(영문) 광주지방법원 2016.11.17. 선고 2016구합10640 판결

A. On July 14, 2015, the Plaintiff is a regional trade union with which the report on the establishment of a trade union was completed at the High Military Office on July 14, 2015, and the non-party B trade union (hereinafter referred to as “B trade union”) is a regional trade union consisting of 38 workers who are engaged in the supply business of cargo loading and unloading in C after obtaining the first permission for labor supply business on May 1, 1982 (the latest permission period from May 30, 2013 to May 30, 2016).

B. On July 22, 2015, the Plaintiff filed a new application for a labor supply business (hereinafter referred to as “instant application”) with the Defendant on July 2, 2015, under Article 33(4) of the Employment Security Act, on the ground that the “business trade union, 12 workers, 12 workers annually, 12 employees per month in the labor supply plan, and 144 employees per annum in order to operate the same business area, and hereinafter referred to as “the instant application”). However, on September 1, 2015, the Defendant was scheduled to complete the construction in 2020, that the instant application is not significantly affected by the change in water capacity for the next five years, and on the sole basis of the manpower of the existing trade union, it is difficult to maintain the working conditions and the stability of the employment relationship of the existing union members beyond the demand for the supply of the manpower. Accordingly, the instant application for the instant disposition was rejected on the ground that the scope of business overlap due to the performance of the same business within the same area of the existing trade union.”

C. On October 21, 2015, the Defendant dissatisfied with the above disposition filed an administrative appeal with the Central Administrative Appeals Commission. On February 2, 2016, the Central Administrative Appeals Commission (the Central Administrative Appeals Commission) made an administrative appeal against the said disposition. ① The Plaintiff’s scope of work overlaps with the scope of work of the existing port unions, the number of workers supplied increases by 12 persons compared with the previous permit. This exceeds approximately 32% of the number of members of the existing port unions, 38, the number of members of the existing port unions, and C/L2 construction works (hereinafter “construction works of this case”) are scheduled to complete the construction of 200, and the water volume has not increased by the time of completion. ③ The existing port unions seems to have used the non-members for a limited period of time, but it is difficult to deem that regular workers are required due to the occurrence of idle human resources in the non-water season, ④ It is highly likely that the Plaintiff’s request for new cargo supply in the area with which the Plaintiff submitted to Samsung Shipping and its employees would be likely to conflict with the existing labor union.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the following reasons, the instant disposition is erroneous in the misapprehension of discretionary authority by failing to have the grounds for the disposition, or by excessively restricting the Plaintiff’s private interest than the public interest the Defendant intends to protect.

1) The number of members of the existing BEU is 37 to 38. The water dynamics of C have increased every year from 2012 to 2015. In particular, since the annual transport volume of Samsung Shipping, which is the shipping company, on the D- Jeju Section, has increased every year, the existing members are at work every day and are placed in loading and unloading work, but even from November of the 190s to June of the following year, the number of members of the existing BEU is employed by 22 non-members, who are employed by the members of the 10th to 28th of each month.

Nevertheless, the actual monthly wage that the members of the 2013 union receive each month as wages, retirement allowances, and dividends is higher than the average monthly wage of workers in the 2014, approximately 5.5 million won in 2014, and about 6.2.6 million won in 2015, and the average monthly wage of workers in the 2015. Thus, even if the Plaintiff obtained additional permission (hereinafter referred to as "the instant permission") with 12 members, it is unlikely that the conditions of wages of the members of the 20 union will worsen or unstable employment relations will be worse, even if the instant application is filed within three years, the term of validity of the permission is too excessive in the number of workers supplied, and thus, there is no concern that the employment relationship of workers will be unstable.

2) ① On August 23, 2016, the Plaintiff prepared a three-party understanding angle with the Mapo Shipping Co., Ltd. (hereinafter “Mama Shipping”) and the Joint Shipping Logistics Advancement Branch (hereinafter “Joint Shipping Logistics”) on August 23, 2016, and secured a water operated separately from the water operated by the existing union; ② Samsung Shipping replaced its existing 2,500 tons with 3,00 tons with 3,50 tons with the cargo vessels instead of the existing 2,00 tons with the consideration of the increase in water operated by Samsung Shipping on November 17, 2014; ③ Even if the manpower were additionally supplied with the permission in this case, from the previous 2,00 tons with 3,50 tons with 3,00 tons with 3,00 tons with 3,00 tons with 20,000 tons with 30,000 tons or more as the successful bidder of the previous 20,000 tons with 3,010 tons or more of the cargo.

