[2] Whether a special mediation committee under the Trade Union and Labor Relations Adjustment Act fails to present a mediation proposal or makes a conditional recommendation to refer to arbitration is illegal (negative)

[3] Whether a decision of the chairperson of the National Labor Relations Commission to suspend referral to arbitration is allowed under the Trade Union and Labor Relations Adjustment Act (affirmative with qualification)

[2] The special mediation committee under the Trade Union and Labor Relations Adjustment Act has tried to mediate the issues between the labor and management, but it is not possible to present a mediation proposal because it is difficult to present a mediation proposal due to a significant difference between the labor and management, and the case where mediation is terminated without presenting a mediation proposal under Article 48(6) of the Labor Relations Commission Regulations. Thus, the special mediation committee's failure to present a mediation proposal cannot be deemed unlawful, and the decision to refer a case to arbitration is not unlawful. According to Article 74(1) of the Trade Union and Labor Relations Adjustment Act, the special mediation committee can decide to refer a case to arbitration. According to Article 74(1) of the Trade Union and Labor Relations Adjustment Act, the special mediation committee's recommendation should consider the purport of the current law which has priority over the autonomous dispute resolution of the labor and management (see Articles 47 and 52 of the same Act). Thus, the authority to recommend is interpreted to include the authority to recommend a case to refer a case to arbitration, if necessary for autonomous dispute resolution of the labor and management.

[3] In light of the purport of the current law giving priority to private mediation in the mediation of labor disputes, the decision to refer to arbitration which is caused by the suspension of labor and management's autonomous bargaining shall be deemed to have the limitation to function as an exception and complementary to the resolution of disputes between labor and management. Therefore, in order to achieve the purpose of the Trade Union and Labor Relations Adjustment Act, which aims to contribute to the maintenance of industrial peace and the development of national economy by enhancing autonomy and accountability between labor and management, the decision to refer to arbitration shall be made with careful caution, and barring special circumstances such as where the postponement of such decision is used only as a means to substantially restrict industrial actions themselves, the decision to postpone the referral to arbitration by the chairperson of the National Labor Relations Commission shall be allowed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The following facts are not disputed between the parties, or can be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence Nos. 1, 3-1, 2, 4-6, and 7-1 through 5.

A. The Intervenor Corporation is a corporation running railroad transport service business with 33,800 full-time workers having 139 full-time business places in Seo-gu Daejeon, Seo-gu, Daejeon, and is a trade union consisting of the Intervenor’s workers as its target, etc.

B. From August 31, 2005 to November 4, 2005, the Plaintiff and the Intervenor did not reach an agreement but engaged in collective bargaining over 43 occasions including 6 bargaining and 37 working negotiations. Accordingly, pursuant to Article 53 of the Act on November 10, 2005, the Plaintiff’s application for mediation of a labor dispute to the National Labor Relations Commission was defective, and the Special Coordination Committee organized by the National Labor Relations Commission pursuant to Article 72 of the Act, established by the National Labor Relations Commission on November 25, 2005 through two prior Coordination Committee (the first Coordination Committee, November 17, 2005 and November 23, 2005), and tried to coordinate the issues between the labor and management pursuant to 209 items, but it was difficult to present a mediation proposal because it is difficult to present a mediation proposal due to a significant difference between the labor and management.

C. However, at the Special Arbitration Committee held on November 25, 2005, the Plaintiff submitted to the National Labor Relations Commission a letter of commitment that “to negotiate in good faith without strike until December 16, 2005 in order to make a decision by means of autonomous bargaining.” The Special Arbitration Committee recommended the National Labor Relations Commission to refer the relevant place of business to arbitration in respect of the Plaintiff’s intent of voluntary bargaining, and “if it is highly likely that a trade union will withhold the referral of arbitration and not comply with the commitment, it will recommend that it refer the relevant place of business to arbitration.”

D. Pursuant to Article 75 of the Act, the Defendant requested the public interest members to present their opinions on the recommendation for conditional referral to arbitration. On November 25, 2005, the Defendant presented an opinion that “If the Plaintiff failed to comply with the said commitment, or if it is certain that the industrial action will result in an industrial action, it would be reasonable to refer to arbitration.”

