[2] Whether a part of an employee's subscription to a labor union by another industry or region constitutes a violation of Article 5 (1) of the Addenda to the Trade Union and Labor Relations Adjustment Act prohibiting multiple labor unions (negative)

[3] Whether a disposition rejecting a trade union establishment report is unlawful on the ground that the documents under Article 2 subparag. 4 of the Enforcement Rule of the Trade Union and Labor Relations Adjustment Act were not supplemented (affirmative)

[4] Whether an illegal stay foreigner who lives as an employee in the Republic of Korea can establish a trade union (affirmative), and whether the head of the local labor office, upon receipt of a report on the establishment of the trade union, has the authority to examine the status of domestic stay of union

[2] Part of workers' joining to a labor union by industry or region with a company-level labor union is not in violation of Article 5 (1) of the Addenda of the Trade Union and Labor Relations Adjustment Act prohibiting the establishment of multiple labor unions sharing organizations.

[3] Article 2 subparag. 4 of the Enforcement Rule of the Trade Union and Labor Relations Adjustment Act requires “limited to unit trade unions consisting of two or more business or workplace workers, the number of union members, and the name of representative.” The multiple labor union prohibited under Article 5(1) of the Addenda of the same Act is not a provision to determine whether Article 2 subparag. 4 of the Enforcement Rule of the same Act violates the prohibition of multiple labor union establishment, given the nature of duties within the same workplace. Therefore, the disposition rejecting a trade union establishment report on the ground that Article 2 subparag. 4 of the Enforcement Rule of the same Act, which is not delegated by the law, did not supplement the documents stipulated under Article 2 subparag. 4 of the same Act, is unlawful as it limits the workers’ right to organize under Article 5 of the Labor Union and Labor Relations Adjustment Act without any legal basis.

[4] In addition to the purpose of Article 2 subparag. 1, subparag. 4, Articles 5, and 9 of the Trade Union and Labor Relations Adjustment Act, and Article 5 of the Labor Standards Act, the purpose of the Trade Union and Labor Relations Adjustment Act is to maintain and improve working conditions and enhance workers’ economic and social status by guaranteeing the workers’ right to organize, collective bargaining, and collective action. Even for illegal aliens, it shall be deemed as workers who can establish a trade union as long as they live through wages, wages, and other equivalent income while providing labor in Korea. In addition, even if the Immigration Control Act, which regulates the qualification for employment of foreigners, has the legislative purpose to prohibit the employment of foreigners who are not qualified for employment, is merely to prohibit the factual act of employment of foreigners who are not qualified for employment, and it is difficult to view that the purpose is to prohibit the establishment of workers’ organization to improve working conditions by making an employment relationship with the employers. Therefore, it is unlawful to require the establishment of a trade union and to return a trade union report without any legal basis for examining whether a member of a trade union has legitimate status or not.

2. The defendant's disposition of returning a trade union establishment report against the plaintiff on June 3, 2005 shall be revoked.

3. The total costs of the lawsuit shall be borne by the defendant.

This part of the reasoning of the judgment of the court of first instance is the same as the entry of “1. Ground of Disposition” among the reasoning of the judgment of the court of first instance, and thus, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article

2. Whether the disposition is lawful;

A. The plaintiff's assertion

This part of the reasoning of the judgment of the court of first instance is the same as the statement on whether the instant disposition is legitimate or not, and thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

(c) Markets:

(1) The portion of failure to submit the name, etc. of the business or place of business to which the partner belongs

Article 2 subparag. 4 of the Enforcement Rule of the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Union Act”) requires “the name of a business or place of business, the number of union members, and the name of its representative (limited to unit trade unions comprised of two or more business or places of business)” that are not provided for in each subparagraph of Article 10(1) of the Trade Union and Labor Relations Adjustment Act. If a trade union is organized in one business or place of business, the defendant asserts that Article 2 subparag. 4 of the Enforcement Rule of the Trade Union and Labor Relations Adjustment Act (amended by Act No. 5310, Mar. 13, 1997) provides that a new trade union shall not be established within the organization with the trade union until December 31, 206, which provides that for the enforcement of Article 5(1) of the Addenda of the Trade Union and Labor Relations Adjustment Act (amended by Act No. 5310, Mar. 13, 1997) shall be attached to the establishment report of the Trade Union and Labor Relations Adjustment Act.