3) In addition to the expansion of demand for human resources due to the above increase in the quantity of water, the permission of the instant case would rather rectify the harm caused by the system of exclusive and exclusive supply of workers under the previous union, such as the employment of workers of non-members, embezzlement of public funds, offering of bribe, etc., thereby preventing the infringement of workers’ rights and interests and contributing to the creation of employment through sound competition.

4) According to Article 33(1) of the Employment Security Act, the term of validity of a labor supply business license may be three years and may not be extended after the expiration of the three-year period. Thus, even if the instant permission is granted, it may be controlled by providing appropriate administrative guidance, such as the Plaintiff’s permission for extension of the permission period, taking into account the Plaintiff’s status of the supply and demand of human resources and the maintenance of stability in employment relations. Thus, it cannot be deemed that the granting of multiple labor supply

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) Workers belonging to each port across the country are engaged in loading and unloading work. Since a trade union that has obtained permission for a labor supply business under the Employment Security Act only one for each harbor, the licensed trade union operated the supply business of exclusive loading and unloading workers. Bnobation is running the supply business of exclusive loading and unloading workers after obtaining permission for a labor supply business on May 1, 1982, and C is undergoing the supply business of exclusive cargo loading and unloading workers.

2) On June 30, 2015, the Plaintiff held a general meeting of 12 members, and received a certificate of report on the establishment of a trade union from the head of Gwanak-gu Gun on July 13, 2015, with the name of the trade union, a trade union, a form of trade union, a unit labor union (area), a location of the principal office, and a representative F;

On July 22, 2015, the Defendant filed the instant application with 12 persons per annum, 144 persons per annum, and Daranam-do, Jeonnam-do.

3) At the time of the filing of the instant application, the Plaintiff attached the Plaintiff’s domestic workers supply business plan and Samsung Shipping Co., Ltd. (hereinafter “Ssung Shipping”) with the joint shipping logistics (hereinafter “Joint Shipping Logistics”) that is the loading and unloading company, and the business agreement entered into between the joint shipping logistics and the Plaintiff. Among them, the annual status of transportation attached to the Plaintiff’s domestic workers supply business plan is as follows.

A person shall be appointed.

4) C is a coastal port subject to management by local governments (Seoul) and 9,944; 501m (2,000 tons of cargo ships) and major cargo is tight, cryd, and crypted, etc.; 2 shipping companies are Samsung Shipping (60% of the volume of cargo treated) and green sea (40% of the volume of cargo treated); and 30% of the total volume of cargo handled; 40% of the total volume of cargo handled; 501m (2,000 tons of cargo ships); and 40% of the total volume of cargo disposed of; and 501m, 20, 200, and 30.

5) From May 2012 to July 2015, C’s volume of water is as follows:

A person shall be appointed.

6) A plan for promoting the instant construction project submitted by Jeonnam-do Governor to the Defendant on August 4, 2015 is as listed below:

0. Current status of service performance: The details of the business from September 3, 2014 to December 31, 2015: Two wharfs (general 110m, sand 130mm, sand 130mm) and dredging soil dumping (120,000mm2): the duration of the project: March 20, 2016; see the mid- and long-term outlook of water operated (third basic harbor plan: 5m2,00m2);

7) On August 20, 2015, B unions submitted the status of workers supply as follows to the Defendant on August 20, 2015. At present, however, although members did not have any problem with unloading and cargo (load) operation, in the event of increasing a large amount of load, B unions submitted data to the Defendant, in cooperation with the employees directly employed by the loading and unloading company in the event of a large amount of load increase, it did not comply with the relevant laws and regulations, and submitted data to the effect that B unions would perform loading and unloading operation in cooperation with the employees directly employed by the loading and unloading company.

0. Representative of the current status of a trade union: G (the number of port loading and unloading partners who were changed from H to H to G on August 31, 2015 due to the permission for labor supply business was changed to I on August 31, 2015): The number of port loading and unloading partners: The same (the annual status of two members): The status of loading and unloading contracts for each of the ships and unloading companies (loading and unloading companies, etc.) located in the area of the same (the annual status of two members): the status of loading and unloading contracts for each of the ships and unloading companies, Green Shipping Co., Ltd. and for the CJ Korea Coast and labor supply contracts for the work of loading and unloading companies

0. Special characteristics of the current status of the supply of workers by month (by adjustment, etc.)

8) From October 2013 to June 2014, B labor union employed about 20 non-members each month and puts them into the loading and unloading work for about 10 days to 26 days each month. The Defendant confirmed it at the time of guidance and inspection on November 11, 2014, and issued a warning to B union members on January 12, 2015 in accordance with attached Table 2 of the Enforcement Rule of the Employment Security Act, and B union members, on February 11, 2015, completed the work of non-members as of February 3, 2015, submitted corrective measures data, such as the work book of non-members, revenue and expenditure, etc.

