2011 Gohap 11892 Revocation of corrective order in a collective agreement

National Metal Trade Union

The Administrator of the Central and Central Regional Employment and Labor Office;

May 31, 2012

August 23, 2012

1. Of the corrective orders regarding collective agreements concluded between the Plaintiff and the two Won Labor Co., Ltd. on July 6, 2011, the part concerning Articles 9, 10, 14 (the treatment of those appointed by full-time officer shall be equivalent to the treatment of the full-time officer of the union), 16(1), and 81(2) of the attached Table 1 of the correction order list shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The Defendant’s corrective order against the Plaintiff on July 6, 201 is revoked in relation to the collective agreement concluded between the Plaintiff and the two Won Labor Co., Ltd.

1. Basic facts

A. The Plaintiff was an industrial trade union with which workers in the metal industry are organized, and entered into a collective agreement with two-dimensional labor companies (hereinafter referred to as “dual labor companies”) on December 10, 201 and one year from the date of the conclusion thereof (hereinafter referred to as “instant collective agreement”).

B. On July 6, 201, according to the resolution of the Gyeonggi Regional Labor Relations Commission, the Defendant issued an order for correction pursuant to Article 31(3) of the Trade Union Act on the ground that the contents of each of the provisions in the attached Table 1 of the instant collective agreement in violation of the relevant provisions of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), such as the same legal grounds as those stated in the attached Table, are illegal (hereinafter “instant disposition”). Meanwhile, the two members set the Plaintiff’s full-time officer (hereinafter “full-time officer”) of the Plaintiff’s trade union in the instant collective agreement as at least four members, on the ground that the limit of exemption from working hours determined pursuant to Article 24-2 of the Trade Union Act is 6,00 hours.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) Article 1 of the collective agreement of this case related to Article 1 of the collective agreement of this case (hereinafter “the collective agreement clause of this case”) is a provision to confirm that two members have the obligation to conduct collective bargaining with the Plaintiff regarding the labor relations of the union members belonging to the Plaintiff. In light of such provision, the Plaintiff is not a representative of the entire workers belonging to the two members, but a representative of the union members belonging to the Plaintiff. Thus, it does not infringe the right to organize, the right to select the non-members of the non-members or the right to collective bargaining of the multiple trade unions

In addition, the provisions of the negotiating party also conform to the union shop regulations in the instant collective agreement.

Therefore, the part regarding the provision of one negotiating party among the dispositions in this case is unlawful.

2) Of Article 13(3) of the instant collective agreement and the former part of the proviso to Article 14, Article 13(3) and the proviso to Article 14 of the instant collective agreement provide that the treatment of a person who takes full-time office shall correspond to the treatment of his predecessor of the union (hereinafter referred to as “pre-time officer’s treatment clause”) shall be regarded as a person who takes full-time office in the pertinent trade union or superior union, etc. and shall be paid a full-time officer’s wages. On the other hand, Article 24(2) and the main sentence of Article 81 subparag. 4 of the Trade Union Act provide that a person who takes full-time office in the pertinent trade union

The part of the "act" (hereinafter referred to as the "regulation on prohibition of full-time employment benefits") prohibits the full-time officer of a trade union from receiving wages from the employer, and prohibits the employer from paying wages to the full-time officer of a trade union by stipulating it as unfair labor practices.

However, the provision on the prohibition of full-time officer's pay is unconstitutional and invalid since it violates the three basic labor rights guaranteed by the Constitution, the principle of labor-management autonomy, the essential contents of the right to work, and the principle of excessive prohibition, and it also violates the Convention No. 135 of ILO and the 143 recommended by the generally approved international law. Moreover, Article 24 (2) of the Trade Union Act does not constitute a compulsory provision because it is difficult to regard the content of good morals and social order, and thus, it does not constitute a violation of Article 24 (2) of the Trade Union Act, even if the provision on full-time officer's pay does not lose its effect, and since the provision on full-time officer's pay is stipulated in the collective agreement of this case as the result of the affirmative demand or strike

subsection (b) of this section.