Therefore, this paper first examines whether Article 2 subparagraph 4 of the Enforcement Rule of the Labor Union and Labor Relations Act can be applied to the administrative agency to determine whether the provision violates the prohibition of establishment of multiple labor union.

First of all, if a trade union is organized at one business or workplace until December 31, 2006, Article 5 of the Addenda of the Trade Union and Labor Relations Act provides that a new trade union cannot be established with such trade union until December 31, 2006, notwithstanding Article 5 of the Trade Union and Labor Relations Act, with such trade union. The legislative purport of prohibiting multiple labor union is to prevent the appearance of Article 2 of the Trade Union with the nature of the trade union from the standpoint of workers in order to prevent in advance the division related to the organization of the trade union by preventing from hindering the normal operation of the existing trade union in bad faith. From the standpoint of employers, it is necessary to expect the problems such as confusion in collective bargaining and conflicts between the labor union and the labor union, which may arise when a company unit trade union of each business or workplace is established immediately in Korea, to temporarily prohibit the establishment of multiple labor union in the industrial sector with the nature of the regulations that prohibit the establishment of the same workplace from engaging in the simplification of bargaining windows, and thus, it is not necessary to interpret the same category of occupation as the above within the same category of work.

However, Article 2 subparag. 4 of the Enforcement Rule requires the name of a business or each place of business, the number of union members, and the name of a representative, “limited to a unit trade union consisting of workers of two or more businesses or workplaces.” According to the above, multiple labor unions only fall under the category of workers of the same occupation in the same workplace in light of the nature of their duties, and in a unit trade union with different workplaces, even if a unit trade union is organized in one workplace, it does not constitute multiple labor unions. Thus, if Article 2 subparag. 4 of the Enforcement Rule of the Labor Union Act provides for the determination of whether Article 2 subparag. 4 of the same Act violates the prohibition of establishment of multiple labor unions, it appears that it is not necessary to stipulate that “limited to a unit trade union consisting of workers of two or more businesses or workplaces,” and it appears that it is not related to multiple labor unions.

Furthermore, if Article 2 subparag. 4 of the Enforcement Rule of the Labor Union Act does not include a provision to determine whether the establishment report of the labor union is against the prohibition provision of multiple labor union, the disposition of this case is to limit the workers’ right to organize, which is the fundamental rights under the Constitution, and it must be the basis of law pursuant to Article 37(2) of the Constitution. Article 1(1) of the Enforcement Rule of the Labor Union Act provides that the above rule aims to stipulate matters delegated by the Labor Union Act and the Enforcement Rule of the Labor Union Act and matters necessary for the enforcement thereof. In addition, if the report of the establishment of the labor union is not accompanied or supplemented by the documents stipulated in Article 2 subparag. 4 of the Enforcement Rule of the Labor Union Act and the Enforcement Rule of the Labor Union Act, unless any delegation or ground exists to reject the report of the establishment of the labor union, it is unlawful that the defendant's disposition of this case did not supplement the documents stipulated in Article 2 subparag. 4 of the above Enforcement Rule, which is not delegated by the law, as it limits the fundamental rights and the right to organize under the Labor Union Act.

(2) Non-submission of the list of union members and status of stay

(A) According to the above relevant laws and regulations, Article 10 and 12 of the Trade Union and Labor Relations Act, Article 9 of the Enforcement Decree of the Trade Union and Labor Relations Act, and Article 2 of the Enforcement Rule of the Trade Union and Labor Relations Act, which provide for the report of establishment of a trade union, did not provide for the submission of the list of union members, and the defendant requested the members of the trade union to attach the list of union members to confirm the existence of a member's employment qualification on the ground that the member's lawful status of stay should be granted, and the plaintiff's union did not supplement the list, and the plaintiff's union cannot be deemed as a trade union under the Trade Union and Labor Relations Act.

