2012Nu1816 Revocation of corrective orders in a collective agreement

National Public Transport and Social Services Trade Union

Head of Daegu Regional Employment and Labor Agency

Daegu District Court Decision 2012Guhap470 Decided July 13, 2012

July 11, 2014

October 24, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The corrective order issued by the Defendant regarding the collective agreement concluded between the Plaintiff and the Gyeonggi-do University Hospital on December 21, 201 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance, except for the addition of "No. 2" to the ground for recognition of No. 3 of the judgment of the court of first instance No. 16. Thus, this part of the judgment is cited by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 24(2) of the Trade Union and Labor Relations Adjustment Act that prohibits a full-time officer of a trade union (hereinafter referred to as a "full-time officer of a trade union") from paying wages, Article 24(4) of the Trade Union and Labor Relations Adjustment Act, and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act that stipulates the act of paying wages to a full-time officer of a trade union as an unfair labor practice (hereinafter referred to as the "full-time officer of a trade union") is invalid because it is unconstitutional for the following reasons.

① Considering the fact that the payment of wages to full-time union workers and exemption of working hours for trade union activities is a part to be freely decided in accordance with the principle of labor-management autonomy, the provision of the Trade Union Act in this case infringes on the essential contents of the three labor rights guaranteed by Article 33 of the Constitution and the principle of labor-management autonomy derived from Articles 10 and 37(1) of the Constitution, and also violates the principle of excessive prohibition under Article 37(2) of the Constitution.

② The Trade Union and Labor Relations Adjustment Articles of this case violate the principle of respect for international legal order under Article 6 of the Constitution, contrary to the contents that “the appropriate convenience should be provided from the enterprise so that the representative of workers of the International Labor Organization (ILO) can perform his duties in a prompt and efficient manner” and “the Commission on Freedom of Labor under the International Labor Organization”.

③ Although a full-time employee has the right to receive remuneration for the provision of labor, which is an agent for the employer’s labor management, the right to work guaranteed by Article 32 of the Constitution and the freedom of choice of occupation under Article 15 of the Constitution are also violated by failing to pay reasonable remuneration for labor under the provisions of the Trade Union and Labor Relations Adjustment Act.

4) Since a full-time employee is prohibited from receiving any benefits from an employer when compared with the time-off worker, it constitutes an unreasonable discrimination and thus violates the principle of equality under Article 11 of the Constitution.

2) Even if the provisions of the Trade Union and Labor Relations Adjustment Act are not unconstitutional, the provisions of the Trade Union and Labor Relations Adjustment Act should be deemed to be discretionary and fuciative provisions, so even if the instant provisions violate the provisions of the Trade Union and Labor Relations Adjustment Act, they still remain valid. Nevertheless, the instant dispositions based on the premise that the provisions of the Trade Union and Labor Relations Adjustment Act are mandatory provisions are unlawful.

3) Article 24 of the Trade Union and Labor Relations Adjustment Act is basically a provision that applies only to a full-time employee of the Trade Union and Labor Relations Adjustment Act. In light of the fact that Article 24(4) of the Trade Union and Labor Relations Adjustment Act states that "Notwithstanding Article 24(2) of the Trade Union and Labor Relations Adjustment Act," "worker" referred to in Article 24(4) of the Trade Union and Labor Relations Adjustment Act means only a full-time employee of the Trade Union and Labor Relations Adjustment Act. Therefore, in cases of payment of wages to a worker who is not a full-time employee of the Trade Union and Labor Relations Adjustment Act, Article 24(2) and (4) of the Trade Union

B. Relevant legislation

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) Details and meaning of the Trade Union and Labor Relations Adjustment Provisions

A) Article 24 (1) of the Trade Union and Labor Relations Adjustment Act provides that "an employee may engage exclusively in the affairs of a trade union without providing labor prescribed by a labor contract if a collective agreement is prescribed or the employer agrees to do so." Paragraph (2) of the same Article provides that "No employee shall receive any benefit from the employer during the previous period," which prohibits the payment of wages to the full-time employee, and stipulates that an act in violation of subparagraph 4 of Article 81 of the Trade Union and Labor Relations Adjustment Act is defined as an unfair labor act, as long as the duty to provide labor to the full-time employee is exempted under the general principle of bilateral contract, it is a provision that the employer's duty to pay wages should extinguish so long as it is exempt from the obligation to provide labor to the full-time employee, and at the same time, it is effective to ensure the independence and legitimacy of the union from the perspective of the employer's control to guarantee the autonomy and legitimacy of the union and to eradicate the wrong labor-management practices.