Therefore, the part on the provision of full-time treatment among the disposition of this case is illegal.

3) Articles 9(10), 14(10), and 14 of the instant collective agreement related to the latter part of Article 9(10) of the instant collective agreement provide that the part that does not fall under the provisions for the full-time officer treatment (hereinafter referred to as “non-permanent officer treatment clause”) shall be limited to cases where the full-time officer, non-permanent officer, and general members are able to engage in paid labor union activities in addition to full-time officers. Such a provision for non-permanent officer treatment does not fall under the payment of wages to full-time officers, but does not fall under the payment of wages to full-time officers, nor does it fall under the provision for the exemption of working hours under Article 24(4) of the Trade Union Act, even if two full-time officers pay wages in accordance with the provision for the treatment of non-permanent officers, and thus does not constitute unfair labor activities.

Therefore, the part of the instant disposition regarding the provision for non-exclusive treatment is unlawful.

4) Articles 16(1) and 81(2) of the collective agreement of this case related to Articles 16(1) and 81(2) of the collective agreement of this case (hereinafter “instant provision of convenience”) provide that two-wons are required to provide the Plaintiff with one vehicle for business purpose and its maintenance expenses, and the place, facilities, and means of transportation for the Plaintiff’s stores. However, there is no room for the two-wons to control and open the Plaintiff, and thus, performing the duty under Article 81 subparag. 4 of the Trade Union Act does not constitute an unfair labor practice under Article 81 subparag. 4 of the said collective agreement.

Therefore, the part regarding the provision of convenience among the disposition of this case is unlawful.

(b) Related statutes;

Attached Form 2 is as shown in the relevant statutes.

(c) judgment;

1) As to Article 5 and Article 29(1) of the Trade Union Act, workers may freely organize or join a trade union, and the representative of a trade union shall be entitled to negotiate and conclude a collective agreement with an employer or employers’ association for the trade union or union members, thereby guaranteeing workers’ freedom to form and join a trade union and the right to collective bargaining.

However, in light of the fact that the title of the provision of the one-day negotiating party is "recognition of the one-day negotiating party" and in its contents, "no other labor organizations shall be recognized", the labor union represents its members, so in this sense there is no need to separately stipulate the provision of the one-day negotiating party. Rather, the one who negotiates on behalf of all the union members is "representative of the trade union" (Article 29 (1) of the Trade Union Act) but there is a lot of room to interpret that the provision of the one-day negotiating party stipulates that only the one-day negotiating party negotiates with the employer is the only labor organization of the company. Considering that the provision of the one-day negotiating party declares that only the plaintiff is the only labor organization representing the workers belonging to the two-day negotiating parties, the labor-management council, the employees' council, and the one-time negotiating party, as well as the other labor organizations within the same workplace, it is reasonable to view that the two-day provisions include the contents rejecting the existence of the two-party negotiating party's right of association or the right of choice of multiple labor unions.

Meanwhile, according to the statement No. 3, the collective agreement of this case, contrary to the plaintiff's assertion, is recognized that there is no provision in the union shop.

Ultimately, since Article 5 of the Trade Union Act is violated and illegal, it is legitimate that the defendant orders correction of the illegal contents. The plaintiff's assertion on this is without merit.

2) As to the provision of full-time treatment

A) Legislative history and relevant provisions of full-time officer treatment

The full-time officer system, which is paid to the employer by the representative of a trade union, has long existed in the special situation of Korea in which the trade union mainly formed for each company, even though the principal executive such as the representative of a trade union is not obliged to provide labor to the employer. This system has been recognized as a form of convenience provision for union activities, and it has been established in the Supreme Court precedents that it does not constitute unfair labor practices if the payment of wages to the full-time officer is caused by the labor union's active demand or strike even if the full-time officer receives

However, in principle, wage for a full-time officer is borne by a trade union which receives labor from the full-time officer, and furthermore, there has been a lot of problems that would undermine the independence of a trade union if an employer who is in conflict with the union provides the full-time officer's wage as the main expense, and the Trade Union Act enacted by Act No. 5310, Mar. 13, 1997, prepared a legal work period for the full-time officer, and the full-time officer cannot receive wages from the employer during the period of the full-time officer, and paying wages to the full-time officer in violation