E. On November 25, 2005, the Defendant notified the Plaintiff and the Intervenor of the decision to suspend the submission to arbitration that “The submission to arbitration shall be deferred by December 16, 2005, but if the Plaintiff is highly likely to go through an industrial action without complying with the commitment, it shall be immediately referred to arbitration.”

F. After that, on December 16, 2005, the Plaintiff submitted a new letter of undertaking to negotiate faithfully without any strike until January 31, 2006. The Defendant, on December 16, 2005, notified the Plaintiff and the Intervenor that they would again suspend the submission of the Plaintiff’s undertaking and the Plaintiff’s recommendation to suspend the submission of the referral to arbitration by November 25, 2005 and the public interest members’ opinions by November 31, 2006. However, on January 31, 2006, the Plaintiff cannot make a promise to refrain from the referral to arbitration more. However, the Defendant, taking into account the fact that the labor-management continues to negotiate and the specific strike schedule is not established, the Defendant, on January 31, 2006, notified the Plaintiff and the Intervenor of the decision to postpone the referral to arbitration to the public interest members to the maximum extent possible, to guarantee the Plaintiff’s basic right to negotiate and labor rights by means of labor-management autonomy.

G. On February 7, 2006, the Plaintiff continued to conduct collective bargaining with the Intervenor corporation on March 1, 2006 at around 01:00, when the Dispute Countermeasure Committee resolved to conduct collective bargaining with the Intervenor corporation on March 1, 2006. However, the negotiations between labor and management was finally displayed on February 28, 2006.

H. Accordingly, on November 25, 2005, the defendant decided to refer to arbitration to the effect that "the labor union continued voluntary negotiations, but did not find the final agreed point on the issues, and the plaintiff gives notice of the general strike, but it is anticipated that the daily life of the general public would be remarkably endangered and the national economy would be substantially impeded at the time of the strike, and the referral to arbitration shall be decided at 21:00 on February 28, 2006," taking into account the recommendation of conditional referral to arbitration and the opinion of the public interest members. On the same day, the defendant served the plaintiff and the intervenor on the same day.

2. The plaintiff's assertion

A. The ex officio arbitration system is in violation of Article 11(1) of the Constitution that provides for the principle of equality by giving discriminatory treatment to workers engaged in essential public-service businesses without reasonable grounds, and thus, it is unlawful to make the instant decision to refer to arbitration based on such unconstitutional provision, since it violates Article 11(1) of the Constitution that provides for the principle of excessive prohibition, since the trade union is forced to submit to arbitration at the discretion of the Labor Relations Commission, which is an administrative agency, before the industrial action is conducted, and there is no restriction on the form of industrial action prohibited for fifteen days after the decision to refer to arbitration.

B. The decision to refer the instant case to arbitration is unlawful because it violates the provisions of the law or is in fact subject to punishment, thereby deviating from and abusing discretionary power.

(1) In order to determine the referral to arbitration, the Special Arbitration Committee did not present a proposal, even though it should have conducted a prior conciliation and presented a proposal of mediation. The conditional decision of the Special Arbitration Committee did not recommend the referral to arbitration as a result of the lack of legal grounds. Therefore, the instant decision of the referral to arbitration was made without the special Arbitration Committee’s recommendation and without the Special Arbitration Committee’s recommendation.

(2) On February 28, 2006, when three months from November 25, 2005, the period of mediation expired, the Defendant decided to refer the case to arbitration only after leaving four hours of the scheduled time of the strike. This is an abuse of the Defendant’s discretionary power to prevent the Plaintiff’s strike by means of preventing the Plaintiff’s strike, including (i) a recommendation by a special adjustment committee, and (ii) another public interest member’s opinion should be heard; and (iii) a legal provision has been de facto penalized in the following respect. In other words, the Defendant’s submission of the Plaintiff’s written promise was made based on the Plaintiff’s written promise, and (iv) a negotiation of the second written promise was made on January 31, 2006, when the Plaintiff did not submit the Plaintiff’s written promise.

C. Therefore, the instant decision to refer to arbitration is unlawful as above, and its illegality is so serious and clear as to be null and void, and thus, it is primarily sought confirmation of its invalidity and sought revocation in preliminary order.

3. Relevant statutes;

【Trade Union and Labor Relations Adjustment Act】

Article 1 (Purpose) The purpose of this Act is to maintain and improve the working conditions of workers, improve their economic and social status by guaranteeing the right to organize, collective bargaining, and collective action as prescribed by the Constitution, and to contribute to the maintenance of industrial peace and the development of the national economy by preventing and resolving industrial disputes through the fair adjustment of labor relations.

