[2] In a case where there is a change of circumstances that may expect that the resumption of bargaining would be meaningful, such as where collective bargaining was placed in a state of school attendance, but a new compromise proposal is presented from the trade union, whether there is a justifiable ground for employer’s refusal of collective bargaining (negative

[3] The case holding that there is no justifiable ground for an employer’s failure to comply with collective bargaining at a time determined by the trade union

[2] Industrial action has the nature as a means to promote collective bargaining, so the circumstance that it is during the dispute period cannot serve as a justifiable reason to refuse collective bargaining. On the other hand, if collective bargaining is in a situation where collective bargaining is not expected any longer due to the failure of the parties to continue collective bargaining, even if the employer refuses collective bargaining, it shall be deemed that there is a justifiable reason to refuse collective bargaining. However, even in the above case, in a case where there is a change in circumstances that may expect that the resumption of bargaining would be meaningful, such as the presentation of a new compromise proposal from the trade union, if an employer refuses collective bargaining, the employer must comply with the collective bargaining again, and therefore, if the employer refuses collective bargaining notwithstanding such change in circumstances,

[3] The case holding that there is no justifiable ground for the defendant's failure to comply with collective bargaining at a time determined by the labor union, in case where the defendant, an employer, did not seem to have a reasonable ground to seek a change of the collective bargaining date as determined by the labor union, and no opinion was expressed in the labor union prior to the above bargaining date, such as seeking a change of the bargaining date, etc.

Article 81 subparag. 3 of the Trade Union and Labor Relations Adjustment Act provides that an employer may not refuse or neglect the conclusion of a collective agreement and other collective bargaining with the representative of a trade union or a person delegated by a trade union without any justifiable reason. Whether there is any justifiable reason for the employer’s refusal or neglect of collective bargaining with respect to collective bargaining shall be determined based on whether it is difficult for the employer to expect the performance of collective bargaining obligations under social norms by taking into account the negotiating authority of the trade union, the bargaining time and place required by the trade union side, the bargaining place, the bargaining agreement, and its negotiation attitude (see Supreme Court Decision 97Nu8076, May 22, 199

Industrial action has the nature as a means to promote collective bargaining, so the circumstance that it is during the period of dispute cannot serve as a justifiable reason to refuse collective bargaining. On the other hand, if the collective bargaining is in a situation where the progress of bargaining is no longer expected even if the employer refuses collective bargaining even though the parties have continued to negotiate their gender, it shall be deemed that there is a justifiable reason to refuse collective bargaining. However, even in the above case, if there is a change in circumstances that may expect that the resumption of bargaining would be meaningful, such as the presentation of a new compromise plan from the trade union, the employer must comply with the collective bargaining again. Therefore, if the employer refuses collective bargaining notwithstanding such change in circumstances, there is no justifiable reason to refuse collective bargaining

According to the evidence adopted by the court below, it is sufficient to recognize the fact that the defendant, as the representative of the Association, refused the above demand on March 18, 2004 when the National Federation of Public Transport and Social Services (hereinafter referred to as the "Association") entrusted with the right to collective bargaining by the labor union of the Seoul Mapo-gu Association (hereinafter referred to as the "Association") requested the Association to correct collective bargaining on March 12, 2004.

In addition, according to the evidence adopted by the court below, the above trade union entered a strike from February 23, 2004 as a result of the collective bargaining agreement, and the Association enters a lock-out from February 28, 2004. In such a situation, the union's annual delegation of the collective bargaining right by the above trade union requested that the union's annual delegation of the collective bargaining right by the above trade union make a defect in the collective bargaining on March 18, 2004 as of March 12, 2004 shall be deemed to be the demand for bargaining under the circumstances where the possibility of mutual concession is considered by the trade union upon the dispute between the labor and the management, and thus there is a change of circumstances that may expect the resumption of the bargaining. In light of the above legal principles, it cannot be said that the defendant's refusal of the collective bargaining request by March 12, 2004 by the union is justifiable and there is no justifiable reason to refuse the above demand for collective bargaining.