B) Notwithstanding the provisions of Article 24(2) of the Act on the Introduction and Labor Relations Adjustment of Work Hours, where a collective agreement is prescribed or the employer consents, an employee may conduct management and operation of a trade union for the development of sound labor-management relations with the employer, such as negotiations, settlement of grievances, and industrial safety activities with the employer without any loss of wages, and the maintenance and operation of a trade union for the development of sound labor-management relations, by stipulating that the employee may pay wages to full-time officers, while prohibiting the payment of wages to full-time officers, if there is a consultation with the employer for the actual guarantee of labor union activities by three labor rights and by a small-scale workplace, it is possible to pay wages to labor union affairs within the scope of "working hours within a certain limit determined by the Working Hours Exemption Deliberation Committee, taking into account the number of union members, etc.

The above provision provides that "working hours within a certain limit stipulated by the labor-management agreement shall be paid for the affairs of a trade union during working hours by allowing them to work as a trade union without loss of wages, and it shall be subject to autonomy in the agreement on whether to pay for the affairs of a trade union during working hours. However, by allowing the maximum working hours to be legally determined by the Labor Relations Commission, which consists of the recommendation members of the labor relations and management circles, and public interest members, it shall be deemed to set the limits of autonomy in the agreement on whether to pay for the affairs of a trade union during working hours." Accordingly, the proviso of Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act provides that "the employer permits an employee

2) Whether the provisions of the Trade Union and Labor Relations Adjustment Act are unconstitutional

A) Whether the Constitution infringes on the three basic rights of labor, labor-management autonomy, etc.

(1) The legislative purpose of the Trade Union Act is to contribute to securing the independence and independence of the trade union by having the trade union bear, in principle, the expenses for workers in charge of affairs of the trade union without providing labor to the employer, while to establish a reasonable and stable labor-management relationship by continuously protecting and supporting the trade union activities in the workplace to a certain level, and to enhance the efficiency of its management, and to contribute to the maintenance of industrial peace by preventing and resolving disputes in advance between the labor and management through such legislative measures. In addition, the legislative purpose of the Trade Union Act is justifiable inasmuch as the legislative purpose of the Trade Union Act is to contribute to the maintenance of industrial peace by preventing the disputes in relation to the labor and management in advance through such legislative measures. In addition, to achieve such legislative purpose, it is entirely prohibited, in principle, from entirely entrusting the resolution of the relevant issues to the labor-management autonomy, and from receiving wages from the employer, while guaranteeing the workers

(2) Although the provisions of the Trade Union Act prohibit the receipt of wages from a worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker on the part of the worker

(3) Meanwhile, Article 24(4) and (5) of the Trade Union and Labor Relations Adjustment Act recognizes exemption from working hours only to the extent that does not exceed the limit of exemption from working hours established in advance, and prohibits industrial actions for the purpose of achieving the demand. As to which scope of exemption from working hours should be freely decided by the labor and management, it would be desirable for the labor and management to guarantee the minimum amount of exemption from working hours and to leave such excess to the autonomy of the labor and management. However, unlike European countries where the practice of recognizing exemption from working hours is reasonably established by the labor and management consultation between the labor and management in the case of the employees within a company, it is difficult to set the minimum scope of exemption from working hours to the extent that it would result in infringement of the law of labor and management, without considering the historical background and limit of exemption from working hours, which would result in infringement of the law of labor and management, as well as in cases of the employees within a company in Korea, at least the extent of exemption from working hours after the introduction of the law to correct the long-term practice of labor and management.