9) On August 3, 2015, 100 members and 100 family members of the B labor union were expressed in favor of the Defendant’s office, before the Defendant’s office, the mother marine transportation company was threatened with the right to survive by promoting the establishment of multiple labor union, and the establishment of multiple labor union was opposed to the establishment of multiple labor union, and a list of opposing signatures signed by 5,000 local residents was submitted to the Defendant.

10) On August 24, 2015, the Plaintiff submitted to the Defendant a union member composition, wage payment plan, and work plan as follows.

0 The plaintiff filed an application for the supply of labor with 12 members, but it is impossible to work with 12 members.

Since agricultural products produced in Jeju are mainly dynamics, approximately 30 workers are required according to seasons, and 0D to be composed of three groups per day in non-water seasons to increase the general cargo operating volume and construction materials gradually, the number of members will gradually increase the water operating volume when improving the port operation.

11) The average monthly ordinary wage of nationwide port workers and the actual wage paid to members of B labor union are as listed below:

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap's statements as to Gap's 1 through 5, 7, 9, 10, 12 through 15, Eul's statements as to Gap's 1 through 6, 8 through 12, 18 through 22, and the purport of the whole pleadings

D. Determination as to the legitimacy of the instant disposition

1) Nature of the instant disposition

Article 33 of the Employment Security Act prohibits a labor supply business without permission; when the head of an employment security office permits a domestic labor supply business, he/she shall decide whether to grant permission by comprehensively taking into account the scope of the labor union’s business, the status of the supply and demand of human resources by region and occupation, the maintenance of stability of employment relationship, etc.

2) Determination as to the existence of grounds for disposition and deviation and abuse of discretionary power

In full view of the following circumstances acknowledged in light of the aforementioned facts and the purport of each of the above evidence as stated in the evidence Nos. 14 through 22 and the entire arguments, if the application of this case is permitted, the supply is excessive compared to the demand for loading and unloading at C, the employer’s employment relationship is unstable due to excessive competition, or the market order is disturbed. Therefore, the necessity and suitability of the disposition of this case exists, and the need for the disposition of this case is recognized, and the balance between the interests and disadvantages arising from the disposition of this case is lost, and therefore, it cannot be deemed that there was an error of deviation or abuse of discretionary power.

A) Although C’s volume of cargo handling was significantly increased from 112,779 tons to 349,118 tons in the second half of 2012 (from May to December) in the second half of 2012, from 364,80 tons to 349,118 tons in the second half of 2013, it seems that there was only 4.3% increase compared to that of the preceding year in the last half of 2014, and even during the first half of 2015 (1 to 7th of 208,849 tons in the first half of 2015, during the period during which five to 10 months were not reflected in the statistics above, it did not have been significantly increased compared to the preceding year.

In addition, in the long term, unlike the plaintiff's assertion, C's mid- and long-term cargo demand and presumption volume under the third basic harbor plan has increased by about 9% from 1,591,00 tons to 1,736,00 tons in 209 to 1,736,00 tons in 209, and thereafter, it seems that the small amount has increased to 1,907,00 tons in 2025 to 1,907,000 tons in 2025, and 1,934,000 tons in 200 tons in 2030 to 1,934,00 tons in 200 tons in 20. (B) The construction of this case, which the plaintiff used as one of the main causes of the increase in water capacity, should be completed on December 2, 2020 after about 5 years after the completion of the construction project.

C) As alleged by the Plaintiff, there exists an abstract increase in water capacity by each shipping company. However, in light of the following circumstances, it is difficult to readily conclude that it will lead to an increase in water capacity immediately in the future.

(1) There is no objective and specific basis for calculation that the expected volume of water attached to the evidence No. 13 (an understanding angle between the plaintiff and the Mapo Shipping) cited by the plaintiff as the ground that the plaintiff secured a new water quantity separately is merely an estimated quantity and that such water quantity actually occurs.

