[파산채권확정][공2003.1.15.(170),187]
[1] In a case where a trade union entered into a collective agreement with an employer to modify the working conditions disadvantageously, whether such agreement is null and void (negative), and whether the trade union needs to obtain individual consent or authorization from the workers for such agreement (negative)
[2] Whether the representative of a trade union is in violation of the purpose of Article 29(1) of the Trade Union and Labor Relations Adjustment Act to require a resolution of the general meeting of union members on whether the draft agreement should be passed again after the representative agreed on the content of collective bargaining with the employer
[3] Whether the employment relationship is continuous in a case where a dissolved company duly dismissed a worker during the course of liquidation and re-employed a part of the worker for the performance of liquidation work, etc. (negative)
[1] A collective agreement is an agreement that is concluded between an employer or an employer organization and a labor-management relationship. Under the principle of the autonomy of the agreement, a trade union may enter into a collective agreement that changes the working conditions in favor of an employer as well as the collective agreement that changes the working conditions unfavorably with an employer. Thus, barring any special circumstance, such agreement cannot be deemed null and void, barring special circumstances where the collective agreement that changes the working conditions disadvantageously may be deemed to go beyond the purpose of a trade union due to a substantial lack of rationality, and a trade union need not obtain individual consent or authorization from an employee for such agreement
[2] The purport of Article 29(1) of the Trade Union and Labor Relations Adjustment Act is to stipulate that the representative or the delegated person of a trade union shall again undergo a resolution at a general meeting of union members on whether the draft agreement is a matter of course after having agreed with the employer on the contents of the collective agreement with the employer according to the collective agreement. It is in violation of the purpose of Article 29(1) of the same
[3] Where a dissolved company has properly dismissed workers in the course of liquidation, employment relations with the company that is an employer shall be terminated once, and even if a company in the course of liquidation has re-employed some of the dismissed workers to perform liquidation duties, etc., barring special circumstances, employment relations shall be newly established from that time, barring special circumstances. Thus, retirement benefits after re-employment shall be calculated by counting from the date of re-employment.
[1] Article 29 of the Labor Union and Labor Relations Adjustment Act / [2] Article 29 (1) of the Labor Union and Labor Relations Adjustment Act / [3] Article 34
[1] Supreme Court en banc Decision 99Da67536 delivered on September 29, 200 (Gong200Ha, 2195) and Supreme Court Decision 99Da67536 delivered on September 29, 200 (Gong2000Ha, 2195), Supreme Court Decision 2001Da41384 delivered on April 12, 2002 (Gong202Sang, 1104) / [2] Supreme Court Decision 91Nu1257 delivered on April 27, 1993 (Gong193Ha, 1579) and Supreme Court Decision 9Da67536 delivered on September 29, 200 (Gong200Ha, 202Sang, 1104) / [2] Supreme Court en banc Decision 91Nu6789 delivered on May 11, 1993 (Gong193Ha, 1579)
Plaintiff 1 and 45 others (Attorney Lee Young-young, Counsel for the plaintiff-appellant)
The bankruptcy trustee of the bankrupt Korea Industrial Securities Corporation (Attorney Kim Jong-young, Counsel for defendant-appellant)
Seoul High Court Decision 2000Na51416 decided May 9, 2001
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
1. A collective agreement is an agreement that is concluded between an employer or an employer organization and a labor-management relationship. Under the principle of the autonomy of the agreement, a trade union may enter into a collective agreement that changes unfavorable working conditions as well as the collective agreement that changes unfavorable terms and conditions between an employer and an employer in favor of the employer. Barring special circumstances, such agreement cannot be deemed null and void, barring special circumstances where the collective agreement that changes working conditions disadvantageously may be deemed to go beyond the purpose of a trade union due to a significant lack of rationality, and a trade union does not need to obtain individual consent or authorization from an employee for such agreement (see, e.g., Supreme Court Decisions 9Da7572, Nov. 23, 199; 9Da67536, Sept. 29, 200).
According to the evidence of the court below, the company was established with full investment in the Korea Development Bank on April 25, 191. The company was established with 197 business group for the 197 year following the 197th anniversary of the above findings of its existence. Since then 1995, the company ordered the bankrupt company to prepare measures for improving its management such as cumulative retirement allowances due to the crisis of the domestic financial market and the decline of large enterprises. Accordingly, the company was committed to provide additional assistance to the bankrupt company for the early settlement of the company's business. The company was not subject to 9% increase of remuneration for the 197 year after the 197th anniversary of the above findings of its existence. The company was not subject to 9% increase of remuneration for the 9th anniversary of the above findings of its existence. The company ordered that the above company be able to provide new remuneration within the 197th anniversary of the total number of its employees for the 19th anniversary of its total number of capital increase. The company was subject to 9% increase of remuneration plan for its operation.
