In cases where a general meeting of a trade union establishes a board of representatives in lieu of a general meeting through a resolution of the enactment and amendment of the regulations and determines “matters concerning the amendment of the regulations” as a resolution of the board of representatives, whether the general meeting may still adopt a resolution on “matters concerning the amendment of the regulations” (affirmative)

In accordance with Articles 16(1) and (2) and 17(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), where a trade union separately determines the matters to be resolved at a general meeting and matters to be resolved at a meeting by the board of representatives in lieu of the general meeting in the bylaws, and clearly separates the matters to be resolved at a general meeting from the general meeting, barring any special circumstance, it violates the rules to immediately make a resolution on the matters determined

However, in light of the fact that the authority to enact and amend the rules as a resolution of a general meeting (Article 16(1)1 of the Trade Union Act is the fundamental and fundamental authority of the general meeting consisting of all union members, and that the council of delegates is established only by the rules (Article 17(1) of the Trade Union Act) and the existence and authority of the board of delegates are derived from the resolution of the general meeting on the rules of the general meeting, it cannot be deemed that the authority to amend the rules of the general meeting is extinguished even in cases where the general meeting establishes a board of delegates in lieu of the general meeting through the resolution of the regulations and determines “matters concerning the amendment of the regulations” as a resolution of the board of delegates. A general meeting may still make a resolution on “matters concerning the amendment of the regulations” with attendance of a majority of all union members and with the consent of at least two thirds of the union members present at the general meeting.

Articles 16(1) and (2), and 17(1) of the Trade Union and Labor Relations Adjustment Act

Korea Airports Corporation Trade Union (Attorneys Kim Young-deok et al., Counsel for the plaintiff-appellant)

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

Seoul High Court Decision 2011Nu31828 decided February 9, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. Article 16(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union and Labor Relations Adjustment Act”) provides that “matters falling under any of the following subparagraphs shall undergo a resolution at a general meeting.” Article 16(1)1 provides that “matters concerning the enactment and amendment of the bylaws shall be subject to the resolution of a general meeting; “matters concerning the election and dismissal of executives;” “matters concerning collective agreements” in subparagraph 3; “matters concerning the establishment, management or disposition of funds” in subparagraph 4; “matters concerning the establishment, and dissolution of, or the withdrawal from, a partnership organization” in subparagraph 6; “matters concerning the merger, division, or dissolution of a partnership organization” in subparagraph 7; “matters concerning the alteration of the organizational form” in subparagraph 9; and “other important matters” in subparagraph 2 provides that “where a majority of the incumbent members present and a resolution is made with the consent of a majority of the members present, the enactment and amendment of the bylaws; and “matters concerning the dissolution, dissolution, and dissolution of at least one-third of the members present and present members” shall be substituted by the board of representatives.

B. In a case where a trade union has established a board of representatives instead of the general meeting under the above Trade Union and Labor Relations Adjustment Act, and clearly separates the matters to be resolved at the general meeting from the matters to be resolved at the board of representatives, barring any special circumstance, making a resolution immediately on the matters determined by the board of representatives as the matters to be resolved at

However, in light of the fact that the authority to enact and amend the regulations as a resolution of a general meeting (Article 16(1)1 of the Trade Union and Labor Relations Adjustment Act) is the fundamental and fundamental authority of the general meeting composed of all union members, and the council of delegates is established only by such regulations (Article 17(1) of the Trade Union and Labor Relations Adjustment Act) and the existence and authority of the council of delegates are derived from the resolution of the general meeting rules, the general meeting shall not be deemed to have extinguished the authority to amend the regulations of the general meeting even if the general meeting sets the "matters concerning the amendment of the regulations" at the board of delegates instead of the general meeting through the resolution of the general meeting and determines the "matters concerning the amendment of the regulations" as a resolution of the general meeting, and the general meeting may still pass a resolution with the attendance of a majority of all union members and with the consent of at least 2/3 of the union members present at the general meeting.

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted by the lower court, Article 15 of the Plaintiff’s union rules (amended by April 28, 2010; hereinafter “instant rules”) provides that “this association shall have the following organizations:” and Article 23 provides that “the resolutions of the Congress shall be as follows; “the matters concerning the enactment and amendment of the rules and regulations (Article 1); “the matters concerning the establishment, accession, or withdrawal of the Union organizations (Article 5)”; Article 95 provides that “the proposed rules shall be announced by the chairperson for a period of not less than seven days; Article 95 provides that “the proposed rules shall be announced by the chairperson for a period of not less than 2/3 of the incumbent representatives present at the Assembly and with consent of not less than 2/3 of the representatives present at the Assembly;” and Article 95 provides that “the proposed rules shall be approved by the amendment of the bylaws from 20 days to 20% of the matters concerning the agenda of the Assembly; and its amendment shall be approved No. 2810%.

3. Examining the above facts in light of the legal principles as seen earlier, even if the instant regulations clearly separate the matters to be resolved at the general meeting and the matters to be resolved at the representatives’ meeting, such as where the matters concerning the amendment of the regulations and the “matters concerning the establishment, joining, or withdrawal of a partnership organization,” separately from the general meeting, are stipulated as the matters to be resolved at the representatives’ meeting, the authority to amend the instant regulations cannot be deemed extinguished, and the general meeting may still pass a resolution on matters concerning the amendment of the instant regulations with the attendance of a majority of the incumbent members and the consent of a majority of the present members or more than 2/3 of the present members, and therefore, the instant general meeting’s resolution cannot be deemed as violating Article 23 subparag. 1, 5, and Article 96 of the instant regulations.

Nevertheless, the lower court determined that the Defendant’s corrective order was lawful on the premise that the instant general assembly resolution was not permissible against the instant regulations. In so doing, it erred by misapprehending the legal doctrine on the status of the general assembly of trade unions and the board of representatives, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)