However, the above Act stipulates that the full-time officer's work hours shall be utilized in order to carry out his/her work. In particular, in cases of a small-scale trade union, if the full-time officer's work hours are prohibited due to lack of financial resources, the provisions prohibiting the payment of wages to the full-time officer cannot be performed normally, 201, 12, and 31, and at the same time, the employer and the trade union shall endeavor to gradually reduce the amount of subsidies to the full-time officer's work hours through labor-management consultation. In such cases, financial resources shall be used for the financial independence of the trade union (Article 6 of the Addenda). The provisions prohibiting the payment of wages to the full-time officer through the revision of Article 14 of the Act provide that the employer shall not be allowed to enter into force until December 31, 200, the provisions governing the exemption of wages to the full-time officer's work hours of Article 20 of the Act on the Establishment of New Labor Relations and the provisions governing the payment of wages to the full-time officer's.

B) Whether the officer's treatment clause violates the Trade Union Act

(1) The provision on the treatment of a full-time officer of the collective agreement of this case clearly violates the prohibition on the full-time officer's wages under the Trade Union Act which prohibits the full-time officer from paying any wages to his/her full-time officer only on the ground that he/she is his/her full-time officer.

(2) Furthermore, the provision prohibiting full-time officer’s benefit cannot be deemed to be in violation of the Constitution or internationally approved international agreements for the following reasons, and its legal effect is not denied. The payment of the full-time officer’s benefit to the full-time officer is a kind of convenience provision customarily recognized by the agreement between the worker and the employer in order to substantially guarantee the activities of the labor union in the labor reality in Korea. Therefore, the payment of the full-time officer’s benefit is not based on the rights of the worker or the labor union inherent to the worker or the labor union. Therefore, the payment of the full

Despite the real function of paying wages to the full-time officer in the Korean labor reality, in principle, wages to the full-time officer shall be borne by a trade union that receives wages from the full-time officer, and in that wages to the full-time officer constitute the principal part of the expenses of a trade union without any restriction, there are concerns that autonomy, which is the fundamental concept of a trade union, may be damaged if recognized without restriction. Considering these circumstances, the Trade Union Act adopts a system that prohibits the full-time officer from paying wages, but preventss the activities of a trade union that meet certain conditions under the agreement between the labor and management, and takes protective measures for the three labor rights by introducing a system that allows the payment of wages for the labor union activities that meet certain conditions. As such, in full view of the position taken by the Trade Union Act, the provisions that prohibit the full-time officer from

In addition, Article 24(2) of the Trade Union Act separately provides for unfair labor practices (Article 24(2) of the Trade Union Act, in addition to the provision on the prohibition of full-time officer's pay), considering the legislative history or system of the provision on the prohibition of full-time officer's pay, i.e., the provision on the prohibition of full-time officer's pay was newly established to eliminate the practice of paying wages to the full-time officer, and the provision on the exemption of working hours which allows the full-time officer to be paid for the full-time officer's pay under certain conditions on behalf of the full-time officer, and in particular, Article 24(2) of the Trade Union Act separately provides for unfair labor practices (where it was intended to regulate the payment of wages to the full-time officer as unfair labor practices, there is no need to maintain Article 24(2) of the Trade Union Act separately from the provision on the prohibition of full-time

Article 1 and Article 2 subparag. 1 of the ILO Convention provide that a representative of an employee shall not be subject to disadvantageous measures on the ground of his/her position or activity, and shall be provided with appropriate convenience from the enterprise so that he/she can perform his/her duties in a prompt and efficient manner. However, the prohibition on the payment of benefits to the representative of an employee who is the full-time officer is based on the principle that the labor union that is provided with benefits from the full-time officer bears the burden on the wages. It does not constitute disadvantageous measures on the ground of his/her position or activity, and the prohibition on the payment of benefits to ensure that the representative of the full-time officer is prohibited from paying benefits in a rapid and efficient manner does not constitute a violation of Article 135 subparag. 1 and subparag. 2 subparag. 1 of the ILO Convention. Moreover, the Trade Union Act introduced the system on the exemption of working hours and permits the payment of benefits to the representative of the employee, etc. under certain conditions. Accordingly, the provision on

In addition, there is no evidence that this recommendation constitutes a treaty concluded and promulgated by the Constitution or a generally accepted international law.

