[부당해고구제재심판정취소][집40(3)특,524;공1993.2.15.(938),625]
The meaning of “regularly employed workers” under Article 37 of the Trade Union Act, which is the basis for calculating whether or not workers subject to collective agreements are half or more for the recognition of the general binding power of collective agreements (=all workers of the same kind who are actually used continuously at the place of business)
In order to apply a collective agreement to a worker who is not subject to the application of a collective agreement under the general binding force stipulated in Article 37 of the Trade Union Act, it is necessary to ensure that one collective agreement shall be applied to one and more workers of the same kind or more of the same workers who are ordinarily employed in one workplace. Here, the term "regular workers of the same kind" means the total number of workers who are the basis for calculating the rate that workers subject to a single collective agreement are more than half of the total workers, and refer to all the workers of the same kind of workers who are actually employed continuously in the workplace without the status or type of workers, whether the period of employment is fixed or not, or not, the name of the labor contract. Thus, even a worker employed with a short-term contract term, if the scope of application of a collective agreement concluded at the workplace is not specified, or if the provisions of the agreement are applied to all kinds of workers, they constitute the same workers of the same kind in the workplace
Article 37 of the Trade Union Act
Plaintiff
The Chairman of the National Labor Relations Commission
Attorney Lee Young-gu, Counsel for the plaintiff-appellant-appellee
Seoul High Court Decision 91Gu28506 delivered on July 31, 1992
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
On the second ground for appeal
According to the reasoning of the lower judgment, the lower court: (a) determined that the Plaintiff’s failure to faithfully perform the duties of correction by the Intervenor 1 (hereinafter referred to as the Intervenor 1) was a disciplinary action against the Intervenor 6, and that it did not interfere with the Plaintiff’s disciplinary action against the Intervenor 1, and that the Plaintiff’s failure to perform such duties would result in frequent conflict with other employees while taking charge of the Plaintiff’s actions to sell good faith; (b) from July 3, 1989, it did not seem that the Plaintiff was going to attend the disciplinary committee and did not faithfully perform such duties; and (c) the Intervenor transferred the Plaintiff’s duty to the Director-General without fixing the Plaintiff on January 1, 199; and (d) the Intervenor continued to engage in such disciplinary action against Nonparty 1, the Plaintiff’s failure to perform the duty of correction by referring Nonparty 2 to the Plaintiff’s disciplinary action against the Intervenor 1, the Plaintiff’s failure to perform the duty of correction; and (d) the Plaintiff’s failure to perform the duty of correction to the Plaintiff 1, including Nonparty 1.
In light of the records, the above fact-finding and decision of the court below are just and acceptable, and there is no error of law in finding facts or finding facts without evidence as pointed out in the process, and according to the facts found by the court below, the decision of the court below that the plaintiff is in in an indefinite suspension from office is proper and there is no error of law as to the abuse of disciplinary power.
Therefore, there is no reason to discuss.
On the first ground for appeal
In order to apply a collective agreement to a worker not covered by the original collective agreement by the general binding force under Article 37 of the Trade Union Act, a single collective agreement is required to be applied to one-half or more workers of the same kind of workplace employed at one workplace or other workplace (hereinafter referred to as a "workplace"). Here, the term "regular workers of the same kind of workplace" means the total number of workers to be the basis for calculating the ratio of the number of workers to which one collective agreement is applied to all workers of the same kind of workplace, who are actually employed continuously and continuously in the workplace without the difference of their status or type (employee, park, commission), the fixed period of employment or the name of the labor contract. Thus, the term "short-term workers" includes the whole workers of the same kind of workplace who are employed with the fixed term of the contract, if the scope of the collective agreement is not specified, or if the agreement provisions are applied to all kinds of occupation, they constitute all workers of the same kind of workplace without the distinction of occupation.
The court below held that the rules of the participant company, excluding the chief class or higher, provide that all the members of the participant company shall join the trade union regardless of class or occupation, and that the plaintiff shall not join the trade union, and that the total number of employees of the participant company is 1906 and that 45% of the members of the participant company actually joined the trade union shall be 708 and that the participant company shall be 45% of the members of the union, and that the participant company shall be employed for one year by classifying the participant's employees as the commissioned members and the entrusted members, and therefore, the court below's determination that the above rules of the collective agreement shall not apply to the participant company's employees of the same kind with the same meaning as those of the intervenor company's trade union. Since the above rules of the participant company shall not apply to the participant company's employees of the same kind as those of the intervenor company's regular employees, it is reasonable that the above rules of the court below shall not apply to the intervenor's employees of the same kind as those of the plaintiff company's regular employees, regardless of the binding force of 1400 members.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.