1. Plaintiff’s ground of appeal

A. (1) The main text of Article 8(1) of the Act on the Establishment, Operation, etc. of Public Officials’ Unions (amended by Act No. 10133, Mar. 17, 2010; hereinafter “Public Officials’ Labor Unions Act”) provides that “matters concerning trade unions or matters concerning the remuneration and welfare of union members and other working conditions” shall be subject to collective bargaining. In the proviso, “matters concerning policy decisions conducted by the State or a local government by its authority under statutes, etc., and matters concerning the management and operation of the relevant agency, such as the exercise of the right to appoint, which are not directly related to working conditions, shall not be subject to collective bargaining.” Meanwhile, Article 4 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 2376, Dec. 14, 2011) provides for matters concerning planning or planning of policies, etc.; matters concerning the organization and exercise of the right to appoint and transfer public officials; matters concerning the organization of an agency, budget compilation and execution thereof; matters concerning management and operation of the administrative agency.”

In full view of the contents of the relevant provisions of the Public Officials Labor Relations Adjustment Act, in order for the State or local governments to be subject to collective bargaining, such as matters concerning policy-making by their authority, exercise of the right to appoint, etc., and matters concerning the management and operation of the relevant agencies, the relevant agency itself must be directly related to the working conditions to the extent that the public official provides public services (see Supreme Court Decisions 2010Du5097, Dec. 11, 2014; 2012Hun-Ba169, Jun. 27, 2013; 2012Hun-Ba169, Jun. 27, 2013).

(2) On the grounds indicated in its reasoning, the lower court determined that: (a) Article 24(3) of the instant collective agreement which provides for prior consultation, prior consultation, etc. with the labor union on personnel measures and Article 35(2), Article 35(5) that provides for prior consultation, prior consultation, etc. with respect to the establishment of municipal ordinances and rules; (b) Articles 15, 38, and Article 18(1) that provide for prior consultation, prior consultation, etc. with respect to the establishment of municipal ordinances and rules; (c) Articles 21, 43(1); (5) Articles 37(1) and (2) that provide for the increase of the class of public officials in technical service and the transition of their general service positions; and (6) Articles 39(1) through (5) and 45(2) that provide for the appointment of members of the personnel committee; and (8) Articles 40(4), 43(4) and (4) of the Enforcement Decree of the Busan Metropolitan City, which limit the authority directly related to the management policy or authority’s authority.

(3) Examining the reasoning of the lower judgment in light of the specific contents of the provisions of the above collective agreement and the evidence duly admitted, the lower court’s determination that recognized the illegality of the provisions of the above collective agreement and the legality of the corrective order thereof is deemed to have been based on the legal doctrine as seen earlier. In so doing, it did not err by misapprehending the legal doctrine on the allocation of the burden of proof, or omitting judgment on the requirements of direct relevance with the working conditions, etc., contrary to what is alleged in the grounds of appeal.

B. The Plaintiff appealed to the part against the Plaintiff regarding Article 3(1) of the instant collective agreement. However, there is no specific ground of appeal as to the petition of appeal or the appellate brief.

2. As to the Defendant’s ground of appeal

A. As to Article 10(3) of the instant collective agreement

(1) In relation to Article 10(3) of the instant collective agreement that stipulates that a prior consultation with a trade union shall be made when the head of the Busan Metropolitan City Young-do Office determines that a trade union shall be held in advance at the time of the appointment of the officers in office and the head of the secretariat of the trade union, and Article 8(1) of the Public Officials' Labor Union Act provides "matters concerning the trade union" as the subject of collective bargaining, and prior consultation under the said collective agreement provision may be deemed to be limited to a member who gives an opportunity to present necessary opinions to the trade union and takes into account the presented opinion as reference materials in order to prevent the normal activities of the trade union from being impeded by arbitrary exercise of personnel rights, and even if such prior consultation was not completed at the time of exercising the right to appoint, the lower court determined that the Defendant's corrective order was unlawful on the ground that the contents of the said collective agreement provision do not violate the essential authority of the head of the Busan Metropolitan City