2. The fact that the representative or the delegated person of a trade union has agreed on the contents of a collective agreement with an employer based on the collective bargaining and again requires a resolution at a general meeting of partners on whether the draft agreement is a matter of fact by completely and comprehensively restricting the power of the representative to conclude the collective agreement. Thus, it is in violation of the purport of Article 29(1) of the Trade Union and Labor Relations Adjustment Act (see, e.g., Supreme Court en banc Decision 91Nu1257, Apr. 27, 1993; Supreme Court Decision 91Nu10787, May 11, 1993; 2001Da7970, Jun. 28, 2002).
The court below rejected the plaintiffs' assertion that the above collective agreement constitutes a violation of the principle of good faith or an abuse of authority, while deciding that the labor union's collective agreement cannot be deemed null and void even if it did not go through a resolution or approval of the general assembly or representative assembly of the trade union, after agreement was reached with the bankrupt company as a result of collective bargaining with the chairperson of the trade union, and that the collective agreement constitutes a violation of the principle of good faith or an abuse of authority. In light of the records and the above legal principles, it is just and acceptable, and there
3. The court below rejected the above assertion on the ground that the bankruptcy company's resolution for dissolution by holding a temporary general meeting of shareholders on July 25, 1998 that "it shall be paid at the level of five retired banks on June 29, 1998, taking into account all the circumstances of the payment standards for retirement consolation benefits to employees dismissed due to the resolution for dissolution," and that "the bankruptcy company shall pay retirement consolation benefits at the same level as the payment conditions for retirement banks expected to be paid in the future between the bankruptcy company and the chairperson of the Trade Union and Labor union" was agreed that "the bankruptcy company shall pay retirement consolation benefits to the same level as the payment conditions for retirement banks anticipated to be paid in the future." Thus, in light of the facts and the contents of the above text of the ruling as to the plaintiffs' assertion that the bankruptcy company is liable to refund wages to the plaintiffs, it is just to pay them as dismissal allowances by referring to the case of the withdrawing bank in determining the payment standards for retirement consolation benefits, and it did not
In light of the records, the judgment of the court below is just, and it is clear that the above judgment of the court below contains the purport of rejecting the plaintiffs' assertion on the agreement between the labor and management on July 25, 1998. Thus, there is no error in the incomplete deliberation or omission of judgment, and the decision of the court below's rejection of the plaintiffs' assertion that the wages before the reduction should be the basis in calculating the dismissal allowance to be paid to the plaintiffs. Thus, the argument in the grounds of appeal on this point is not acceptable.
4. Where a company dissolved for the discontinuation of business has properly dismissed workers in the course of liquidation, employment relations with the company that is the employer shall be terminated once, and even if a company in the course of liquidation re-employed some of the dismissed workers for the purpose of carrying out liquidation duties, barring special circumstances, labor relations shall be newly established from that time, barring special circumstances. Thus, retirement allowances after re-employment shall be calculated by counting from the date of re-employment (see Supreme Court Decision 94Da52768 delivered on October 12, 195, etc.).
According to the evidence employed by the court below, the bankruptcy company decided to dissolve the bankruptcy company on July 25, 1998 and suspended all business from July 27, 1998 to carry out the business necessary for protecting investors and the liquidation procedure. Accordingly, the bankruptcy company notified all 395 employees currently in office as of July 27, 1998 of the termination of the employment relationship, and notified the pre-paid 10 employees of the pre-paid 10 to perform the liquidation procedure, and the employees so notified are still in office and continue to perform the liquidation procedure of the company after the lapse of time, and the liquidation procedure of the company was partially dismissed each month from the bankruptcy company each time after the reduction of the liquidation procedure. Upon the declaration of bankruptcy on March 13, 199, all of the remaining employees were treated by the bankruptcy low company, and the plaintiffs received retirement allowance from the retirement company as of July 27, 1998 and the court below did not err in the misapprehension of legal principles as alleged in the grounds of appeal and the judgment below.
5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Seo-sung (Presiding Justice)