[1] Whether “the duty of fair representation” under Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act ought to be observed in the course of implementing a collective agreement (affirmative), and where it is acknowledged that the representative bargaining trade union or the user has discriminated against another trade union participating in the procedures for simplification of bargaining windows or its members, the subject of the burden of asserting and verifying the existence of reasonable grounds for discrimination (=the representative bargaining trade union or employer)

[2] Where an employer provides a trade union office that can be used at a representative bargaining trade union in accordance with a collective agreement, etc., whether a trade union office should be provided to another trade union participating in the procedures for simplification of bargaining windows (affirmative in principle), and where a trade union office is not provided or an opportunity to temporarily use company facilities is given due to physical limitations or cost-sharing, whether discrimination can be deemed reasonable (negative)

[1] A trade union which is not a representative bargaining trade union under the system of the simplification of bargaining windows is unable to independently exercise the right of collective bargaining. Thus, in order to protect trade unions which have not become a representative bargaining trade union, the Trade Union and Labor Relations Adjustment Act (hereinafter “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 participating in the procedures for simplification of bargaining windows or its members without reasonable grounds (Article 29-4(1)). The duty of fair representation serves as an institutional device to ensure that the essential contents of the right of collective bargaining guaranteed by the Constitution are not infringed, and the validity of a collective agreement concluded by a representative bargaining trade union and an employer by the representative bargaining trade union also affects other trade unions

In light of the purport and function 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. Moreover, in cases where a representative bargaining trade union or an employer is recognized to discriminate against another trade union participating in the procedures for simplification of bargaining windows or its members, the fact that there are reasonable grounds for such discrimination has the responsibility of asserting and proving to the representative

[2] Considering the importance of a trade union office as a space for daily business affairs necessary for the establishment and development of a trade union, so long as an employer provided a trade union office that can be regularly used to a representative bargaining trade union pursuant to a collective agreement, barring any special circumstance, it is reasonable to view that a certain space for ordinary use should be provided to other trade unions which participated in the procedures for the simplification of bargaining windows as a trade union office even if it is not uniform or proportional to all other trade unions, barring special circumstances. On the contrary, a representative bargaining trade union cannot be deemed to have reasonable grounds for discrimination on the ground that other trade unions which participated in the procedures for the simplification of bargaining windows when it provides a trade union office and participated in the procedures for the simplification of bargaining windows are not provided

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

National Public Transport and Services Trade Union (Attorney Dong-hwan, Counsel for the plaintiff-appellant)

Geumnam Transportation Co., Ltd. and six others (Law Firm Shin-ro, Attorneys Cho Yong-pon et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2016Na16038 decided February 16, 2017

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. 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 the employer to conduct collective bargaining (main sentence of Article 29-2(1)) (main sentence). That said, where the Trade Union Act introduced a system for simplification of bargaining windows for 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 any infringement on the essential contents of the right of collective bargaining guaranteed by the Constitution, and the validity of a collective agreement concluded between a representative bargaining trade union and an employer on another trade union that has participated in the procedures for simplification of bargaining windows is justifiable.

In light of the intent and function 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 have discriminated 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 such discrimination

Meanwhile, taking into account the importance of the office of a trade union as a place of daily business necessary for the existence and development of a trade union, insofar as an employer provided a representative bargaining trade union office that can be used on a regular basis pursuant to a collective agreement, barring special circumstances, it is reasonable to view that other trade unions participating in the procedures for the simplification of bargaining windows should provide a trade union office with a certain space that can be used on a regular basis, even if not uniformly or pro rata. On the other hand, a representative bargaining trade union cannot be deemed to have reasonable grounds for discrimination by providing a trade union office to other trade unions that participated in the procedures for the simplification of bargaining windows when it provides a trade union office and provided a representative bargaining trade union with an opportunity to use company facilities on a temporary basis.

B. The lower court determined that the Defendants, a representative bargaining trade union and an employer, agreed to provide a trade union office only to the representative bargaining trade union through the agreement on December 23, 2013 and the agreement on June 24, 2014 constituted a discrimination against a trade union different from the representative bargaining trade union without reasonable grounds, and thus constitutes a violation of the duty of fair representation.

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, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The lower court determined that: (a) even after the simplification of bargaining windows was made, the Defendants did not recognize the exemption from working hours only to the representative bargaining trade union and did not recognize the Plaintiff; and (b) even if the Plaintiff demanded that the exemption from working hours be granted prior to May 30, 2014, the Defendants did not take any measures regarding the Plaintiff’s exemption from working hours when concluding an agreement on May 30, 2014, the Defendants committed discrimination against the Plaintiff without reasonable grounds, and thus, constitutes a violation of the duty of fair representation.

Examining the foregoing legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the duty of fair representation, contrary to what is alleged in the grounds of appeal.

3. Regarding ground of appeal No. 3

The lower court determined that the Defendants were liable to pay consolation money as compensation for tort to the Plaintiff on the ground that the Plaintiff suffered intangible damage due to the Defendants’ violation of the duty of fair representation.

Examining the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the calculation of tort and consolation money, contrary to what is alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are 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 Kim Seon-soo (Presiding Justice)