(2) However, in light of the aforementioned legal principles, matters concerning the exercise of the right to appoint, such as transfer, can be subject to collective bargaining only if the content itself is directly related to the working conditions, and even in this case, it is not permissible to infringe on the essential and fundamental authority of an agency, in light of the foregoing legal principles, it is difficult to say that personnel affairs of the executive officers, etc. of a trade union are directly related to the working conditions of the union members, and as such, there is a possibility that the exercise of the right to personnel affairs of the head of Young-do Busan Metropolitan City through the essential procedure for prior consultation may be restricted in essence, it is

Therefore, the lower court erred by misapprehending the legal doctrine on non-competitive matters, which affected the conclusion of the judgment, on the premise that the contents of the collective agreement clause can be subject to collective bargaining. The ground of appeal assigning this error is with merit.

B. As to Article 12(1) of the instant collective agreement

(1) Article 81 Subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) which prescribes that an employee shall not engage in unfair labor practices prohibits “the act of controlling or participating in the organization or operation of a trade union and the act of providing wages to the full-time officer of a trade union or assisting the operation of a trade union.” However, under the proviso, the term “the act that an employee permits the employer to engage in the activities under Article 24(4) during working hours, the act that the employer permits the employee to engage in the activities under Article 24(4), the act that contributes to the employee’s welfare fund or for the prevention, relief, etc. of economic depression, and the provision of a trade union office at a minimum amount is exceptionally permitted.” Meanwhile, the said provision applies to a public official trade union pursuant to

In full view of the legislative purport and contents of the provisions of the Trade Union Act, including Article 2 subparag. 4(b) of the Trade Union Act, in a case where a trade union has received an aid from an employer to prevent an employer from being economically dependent or melting with economic dependence or to ensure the independence of a trade union by prohibiting the employer from operating expenses of the trade union (hereinafter “operation expense aid”), the act of operating expense aid provided periodically or fixedly by deviating from the act prescribed in the proviso to Article 81 subparag. 4 of the Trade Union Act is deemed as an unfair labor practice prohibited under the main sentence of Article 81 subparag. 4 of the Trade Union Act, and it does not change even if the operation expense aid was obtained from an active demand or a strike by the trade union (see, e.g., Supreme Court Decision 2012Du12457, Jan. 28, 2016).

(2) According to the reasoning of the lower judgment and the evidence duly admitted, the instant collective agreement provides an exclusive office in the office building, and further does not have any provision that limits the scope of the object of the collective agreement by stipulating that “the head of the Young-do Busan Metropolitan City shall provide all the facilities, equipment, vehicles, and house fixtures necessary for its activities,” and thus, does not have any provision that restricts the scope of the object of the collective agreement. Therefore, the said collective agreement provides that the head of the Young-do Busan Metropolitan City shall be obliged to provide all the facilities and equipment necessary for its trade union activities with the materials and equipment, such as books, chairs, and electric facilities, which the trade union should normally keep with the minimum size of the trade union office

Examining the above collective agreement provisions in light of the legal principles as seen earlier, the said collective agreement provisions purport to assist operating expenses exceeding the permissible scope pursuant to the proviso of Article 81 subparag. 4 of the Trade Union Act, and thus, constitute an unfair labor practice under the main text of the same Article.

Nevertheless, the lower court determined otherwise, contrary to its content, that it is possible to interpret the provisions of the collective agreement as “the cost of incidental facilities and fixtures to the extent acceptable by social norms necessary for the operation of offices and offices that a trade union can receive from an employer,” and thus, it is possible for an employer to refuse to pay excessive costs. Therefore, the lower court erred by misapprehending the provisions of the collective agreement itself, thereby recognizing the Defendant’s corrective order

Therefore, such judgment of the court below is erroneous in the misapprehension of legal principles as to the act of subsidizing operating expenses prohibited as unfair labor practices under the main sentence of Article 81 subparagraph 4 of the Trade Union Act and by misunderstanding the contents of the above collective agreement provisions, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding Articles 10 (3) and 12 (1) of the collective agreement of this case is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)