[노동조합및노동관계조정법위반][공2008하,1717]
[1] The standard for determining whether new employment, etc. to solve vacancies during the period of dispute constitutes a violation of Article 43(1) of the Trade Union and Labor Relations Adjustment Act
[2] In a case where an industrial action was replaced by an employee of the pertinent enterpriser for the performance of duties interrupted during the period of dispute, and such employee was newly employed after his resignation, whether it constitutes a violation of Article 43(1) of the Trade Union and Labor Relations Adjustment Act (negative)
[1] Article 43(1) of the Trade Union and Labor Relations Adjustment Act provides that a trade union’s right to a strike is guaranteed, and it does not restrict the employer’s legitimate exercise of the right to a strike, which does not infringe upon the right to a strike. Thus, new employment made regardless of the right to a strike, such as a person with sufficient labor force, is possible during the industrial action period. Whether new employment, etc. for filling vacancies violates the above provision should not be determined solely on the ground of the ground, but rather be determined by comprehensively taking into account the need for employment during the industrial action period, the necessity of employment, the timing of occurrence of a vacancy, and the timing
[2] If an employer was replaced by a non-trade union member or a trade union member who did not participate in an industrial action during the period of the industrial action during which the industrial action was conducted, and the employer was newly employed as a substitute worker due to the employer’s resignation, then the employer is merely an employee due to the natural decrease that belongs to the legitimate exercise of the employer’s personnel authority and does not constitute a violation of Article 43(1) of the Trade Union and Labor Relations Adjustment Act.
[1] Article 43(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 43(1) of the Trade Union and Labor Relations Adjustment Act
Defendant
Defendant
Attorneys Cho Young-ro et al.
Seoul Eastern District Court Decision 2007No1331 Decided May 15, 2008
The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.
The grounds of appeal are examined.
According to Article 43(1) of the Trade Union and Labor Relations Adjustment Act, an employer may not hire or substitute a person unrelated to the pertinent industrial action during the period of industrial action for the purpose of carrying out the business suspended by the said industrial action, and the person irrelevant to the pertinent industrial action here refers to all persons other than the workers or employers of the pertinent business. This provision is intended to guarantee the trade union’s right to industrial action, and it does not restrict the legitimate exercise of the employer’s right to labor dispute action. Thus, a new employment conducted regardless of the industrial action such as the labor union’s right to labor dispute, such as the reduction of nature, can be possible even during the industrial action period. However, whether new employment, etc. for the filling of vacancies is a violation of the above provision should not be determined with the ground alone, but rather with the need for employment and the timing of occurrence of vacancies and the timing of employment of new workers during the industrial action period. In light of such legal principles, an employer is merely a replacement of an employee who did not participate in the relevant industrial action during the period of industrial action, barring any special circumstances.
According to the facts and records acknowledged by the court below, if the labor union of this case was to be replaced by the full-time strike from June 13, 2006 to the non-indicted 1, the number of employees of the non-indicted 4 company was to be replaced by the non-indicted 6 company's new construction work, the pre-examination of the construction work and the construction work for the construction work for the Cheongbukbuk District Special Construction Work before the strike of this case was conducted by the non-indicted 1 and 2, but the non-indicted 3 did not participate in the strike after the union members participated, and the non-indicted 6 company was to be replaced by the non-indicted 4 and the non-indicted 6 company's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work's new construction work'.
Nevertheless, the lower court found the Defendant guilty of Nonindicted 4, 5, and 10. In so doing, it erred by misapprehending the legal doctrine on the violation of Article 43(1) of the Trade Union and Labor Relations Adjustment Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.
Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)