In the same purport, the fact-finding and decision of the court below is just, and there is no error in the misapprehension of facts against the rules of evidence or the misapprehension of legal principles as to the justifiable reasons for the refusal of collective bargaining, as alleged in the grounds of appeal.

2. As to the rejection of the collective bargaining request dated June 2, 2004

In light of the above legal principles and the records, the court below's adopted evidence can sufficiently recognize that the defendant failed to comply with the collective bargaining request of the Federation on June 2, 2004 without any justifiable reason, and the mere fact that the defendant was under the ground of appeal does not appear to have properly requested postponement consultation. Thus, the court below did not err in the misapprehension of facts against the rules of evidence or by misapprehending the legal principles on the justifiable grounds of the refusal of collective bargaining, as alleged in the ground of appeal.

3. As to the rejection of a demand for collective bargaining made on June 14, 2004

According to the records, prior to the Plaintiff’s demand for collective bargaining on June 14, 2004, the Defendant’s non-indicted 1 sent a letter of demand for collective bargaining to the Defendant on June 13, 2004. However, the content of the Defendant’s demand for collective bargaining as a matter of the Defendant’s demand for collective bargaining avoidance, which merely demands the Defendant to conduct collective bargaining in good faith with the Federation, does not change itself as a negotiating entity, and there is no mentioning that the Defendant’s demand for collective bargaining is included in the documents of the Federation’s demand for collective bargaining as a negotiating member. In light of the fact that the Nonindicted Party is included in the documents of collective bargaining by the Federation, it cannot be deemed as unclear whether the negotiating entity is the Federation or the above trade union. Thus, there is no justifiable reason to refuse the Defendant’s demand for collective bargaining on June 14, 2004.

The fact-finding and judgment of the court below to the same purport is just, and there is no error in the misapprehension of facts against the rules of evidence or the misapprehension of legal principles as to the justifiable reasons for the refusal of collective bargaining, as alleged in the grounds of appeal.

4. As to the rejection of a demand for collective bargaining from June 19, 2004

If a procedure or practice agreed upon between labor and management regarding determining the date and time of collective bargaining exists, collective bargaining shall be determined in accordance with such procedure or practice. However, in the absence of such procedure or practice, even if a trade union requests an employer to conduct collective bargaining by specifying any date and time (hereinafter referred to as “date and time of collective bargaining”), the employer may seek an alteration of the date and time of bargaining if there are reasonable grounds, such as the necessity of the employer to review and prepare the matters for bargaining. In such a case, regardless of whether the employer has accepted the employer’s demand for alteration of the date and time of collective bargaining in the trade union, the employer’s refusal of collective bargaining shall be deemed justifiable. However, if the employer fails to comply with collective bargaining in the trade union’s preparation without any justifiable reason but the employer fails to comply with the collective bargaining in the trade union’s lump sum until the date and time of collective bargaining in the trade union’s preparation, it shall not be deemed that the employer has faithfully complied with the collective bargaining in accordance with new bargaining. Thus, there is no justifiable reason for the employer to refuse collective bargaining.

As acknowledged earlier, in light of the fact that the annual association requested the association to conduct collective bargaining three times from March 12, 2004 to June 14, 2004, the Defendant, the representative of the Association, has continuously refused to conduct collective bargaining. As such, at the time when the annual association demanded collective bargaining by setting the date and time on June 19, 2004 again, the Defendant had sufficient time to consider the negotiation items, etc. and prepare it. Thus, the Defendant did not seem to have any reasonable reason to seek the change of the above negotiation date and time. Furthermore, according to the evidence adopted by the lower court, the Defendant cannot be deemed to have expressed any intention on the date and time of collective bargaining, such as seeking the change of the date and time of collective bargaining, etc. on the side of the trade union prior to the date and time of such bargaining. Thus, there is no justifiable reason that the Defendant did not comply with the above date and time determined by the annual association.

The fact-finding and judgment of the court below to the same purport is just, and there is no error in the misapprehension of facts against the rules of evidence or the misapprehension of legal principles as to the justifiable reasons for the refusal of collective bargaining, as alleged in the grounds of appeal.

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)