Article 63 (Prohibition of Industrial Actions during Period of Arbitration) When a labor dispute is referred to arbitration, any industrial action shall not be conducted for fifteen days from the date on which it is referred.

Article 69 (Finality of Arbitration Award, etc.)

(1) When the parties concerned consider that an arbitration award rendered by a Regional Labor Relations Commission or a Special Labor Relations Commission is inconsistent with any Act or subordinate statute or subordinate statute, they may apply for review of the arbitration award to the National Labor Relations Commission within ten days from the date of receipt of the arbitration award.

(2) If the parties concerned consider that an arbitration award rendered by the National Labor Relations Commission or a decision on review made pursuant to the provisions of paragraph (1) is erroneous or unjust, they may institute an administrative litigation within 15 days from the date of receipt of the arbitration award or the decision on review, notwithstanding the provisions of Article 20 of the Administrative Litigation Act.

(3) Where no application for review is filed or administrative litigation is filed within the period referred to in paragraphs (1) and (2), the arbitration award or decision on review shall become final and conclusive.

(4) When an arbitration award or a decision on review has been finalized pursuant to paragraph (3), the parties concerned shall comply therewith.

Article 70 (Effect of Arbitration Award, etc.)

(1) The effect of an arbitration award or decision on review of the Labor Relations Commission shall not be suspended pursuant to an application for review or administrative litigation filed with the National Labor Relations Commission pursuant to Article 69 (1) and (2).

(2) The contents of an arbitration award or decision on review finalized pursuant to Article 69 (3) shall have the same effect as that of a collective agreement.

Article 71 (Scope, etc. of Public Works Projects)

(2) The term "essential public-service businesses" in this Act means the following public-service businesses referred to in paragraph (1) whose suspension or discontinuation may seriously endanger daily life of the general public or the national economy, and whose replacement is not easy:

1. Railroad (including urban railroads) and urban bus transportation business (limited to the Special Metropolitan City and Metropolitan Cities);

Article 74 (Recommendation of Referral to Arbitration)

(1) Where the Special Arbitration Committee deems that mediation is not likely to take place in essential public-service businesses, it may recommend that the Labor Relations Commission concerned refer the case to arbitration by decision.

(2) Recommendation referred to in paragraph (1) shall be made prior to the expiration of the mediation period referred to in Article 54.

Article 75 (Determination of Referring to Arbitration) The chairman of the Labor Relations Commission shall, upon receiving the recommendation as prescribed in Article 74 (1), determine whether to refer the case to arbitration after hearing the opinion of the public interest members.

【Labor Relations Commission Regulations】

Article 48 (Special Mediation)

(6) The Special Coordination Committee shall present a proposal for mediation to essential public business pursuant to the provisions of Article 71 (2) of the Trade Union and Labor Relations Adjustment Act before the expiration of the mediation period pursuant to the provisions of Article 54 of the Trade Union and Labor Relations Adjustment Act: Provided, That the same shall not apply

4. Determination

A. Whether the decision to refer to arbitration in this case is invalid or illegal as it is based on the unconstitutional ex officio arbitration system

(1) Whether the ex officio arbitration system violates the principle of excessive prohibition

In order to not violate the Constitution, the principle of excessive prohibition, which can be said to be the limit of legislative activities of restricting fundamental rights as stipulated in Article 37(2) of the Constitution, should be observed. Accordingly, in order to do so, the legislative purpose should be recognized as justifiable; the method chosen by the legislators should be effective and appropriate to achieve that purpose; the method of using less than the basic rights among effective methods should be used; the public interest to be protected by the legislation and the private interest infringed by the legislation should be compared and balanced to the public interest to be protected by the legislation.

However, its legislative purpose is to maintain the daily life of the public and preserve the national economy by allowing the resolution of disputes through arbitration of the Labor Relations Commission, inasmuch as the conflict between labor and management is not easy due to the extreme separation and conflict between labor and management in essential public-service businesses, and the separation of labor and management can lead to the risk of collapse of the national economy. In addition, the purpose of maintaining the daily life of the public and preserving the national economy can be included in the broad concept of public interest, which is the maintenance of social order and the public welfare. Accordingly, the provision of this case is pursuing the legislative purpose of maintaining the order and public welfare among fundamental rights listed in Article 37(2) of the Constitution.