(2) It is difficult to readily conclude that, as alleged by the Plaintiff, the Mama Shipping is a corporation substantially identical to the Mama high-speed logistics, which has previously transported logistics through Samsung Shipping, even if the Mama Shipping purchases and directly transports its own vessels, it is highly likely that the Mama Shipping has transferred the existing water dynamics handled in the Mama high-speed logistics, so it would have sufficiently secured a separate new water dynamics

(3) Comprehensively taking account of the statements in Gap evidence Nos. 12, 13, and 15-1 through 17 submitted by the plaintiff, Samsung Shipping may establish the fact that it replaced the existing 2,500 tons of cargo with the 3,500 tons of cargo ships on Nov. 17, 2014; it newly purchased the ship according to the successful bid for Hanjin Shipping's 3,500 tons of cargo; because of the increase in tonnage of ships entering the 17 intermediate merchants located in Jeju Special Metropolitan City and the increase in loading capacity of ships, it is difficult for the plaintiff to recognize that the existing 35 tons of cargo ships were to increase without entering the existing 35 tons of cargo to the extent that it is difficult to recognize that the existing 35 tons of cargo ships were not to increase due to the increase in loading capacity of ships entering the Jeju Special Metropolitan City.

D) During the period from October 2013 to June 2014, when the introduction of agricultural products, such as Jeju-do smuggling, into Jeju-do, there were 20 non-members of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member of the non-member.

E) The number of the Plaintiff’s union members is about 32% of the number of union members of the existing BEU who work in C with 12 members, and the number of union members of the Plaintiff thereafter is about 30 (the Plaintiff, while applying for the instant permission to supply 12 workers to the port loading and unloading business in C, expressed a plan to increase the number of union members up to 30 if the application is permitted). This results in about 79% of the union members and operation of two union members of the same scale in fact at the same time. It is likely to cause problems such as placement of workers due to the simultaneous work in two port unions, securing of quantity, distribution, etc.

F) The Plaintiff asserts that the actual monthly wage, which the members of the 2013-2015 received from 2013-2015 under the pretext of salary, retirement allowance, dividends, etc., is higher than the average monthly wage of nationwide harbor workers, and that the number of members of the Plaintiff’s association increases constantly, the existing working conditions do not decline even if 12 members of the 2nd association were added. However, although the wages of the NANN

As such, even if the permission of this case was granted solely on the ground that the average wage of the union members was lower than that of the nationwide port workers, it cannot be readily concluded that the existing union members would not lower the working conditions. ② Direct comparison of the actual monthly wage of union members including retirement allowances, dividends, etc. with the average monthly wage of nationwide port workers is inappropriate based on the calculation criteria. ③ The average monthly wage of the union members in 2014 was KRW 5,503,205, and the average monthly wage of the union members in 2014 was KRW 5,503,200, and the aggregate of the actual monthly wage of the union members in 2014 exceeded KRW 209,121,790 (= KRW 5,503,205) and the average monthly wage of the union members in 209,208,208,284, 360, 486, 206, 208, 306, 486, 2016, 386, 4, 268, 2, etc.

G) At the time of the application of this case, the business territory of the Plaintiff entered into in the instant case is overlap with the business territory of the previous BEU, and the Plaintiff submitted an application of this case to the Plaintiff and Samsung Shipping, the largest shipping company ordering 60% of the loading and unloading work capacity on the cargo of the Plaintiff and C, which is the Samsung Shipping, for which the Plaintiff ordered 60% of the loading and unloading work on the cargo of the Plaintiff. The loading and unloading work is difficult to readily conclude the demand for new loading and unloading manpower differently as seen earlier, under the circumstances where it is difficult to conclude that the demand for new loading and unloading is generated, the supply exceeds the demand for human resources, and it is likely to undermine the employment stability of the members of the previous BEU, and there is a possibility that the market order may be disturbed or physical collision to secure the work capacity.

H) According to Articles 36 and 38 of the Employment Security Act, the Defendant continuously controlled the act of violation and properly punished pursuant to relevant statutes after providing guidance and inspection on the B labor supply business within the existing jurisdiction pursuant to the provision of Article 36 and Article 38 of the Employment Security Act. However, it is difficult to deem that the instant permission was necessary to prevent harm caused by the right to monopoly of human resources in the existing labor union or to prevent such harm solely on the ground that B labor union temporarily employed non-members in violation of the Employment Security Act or B labor union representatives committed a tort.

I) For the foregoing reasons, more than 5,00 residents in the neighboring areas C oppose the permission of this case against the Plaintiff (the Defendant’s evidence No. 12 pertaining thereto is merely a document submitted by the existing union that has economic interests with the disposition of this case and economic interests, and it cannot be viewed as an opinion of all residents, and there is no evidence to acknowledge the Plaintiff’s assertion, contrary to the right to monopoly of the existing union.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.