(3) Meanwhile, Article 31(3) of the Trade Union Act only provides that in a case where a collective agreement contains unlawful contents, an administrative agency may issue a corrective order, but does not provide a different determination as to whether a corrective order may be issued according to the judicial effect of the illegal part. In general, a corrective order is an administrative act that orders the removal of illegal state caused by an administrative violation, and is not a matter of qualification to issue a corrective order depending on whether the administrative law violation is invalid under private law.

Therefore, as long as the provision of full-time officer treatment violates Article 24 (2) of the Trade Union Act, it can be subject to a corrective order under Article 31 (3) of the Trade Union Act regardless of whether it is null and void under private law.

C) Sub-determination

In the end, since the provision of full-time officer treatment is illegal because it violates the prohibition of full-time officer's wages under the Trade Union Act, the defendant's corrective order is legitimate, and the plaintiff's assertion is without merit.

3) As to the provision for non-exclusive treatment

A) Persons subject to the Work Hours Exemption System

First of all, the application of the working hours exemption system prescribed in Article 24(4) of the Trade Union Act is examined.

Article 24 (2) of the Trade Union Act, which prohibits the payment of wages to full-time officers, is introduced in the course of discussions related to the enforcement period of Article 24 (2) of the Trade Union Act, and Article 24 (4) of the Trade Union Act provides not only a part of the provisions on full-time officers, but also a literal expression "(Article 24 (2))" in all of the provisions, there is no room to regard the working hours exemption system as an exception to the prohibition of the payment of wages to full-time officers.

However, considering the following circumstances, it is reasonable to view that the working hours exemption system under Article 24(4) of the Trade Union Act is for all workers including the full-time officer, and it is not limited to the full-time officer.

The prohibition of full-time officer's allowance is clear that it covers the full-time officer.

On the other hand, it is evident that the former part of Article 24(4) or the proviso of Article 81 subparag. 4 of the Trade Union Act related to the working hours exemption system is subject to general workers in terms of the language and text. As such, the Trade Union Act consistently separates the application of the provision on whether to pay wages in relation to the activities of a trade union into the terms of "pre-time officer" and "worker" and clearly

Although the provision prohibiting the payment of wages to the full-time officer was newly established and the implementation of the provision is expected to have been postponed for a long time, the provision on the exemption of working hours was introduced as an alternative to the expected problem due to the implementation of the provision, but it is merely the historical opportunity of the legislation, and the introduction of the exemption of working hours is merely the same. In this regard, the introduction of the exemption of working hours is possible not only to limit the payment of wages to the full-time officer but also to separately determine the persons who are allowed to be paid for the full-time officer's activities in order to solve the phenomenon of labor union activities due to the prohibition of paying wages to the full-time officer under the legislative policy, but also to limit the exemption of working hours to the regulations on the full-time officer

Rather, if Article 24(4) of the Trade Union Act applies only to the full-time officer, the full-time officer is exempt from the obligation to provide labor under the labor contract and can only engage in the affairs of the trade union with the consent of the employer, but on behalf of the employer, since the employer is unable to receive any benefits from the beginning, it cannot be deemed that the full-time officer loses his/her wages in itself. Article 24(4) of the Trade Union Act provides that "no trade union may maintain and manage the trade union without the loss of wages." Thus, there is a problem that the concept and logic of the predecessor is inconsistent with the concept