In addition, if the supply of goods and services essential for the life of the people due to labor disputes in an essential public-service business area voluntarily suspends, serious social confusion may arise, which may cause serious harm to the life and body of the people, and the national economy may be considerably harmed. If it is necessary to maintain public interest and the national economy by preventing such danger situation, doing so ex officio by the Labor Relations Commission may serve as an effective means to promptly and smoothly resolve labor disputes in a reasonable direction. In addition, the emergency adjustment and the compulsory arbitration system, which are separately recognized under the law, are merely a function as an ex post facto remedy, and are not sufficient to ensure the stability of the life and the national economy. Accordingly, adopting the method of resolving labor disputes before reaching the strike would be one of the means necessary and appropriate to pursue legitimate purposes under the Constitution.

In addition, the subject of the discretionary arbitration by the discretionary arbitration system is limited to railroads, water, electricity, gas, oil supply, hospitals, the Bank of Korea, and communications including urban railroads. Under the current labor-management conditions of Korea, recognizing the compulsory arbitration system to promptly and smoothly resolve labor disputes before reaching an industrial action is the minimum necessary measure to maintain and preserve public interests and national economy.

On the other hand, the public interest to be protected by the compulsory arbitration system is not only the legal interest that has the most important personal value, such as life, body, and health of majority citizens, but also the important public interest of maintaining and preserving the national economy as a whole. Such public interest is not easy compared to the private interest of guaranteeing the right to collective action for protecting the rights and interests of workers in the workplace in which the dispute occurred. Accordingly, the balance between the two legal interests is achieved.

Therefore, the above ex officio arbitration system is just in its legislative purpose, and its method of restricting fundamental rights as stipulated under the law is appropriate, and the degree of limitation of fundamental rights is minimized, and the balance between the public interest to be protected and the private interest to be restricted is maintained, so it does not violate the principle of excessive prohibition under the Constitution (see Constitutional Court Decision 2001Hun-Ga31, May 15, 2003).

(2) Whether the ex officio arbitration system violates the principle of equality

The principle of equality stipulated in Article 11(1) of the Constitution refers not to any absolute equality that denies any discriminatory treatment, but to relative equality that does not mean any discrimination without reasonable grounds in legislative and legal application. Accordingly, discrimination or inequality with reasonable grounds is not contrary to the principle of equality.

As seen earlier, the ex officio arbitration system limits workers' right to collective action in the above essential public works, as it causes huge social confusion in the event of temporary suspension of essential public works, such as railroad, water, electricity, gas, petroleum refining, and oil supply, hospital, Bank of Korea, telecommunications, etc., as well as brings about serious harm to the daily lives of the people and may substantially endanger the national economy. For this reason, it is justifiable to discriminate against workers in the essential public works site with ordinary workers.

(3) Therefore, since the ex officio arbitration system violates the Constitution, the plaintiff's assertion that the decision to refer to arbitration of this case is unlawful, and its illegality is serious and clear and invalid is without merit.

B. Whether the decision to refer to arbitration in this case is invalid or illegal since the decision to refer to arbitration in this case violates the provisions of the law or renders the provision de facto dismissal

(1) Whether the failure to present a proposal by the Special Arbitration Commission is illegal

As seen earlier, the special conciliation committee held a conciliation meeting on November 25, 2005 and tried to coordinate the issues between the labor and management in 209 cases through a conciliation meeting on two occasions, but it is possible to find the fact that the conciliation is terminated without presenting a conciliation proposal because it is difficult to present a conciliation proposal due to a significant difference between the labor and management. Since it is an inevitable circumstance that the conciliation proposal was not presented pursuant to Article 48(6) of the Labor Relations Commission Regulations, it cannot be said that the special conciliation committee’s failure to present a conciliation proposal is illegal, and the decision to refer to arbitration based thereon cannot be said to be unlawful.