(4) The provisions of the Trade Union Act merely stipulate that the exercise of collective bargaining rights and collective action rights is limited to the paid treatment for the activities of a trade union exceeding the limit of exemption from wages and working hours for full-time union workers. At the same time, the current unreasonable practices surrounding the payment of wages for full-time union workers are corrected, and at the same time, the public interest, such as securing the autonomy of union unions, maintaining stable labor-management relations, and maintaining industrial peace, which can be achieved by continuously guaranteeing the activities of a trade union within the limit of exemption from working hours, is considerably serious, and thus maintaining a balance

(5) Therefore, the provisions of the Trade Union and Labor Relations Adjustment Act cannot be deemed as infringing on the principle of labor-management autonomy or the right to collective bargaining and the right to collective action in violation of the over-breadth doctrine. Furthermore, the provisions of the Trade Union and Labor Relations Adjustment Act do not directly restrict the right to organize, which is the right to form a trade union or not to join a trade union, directly. Therefore, the right to organize cannot be deemed as

B) Whether Article 6(1) of the Constitution violates the principle of respect for international law

(1) The basic ideology of our Constitution is to contribute to the permanent world peace and human co-prosperity by complying with treaties concluded and promulgated by the Constitution and generally accepted international laws as well as domestic laws in good faith (Article 6(1) of the Constitution). As such, efforts should be made to contribute to the purpose of international law as long as it can be respected with the spirit of international cooperation (Article 6(1)).

(2) First, the Convention on the Protection and Convenience provided to the Representative of Workers by Enterprises No. 135 of the Labour Convention was adopted in 1971 by the Labour Organization, and entered into force on December 27, 2002, Korea has the obligation to comply with it as in domestic law.

On the other hand, Article 2 (1) of the above Convention provides that "no disadvantageous measure shall be taken against the representative of workers on the ground of his position or activity, and the appropriate convenience shall be provided from the enterprise so that the representative of workers can perform his duties promptly and efficiently." However, Article 2 (2) of the above Convention provides that "in case of a domestic labor-management relationship system, the characteristics of the domestic labor-management relations system, or the necessary size and ability of the enterprise concerned should be taken into account," and Article 2 (3) of the above Convention provides that "the provision of such convenience shall not interfere with the efficient operation of the enterprise." Thus, the provision of the Trade Union and Labor Relations Act of this case is not inconsistent with the above Convention as long as the exemption of working hours was introduced as a countermeasure against the prohibition of the payment of wages to the full-time union workers. Furthermore, even if Article 10 of the "Recommendation on the Protection and Convenience provided to the representative of workers" as reference for the interpretation of the above Convention, it is difficult to see that the above provision of Article 10 (30) of the above Recommendations.

(3) In addition, the recommendation of the 'Committee on Freedom of Labor' under the International Labor Organization cannot be deemed as having the same effect as domestic law or as generally accepted international laws, and as seen earlier, the provisions of the Trade Union and Labor Relations Adjustment Act prohibit the employer from receiving wages from the employer and, as long as the provisions of the Trade Union and Labor Relations Adjustment Act prohibit the employer from receiving wages from the employer as they do not conflict with the related agreements and recommendations of the Labour Organization, it is difficult to view that the provisions of the Trade Union and Labor Relations Adjustment Act are inconsistent with the recommendations of the 'Committee on Freedom of

(4) Therefore, the Trade Union and Labor Relations Adjustment Provisions do not violate the principle of respect for international law under the Constitution.

C) Whether the right to work and the freedom of occupation are infringed

A full-time union worker is exempt from the duty to provide labor to an employer for a certain period of time with the consent of the collective agreement or employer under the free agreement between labor and management, and is similar to a worker in a state of temporary retirement. If the period of full-time expires, the employer may provide labor and receive wages to the employer in accordance with the basic labor-management relationship with the employer. Thus, the provisions of the Trade Union and Labor Relations Adjustment Act cannot be deemed as limiting the right to work of the full-time union worker. Furthermore, since the full-time union worker itself cannot be deemed as a type of one occupation, it

D) Whether the right to equality is violated

Although the Trade Union and Labor Relations Adjustment Act separates the non-grade union worker system and the paid working hours exemption system, the status of the union worker may be converted to the time-off worker according to the individual labor-management agreement, and the time-off worker may be allowed to be exempted from working hours, etc. In such a case, this may vary depending on how the two systems are operated in each business or workplace, and thus, the infringement of the right to equality cannot be discussed on the premise that the union worker and the time-off worker are strictly divided. Therefore, the provisions of the Trade Union and Labor Relations Adjustment Act in this case cannot be deemed to infringe the right to equality.