On the other hand, considering that the principle is that if an employee fails to perform his/her duty to provide labor under an employment contract while performing his/her duties, he/she shall not be paid wages from the employer for that period, it is natural to view that the part that "it may maintain and manage a trade union without loss of wages under Article 24 (4) of the Trade Union Act, regardless of whether he/she is the full-time officer, may be paid wages from the employer even if the employee fails to perform his/her duty to provide labor under an employment contract, regardless of whether he/she is an employee or not

In addition, Article 24 (4) of the Trade Union Act applies only to the full-time officer, and Article 24 (4) of the Act does not apply to the union or union members other than the full-time officer. Since the union or union members other than the full-time officer are not restricted by Article 24 (4) of the Trade Union Act, if a collective agreement or employer consentss only to the limit of the exemption of working hours, the union can act as an unlimited paid union regardless of the limit of the exemption of working hours, and the result is dismissed.

B) Whether the provision for non-exclusive treatment is unlawful

As seen earlier, since the system of exemption from working hours under Article 24(4) of the Trade Union Act covers all workers including full-time officers, it is difficult to deem that the provision on exemption from working hours does not go beyond the limit of exemption from working hours, unless the partial full-time officer or a full-time member, who is entitled to act as a paid trade union, exceeds the limit of exemption from working hours.

On the other hand, a collective agreement shall be objectively interpreted as having expressed the intent of the parties in accordance with the language and text written in the relevant place, barring any special circumstances. Furthermore, since the collective agreement is conducted through collective bargaining between an independent organization of workers and an employer with intent to maintain and improve workers’ working conditions and enhance their economic and social status by promoting workers’ welfare, the provision may not be interpreted disadvantageously to workers (see, e.g., Supreme Court Decision 2009Da102452, Mar. 10, 201). If there is room for legitimate interpretation, it shall be readily construed as unlawful.

In full view of the following circumstances based on such interpretation principle, it is reasonable to see that the provision on non-exclusive treatment is within the scope of the exemption system, and therefore, it is not illegal.

○ In itself, the language and text of the provision for treatment of non-exclusive workers cannot be readily concluded that the hours during which a trade union’s activities are permitted as a paid employee pursuant to the said provision exceed 6,00 hours, which are the limit of time exemption applied to the Plaintiff.

In this regard, the defendant has five full-time officers in accordance with the collective agreement of this case, and such full-time officers exceed the limit of 6,000 hours. Thus, the defendant's position would exceed the limit of exemption from working hours without examining any more cases in accordance with the treatment clause for non-permanent employees. However, such defendant's position is based on the premise that the plaintiff's full-time officer's salary is paid to the full-time officer in accordance with the treatment clause for the full-time officer. As seen earlier, it is inappropriate to determine the illegality of the treatment clause for non-permanent employees on the premise that the provision for the full-time officer's treatment is illegal and thus becomes subject to a corrective order.

The provisions for treatment of non-exclusive workers may apply to cases where a member of the plaintiff conducts full-time or part-time activities in wages agreements or collective agreements, higher-level labor unions, etc., or conduct an association activity that has been consulted between the plaintiff and his/her two-time members.

However, the work of entering into a wage agreement or a collective agreement (Article 9(10) of the Trade Union Act provides that work hours exemption system applies as prescribed by the Act on the Trade Union. In addition, Article 24(4) of the Trade Union Act comprehensively provides that work subject to work hours exemption shall be "maintenance and management of an industrial trade union for the sound development of labor-management relations" and that an agreement between an employer and a trade union is necessary in order to apply a work hours exemption system, barring special circumstances such as work which is clearly unrelated to the trade union in question, unless the work is determined by the agreement between the employer and the trade union, it shall be interpreted that the work is included in the work subject to the said exemption of work hours under Article 24(4) of the Trade Union Act. From this perspective, in principle, the "working hours exemption system" between the two parties and the Plaintiff (Article 10 of the collective agreement of this case) constitutes work subject to the said exemption of work hours as a matter of principle, and the trade union under the Trade Union Act includes industrial trade unions, associated organizations, etc., other than company-level trade unions, or higher trade unions or its associated organization.