(B) Therefore, in order to establish a trade union, we first examine whether a legitimate status of stay should be granted.

(1) Article 2 subparag. 4 of the Trade Union and Labor Relations Act defines a trade union as "an organization or associated organization organized by workers as its principal agent for the purpose of maintaining and improving working conditions and enhancing the economic and social status of workers" and Article 2 subparag. 4 of the Trade Union and Labor Relations Act provides that where joining by persons other than workers is permitted, it shall not be deemed a trade union. Article 12(3)1 of the Trade Union and Labor Relations Act provides that cases falling under the grounds stipulated in the items of Article 2 subparag. 4 of the Trade Union and Labor Relations Act shall be one of the grounds for return of the report of establishment of the trade union. Thus, a trade union member shall be deemed a worker.

② The contents and purport of the aforementioned relevant provisions are to ensure the independence of a trade union, and thus, it cannot be a trade union if a person who is not an employee is allowed to join the trade union. In such cases, the term “worker who is the principal agent” refers to a person who lives on wages, wages, or other revenues equivalent thereto, regardless of the type of occupation” as prescribed by Article 2(1) of the Trade Union Act.

(3) On the other hand, the right to organize, collective bargaining, and collective action of workers as stipulated in Article 33(1) of the Constitution shall be guaranteed to anyone for the purpose of maintaining and improving working conditions and economic conditions, unless it is limited by Act, unless it is necessary for national security, maintaining order, or public welfare as stipulated in Article 37(2) of the Constitution.

④ Accordingly, in addition to the legislative purport of the above three labor rights, Article 6 of the Constitution that guarantees the status of foreigners, Article 5 of the Labor Standards Act that prohibits discrimination against the working conditions according to nationality, Article 9 of the Labor Standards Act that prohibits discrimination against the union members by race, etc., and the purpose of the Trade Union and Labor Relations Act that guarantees the right to organize, collective bargaining, and collective action by guaranteeing the right to organize and improve the working conditions and enhance the economic and social status of the workers under the Constitution, even for illegal aliens, it shall be deemed as workers who can establish a trade union as long as they actually provide labor in Korea, and live on wages, wages, or other income equivalent thereto.

⑤ In addition, Article 18(1) of the Immigration Control Act provides that when a foreigner intends to be employed in the Republic of Korea, any person shall not employ, arrange, or recommend the employment of, a foreigner who does not have such status of sojourn. The employer who violates this provision shall be punished pursuant to Article 94(5)-2 and 6 of the same Act, and the legislative purpose of prohibiting the employment of a foreigner who is not qualified for employment is to regulate the qualification for employment of a foreigner is to prohibit the factual act of employment of a foreigner who is not qualified for employment. However, if a foreigner actually provides his/her employment, it is nothing more than the purpose of prohibiting the employment contract from being void as a matter of course due to the lack of qualification for employment, and it is difficult to view it as a provision prohibiting a foreign worker who is not qualified for employment from establishing a workers' organization to improve working conditions through equal relations with the employer (However, an illegal foreigner shall be dismissed on the ground that the illegal stay constitutes a justifiable dismissal under Article 30(1) of the Labor Standards Act).

(C) Therefore, illegal aliens are workers permitted to form a trade union and join a trade union. Thus, the defendant is illegal to require the plaintiff union to submit a list of union members without any legal basis to examine whether the plaintiff union members have legitimate status of sojourn, although there is no authority to examine whether the plaintiff union members of the plaintiff union have legitimate status of sojourn.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation on the premise that the disposition of this case is unlawful shall be accepted on the ground that it is reasonable, and the judgment of the court of first instance which has different conclusions shall no longer be maintained, and it shall be revoked and it is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge) and Lee Jae-young