E) Therefore, since the Trade Union and Labor Relations Adjustment Provisions do not violate the Constitution, the plaintiff's assertion on this part is without merit.

3) Whether the provisions of the Trade Union and Labor Relations Adjustment Act of this case constitute a discretionary provision

In light of the legislative intent of Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act and Article 24(5) of the Trade Union and Labor Relations Adjustment Act, a trade union shall not conduct an industrial action for the purpose of demanding payment of wages in violation of paragraphs (2) and (4) and accomplishing such demand, and Article 81(4) of the Trade Union and Labor Relations Adjustment Act provides that an act such as providing wages to full-time officer of a trade union shall be allowed to be performed by an employer under Article 24(4) and exceptionally, Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act provide that an employer may allow an employer to conduct an act under Article 24(4) and ensure the implementation of Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act through each of the above provisions, even if it is difficult to view it as a mandatory provision (which is related to good morals and other social order among the above Acts and subordinate statutes) that can not be seen as a discretionary provision.

Therefore, the collective agreement that recognizes paid working hours beyond the scope of exemption from working hours under Article 24(4) of the Trade Union and Labor Relations Adjustment Act is unlawful in violation of Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act. As such, the administrative agency can issue a corrective order after obtaining a resolution of the Labor Relations Commission pursuant to Article 31(3) of the Trade Union and Labor Relations Adjustment Act.

4) Whether the key issues of the instant case violate the Trade Union and Labor Relations Adjustment Provisions

A) The meaning of "worker" under Article 24 (4) of the Trade Union and Labor Relations Adjustment Act

Considering the following circumstances, it is reasonable to consider that the system of exemption from working hours under Article 24 (4) of the Trade Union and Labor Relations Adjustment Act for all workers including the full-time officer, and it is not limited to the full-time officer.

① Under the title of "full-time officer of a trade union", Article 24 of the Trade Union Act stipulates the definition of full-time officer of a trade union, the principle of prohibition of payment of wages, and the guarantee of employment of full-time officer of a trade union to an employer, and Article 24 of the Trade Union Act stipulates that, notwithstanding the principle of prohibition of payment of wages to full-time officer of a trade union and the principle of prohibition of payment of wages to an employer, in certain cases, that is, where a collective agreement is provided or the employer consents to do labor union activities without loss of wages, the Act stipulates that a worker may engage in labor union activities within the limits of the exemption of working hours, and Article 24 of

In light of the above principle, the purpose of introducing the prohibition of paying wages for pre-employed workers, the exemption of working hours, etc., and the structure and form of the above provision, our Trade Union and Labor Relations Adjustment Act prohibits, in principle, the payment of wages to pre-employed workers, but grants wages to workers when they are engaged in their labor union activities within the scope not exceeding the exemption limit of working hours, and such interpretation also accords with the language and text of Article 24 (4) of the Trade Union and Labor Relations Adjustment Act, unlike the pre-employed workers under Article 1, 2, and 3 of the above provision, unlike the pre-employed workers under Article 24 (4).

Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act also provides full-time officers of a trade union with wages or assistance in operating expenses of a trade union: Provided, That it is inevitable for an employer to allow workers to engage in activities under Article 24 (4) during working hours. It is clearly distinguishable between full-time officers and workers. As such, the Trade Union and Labor Relations Adjustment Act is consistently divided into the terms "full-time officer" and "worker" and the terms "worker".

③ Article 24(4) of the Trade Union and Labor Relations Adjustment Act, instead of prohibiting the payment of wages to a full-time employee, provides that a "worker" may process a paid worker's maintenance and management of a trade union within the scope of "fixed working hours" in order to prevent the actual suspension of trade union activities and guarantee the actual guarantee of the three labor rights. Thus, the above provision can be interpreted as a " regardless of the principle of prohibition of payment of wages," and therefore, the above "worker" is not necessarily interpreted as limited only to a "full-time employee."

