality are guaranteed pursuant to Acts, but merely workers under a labor contract with the employing party. Although the public nature of the duties of registered security guards may form the basis for limiting the three basic labor rights, registered security guards, unlike the police, only perform the duties of police officers to the necessary extent for the purpose of guarding a limited area. Further, the guarantee of the status of registered security guards is weak compared to public officials, as it is natural they resign when the employing party annuls their assignment or cut staff. Therefore, the three basic labor rights of registered security guards, who are general workers, should not entirely be restricted on the grounds of the public nature of their duties.
Meanwhile, it is highly necessary to guarantee the three basic labor rights to registered security guards who work at places other than government agencies or local governments, because their working conditions are poorer than registered security guards who work at such places, not to mention public officials. Unlike registered security guards who work at government agencies or local governments, their salaries and various allowances are prescribed and announced by the Commissioner General of the Korea National Police Agency, and the relevant working conditions are prescribed pursuant to the rules of employment or labor contracts of individual workplaces. Therefore, in order for registered security guards who work at places other than government agencies or local governments to determine their working conditions on an equal level as their employers, they must not be flatly denied the three basic labor rights.
Due to concerns that a declaration of simple unconstitutionality for the above reasons will create disorder, by allowing registered security guards that should be subject to a restriction of the three basic labor rights to exercise them in their entirety, the Constitutional Court ruled that the Labor Campaign Prohibition Provision does not conform to the Constitution and ordered its temporary application.
C. Aftermath of the Case
There were views that the fact that the Constitutional Court had reviewed whether it was appropriate to completely deny the three basic labor rights based on the duties and treatment of registered security guards was a very positive development (Cho Seong-Ho, Interpreting Court Decisions, The Law Times, November 2, 2017).
Following this decision, a proposal for amendment of the Registered Security Guard Act, to permit registered security guards to enjoy the right to association and the right to collective bargaining among the three basic labor rights, was submitted.