[1] The purpose or purpose of the Trade Union and Labor Relations Adjustment Act to promote collective bargaining procedures by introducing the simplification of bargaining windows to multiple trade unions

[2] The purpose and function of “fair representation obligation” under Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act / Whether the duty of fair representation should be complied with in the course of implementing collective agreements other than collective bargaining or collective agreements (affirmative)

[1] Articles 5, 29(1), and 29-2(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 2016Du36956 Decided October 31, 2017 (Gong2017Ha, 2198) / [2] Supreme Court Decision 2017Da218642 Decided August 30, 2018 (Gong2018Ha, 1914) (Gong2018Ha, 1914) Supreme Court Decision 2017Du40655 Decided September 13, 2018

National Public Transport and Social Services Trade Union

The Chairman of the National Labor Relations Commission

National Automobile Trade Union Federation Seoul Metropolitan Government Bus Trade Union

Daejeon High Court Decision 2015Nu11644 decided May 12, 2016

The appeal is dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.

The grounds of appeal are examined.

1. According to the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an employee may freely organize a trade union or join it (Article 5), and a trade union may demand an employer to conduct collective bargaining on behalf of its members (Article 29(1)). However, where a trade union exists in a single business or workplace unit in more than one trade union regardless of its structural form, each trade union shall, in principle, determine a representative bargaining trade union in accordance with the procedures for simplification of bargaining windows and request an employer to conduct collective bargaining (main sentence of Article 29-2(1)) (main sentence). That being said, where the Trade Union Act introduced a system for simplification of bargaining windows against multiple trade unions to ensure the unification of collective bargaining procedures, the main purpose or purpose of the Act is to establish an efficient and stable collective bargaining system by effectively resolving the problems such as anti-constition, conflict, etc. between a trade union and an employer where multiple trade unions exercise their independent collective bargaining rights (see Supreme Court Decision 2016Du36956, Oct. 31, 2017).

In order to protect a trade union that has not become a representative bargaining trade union under the system of simplification of bargaining windows, the Trade Union Act imposes an obligation of fair representation on an employer and a representative bargaining trade union to prevent discrimination against either the trade union that has participated in the procedures for simplification of bargaining windows or its members without reasonable grounds (Article 29-4(1)). The obligation of fair representation serves as an institutional device to prevent infringement on the essential contents of the right of collective bargaining guaranteed by the Constitution, and it serves as a basis for justifying the effect of collective agreement concluded between a representative bargaining trade union and an employer on other trade unions that have participated in the procedures for simplification of bargaining windows.

In light of the purport, function, etc. of the duty of fair representation, it is reasonable to view that the duty of fair representation ought to be observed not only in the course of collective bargaining but also in the course of implementing collective agreements, which is the result thereof. In addition, in cases where a representative bargaining trade union or an employer is recognized to discriminate against another trade union or its members participating in the procedures for simplification of bargaining windows, the fact that there are reasonable grounds for such discrimination has the responsibility to assert and prove it by the representative bargaining trade union or the employer (Supreme Court Decision 2017Da218642 Decided August 30, 2018

2. The lower court determined that the Defendant’s Intervenor, a representative bargaining trade union, excluded the Plaintiff, who was another trade union participating in the procedures for simplification of bargaining windows while implementing Article 45 of the collective agreement of this case, and recognized the Defendant’s exemption from working hours only to the Defendant constituted a discrimination against a representative bargaining trade union other than the representative bargaining trade union without reasonable grounds, and thus, constitutes a violation of the duty of fair representation. Even if the number of union members was changed after the instant decision on reexamination and there was a place of business where there was no Plaintiff’s member at all among the business places of the instant employer, the illegality of the decision on reexamination should be determined at the time of the

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the duty of fair representation and the point at which the retrial decision was rendered, contrary to what is alleged in the grounds of appeal.

3. 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 on the bench.

Justices Jo Hee-de (Presiding Justice)