④ If Article 24(4) of the Trade Union and Labor Relations Adjustment Act applies only to the full-time officer, the full-time officer is exempt from the obligation to provide labor under a labor contract and can only engage in the affairs of a trade union with the consent of the employer, but the full-time officer is not entitled to receive any benefits from the employer. Thus, the concept of the full-time officer cannot be viewed as losing his/her wages. Article 24(4) of the Trade Union and Labor Relations Adjustment Act provides that the full-time officer may maintain and manage the trade union without the loss of wages, which does not fit the concept of his/her predecessor. On the other hand, if the worker fails to perform his/her duty to provide labor under a labor contract during his/her labor union work, the full-time officer cannot receive wages from the employer. In light of the principle that the part of the Labor Union and Labor Relations Adjustment Act, regardless of whether he/she is his/her full-time officer, is naturally defined that the employee could not receive wages from the employer even if he/she fails to perform his/her duty to provide labor under a labor contract.

(5) If "worker" under Article 24 (4) of the Trade Union and Labor Relations Adjustment Act is interpreted as "all workers including the full-time worker," it is easy to explain the full-time worker determined in the public notice of the limit of exemption from working hours. This is because Article 24 (1), 2, and (3) of the Trade Union and Labor Relations Adjustment Act provides that "the full-time worker who is engaged in the affairs of a trade union only" as the full-time officer, a person who is engaged in the affairs of a trade union shall not, in principle, be deemed a full-time officer prescribed in the Act. However, under Article 24 (4) of the Trade Union and Labor Relations Adjustment Act, a person who is in charge of the affairs of a trade union shall not be deemed a full-time officer who is in charge of the affairs of the trade union without loss of wages within the limit of exemption from

If a "worker" in Paragraph 4, who does not interpret as above, refers only to a full-time worker, not a full-time worker, is subject to the restriction under Paragraph 4, so if a collective agreement or the consent of an employer is obtained, he/she can act as an unlimited trade union regardless of the limit of the exemption of working hours. As a result, the purpose of Article 24 (5) of the Trade Union and Labor Relations Adjustment Act prohibiting industrial actions is to realize the prohibition of paying wages to a full-time worker and the exemption of working hours, and the purpose of Article 24 (5) of

(6) Article 24(4) of the Trade Union and Labor Relations Adjustment Act provides that in the case of activities, such as non-exclusive executive officers or other members’ working hours, paid members of the labor-management council, grievance handling members, and occupational safety and health management members shall be guaranteed under other Acts. However, it is meaningful that the aforementioned provision is included in the limit of working hours, not separately calculated when paid under other Acts are performed, and it is also meaningful that it is included in the limit of working hours. Thus, it is difficult to view that the said provision is a provision that takes full account of the

B) As to the issues of this case

As seen earlier, the system of exemption from working hours under Article 24(4) of the Trade Union and Labor Relations Adjustment Act is for all workers including the full-time officer, and where a full-time officer or a full-time member is able to work as a paid trade union, it shall be done within the scope of exemption from working hours.

However, the key issue clause of the instant case does not stipulate the limit of hours for which a negotiating member may act as a paid trade union, and does not limit the hours during which a paid trade union may act as a paid trade union within the limit of time exemption, and does not limit the hours within the paid time limit, and stipulates that benefits shall be paid by recognizing that a paid trade union worked on a fixed and daily basis for the previous negotiating period regardless of whether a person is designated as an applicant for time exemption. In fact, the hours during which a paid trade union act as a paid trade union pursuant to the key issue clause of the instant case may exceed the limit of time exemption. This does not coincide with

Therefore, the instant disposition is lawful on the ground that the instant provision violated the Trade Union and Labor Relations Adjustment Act provisions, and the Plaintiff’s assertion that the instant provision does not violate the Trade Union and Labor Relations Adjustment Act on the premise that the instant provision should be construed to limit the workers provided in Article 24(4) of the Trade Union and Labor Relations Adjustment Act to the full-time union.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, senior judge and public officer;

Judges, fixed-up boats

Judges Park Jong-dae

A person shall be appointed.

A person shall be appointed.