(2) Whether the decision of conditional referral to arbitration is unlawful

According to Article 74(1) of the Act, the Special Arbitration Committee may determine the recommendation of the referral to arbitration. The recommendation of the referral to arbitration should take into account the purpose of the current law giving priority to the autonomous dispute resolution of the labor and management (see Articles 47 and 52 of the Act). Thus, the authority of the recommendation is interpreted to include the authority of the referral to arbitration under the conditional or adjustment of the time of referral to arbitration if necessary for the autonomous dispute resolution of the labor and management. Therefore, the decision of the referral to arbitration of this case, which was made based on the conditional recommendation of referral to arbitration, cannot be deemed unlawful.

(3) Whether the instant decision to refer to arbitration was not subject to the recommendation decision of the Special Arbitration Commission and the procedures for hearing opinions on other public interest members

Although the decision to refer to arbitration of this case was made three months after the special recommendation decision of the mediation committee and the hearing of opinions of other public interest members, as seen above, the special mediation committee recommended conditional referral of arbitration to the effect that "if the plaintiff fails to comply with the promise and there is a remarkable possibility that the trade union will lead to an industrial action without complying with the promise, it shall recommend to refer the relevant place of business to arbitration," and if the public interest members agree to refrain from industrial action until December 16, 2005 and to negotiate between labor and management, it is reasonable to withhold the decision to refer to arbitration by December 16, 2005, in the sense that the plaintiff did not comply with the above promise, or if the industrial action is concluded until December 16, 2005, it is reasonable to refer the case to arbitration by the mediation committee because it is possible to refer the above conditional recommendation and opinion to arbitration in accordance with the contents of the industrial action to arbitration of this case, it is reasonable to refer the case to arbitration of this case to other public interest members."

(4) On January 31, 2005, the decision to withhold the transfer to arbitration and whether the decision to transfer to arbitration of this case is unlawful

(A) In light of the purport of the current law giving priority to private mediation in the mediation of labor disputes, the decision to refer to arbitration which is caused by the suspension of labor-management's autonomous bargaining shall be deemed to have the limitation to function as an exception and complementary to the resolution of disputes between labor and management. Therefore, in order to achieve the purpose of the law that intends to contribute to the maintenance of industrial peace and the development of the national economy by enhancing autonomy and accountability between labor and management, and preventing and resolving industrial disputes through the establishment of mature labor-management relations, the decision to refer to arbitration shall be made carefully in order to achieve the purpose of the law that aims to contribute to the maintenance of industrial peace and the development of the national economy. Therefore, the decision to refer to arbitration shall be suspended, unless there are special circumstances such as the postponement of such decision is used as a means to substantially restrict industrial actions themselves

(B) Meanwhile, according to the purport of the whole oral argument, the Labor Relations Commission has prepared and implemented the detailed criteria from May 2003 to prevent abuse of ex officio arbitration. If the Labor Relations Commission promises to resolve the dispute through autonomous bargaining or promises to maintain essential business even at the time of industrial action, it shall recommend conditional referral to arbitration by the Special Arbitration Committee. In this case or if it is deemed unnecessary to make a prompt referral to arbitration, the chairman of the Labor Relations Commission shall decide to withhold the referral to arbitration and shall make a decision to refer to arbitration in cases where it is judged that the failure of labor-management or labor-management or labor-management union has significantly impeded the daily life and the national economy.

(C) As seen earlier, on November 25, 2005, the Special Arbitration Committee submitted to the Plaintiff a letter of undertaking to faithfully respond to the negotiations without any strike until December 16, 2005, and submitted a letter of undertaking to recommend conditional referral to arbitration by the Plaintiff as of January 31, 2006, the Defendant first issued a decision to suspend referral to arbitration two times with priority to resolve disputes arising from the labor-management's autonomous bargaining, and the Plaintiff cannot make a promise to refrain referral to arbitration more than January 31, 2006 without any further specific recommendation by the Labor-management-management-management-management-management-management-employee's voluntary bargaining-related committee's recommendation to ensure the maximum negotiation and basic labor rights by the labor-management-management-management-management-related committee's voluntary bargaining-related committee's recommendation-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective bargaining-related collective agreements.

(5) Therefore, the Plaintiff’s assertion that the instant decision to refer to arbitration was unlawful because it violated the provisions of the law or renders de facto punishment, or that it is invalid due to its gross and clear judgment, is without merit.

5. Conclusion

Therefore, all of the plaintiff's main and ancillary claims of this case are dismissed as they are without merit. It is so decided as per Disposition.

Judges Jeong Jong-chul (Presiding Judge)