Unless there are any circumstances, it is reasonable to view that the provision on non-permanent employment constitutes a business subject to exemption from working hours. Ultimately, all of the duties scheduled under the provision on non-permanent employment constitutes a business subject to

○, however, the provision for the treatment of non-exclusive workers does not stipulate the limit of the hours for which a trade union may act as a paid employee, and thus, in fact, the time when a trade union act as a paid employee pursuant to the provision for the treatment of non-exclusive workers may exceed the limit of the exemption of working hours. However, this is merely an issue for which the limit of the exemption of working hours is not properly observed, and it is difficult to deem that the provision for non-exclusive workers treatment itself is illegal. In other words, the provision for non-exclusive workers can be effective only to the extent that it does not exceed the limit of the exemption of working hours. If such purpose is specified in the above provision, it is easy to determine whether the scope of the application is beyond the limit of the exemption of working hours clearly revealed, but even if such purpose is not specified, it does not necessarily mean that the effective scope of the provision for non-exclusive workers’ treatment is not limited as above, and it does not violate the intention of both parties to the instant collective agreement or the Plaintiff.

C) Sub-determination

Ultimately, since the provision on treatment of non-exclusives cannot be deemed to violate Article 24(2) and (4) or Article 81 subparag. 4 of the Trade Union Act, it is unlawful for the Defendant to order correction of the provision on treatment of non-exclusives that are not unlawful as such.

4) As to the provision of convenience, this part of the issue is whether providing certain convenience to the Plaintiff pursuant to the provision of convenience constitutes “an act of assisting the operating expenses of a trade union” in the main text of Article 81 subparag. 4 of the Trade Union Act.

However, the purpose of the Trade Union Act prohibiting the operation expenses of a trade union as an unfair labor practice is to ensure the autonomy of the trade union. Therefore, it is reasonable to view that the establishment of unfair labor practice due to the operation expenses support does not constitute unfair labor practice unless the risk of losing the autonomy of the trade union is significantly high due to the operation expenses support, and in particular, if the operation expenses support was obtained as a result of the active demand or the strike of the trade union, it is unlikely that the operation expenses support would undermine the autonomy of the trade union, and thus, it does not constitute unfair labor practice (see, e.g., Supreme Court Decision 90Nu63921, May 28, 1991). In this context, the provision of a minimum size of a trade union office is not an unfair labor practice. Therefore, it is reasonable to view that the proviso of Article 81 subparag. 4 of the Trade Union Act, which provides that "the provision of a trade union office" does not fall under unfair labor practice, in addition to the office work of the trade union, if an employee loses the autonomy of the trade union.

In accordance with such interpretation, the provision of convenience is deemed to include unfair labor practices in violation of Article 81 subparag. 4 of the Trade Union Act. In order to regard the provision of convenience as its content, the provision of convenience should be deemed to fall under the provision of operating expenses of a trade union activity or of a very dangerous risk that the provision of convenience may lose the Plaintiff’s autonomy and interfere with the Plaintiff’s organization and operation. However, the provision of convenience provided to the Plaintiff pursuant to the provision of convenience is a provision of convenience, which provides one business vehicle for union activities, the burden of maintenance and management expenses, the provision of places, facilities, and means of transport for union members’ welfare activities. In light of the size of the company of the two business entities or the size of the two business entities within the Plaintiff, such provision of convenience is deemed to fall under the provision of operating expenses of a trade union activity of a little nature that is necessary for union activities or that there is little risk of undermining the independence of the trade union, and there is no evidence to prove otherwise that there is a significant risk

Therefore, it is illegal that the defendant ordered correction of the provision of convenience even though the provision of convenience does not violate Article 81 subparagraph 4 of the Trade Union Act and is not illegal.

5) Sub-decisions

According to the above, the part of the disposition of this case concerning the clauses of one party and the provision of full-time officer treatment is legitimate, and the part concerning the provision of non-permanent officer treatment and the provision of convenience is unlawful. Thus, the disposition of this case should be revoked to the extent that it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The chief judge, chief judge and associate judge

Judges Yellow Jae-ho

Judges Kim Gin-han

1) The above decision of the Supreme Court is based on the assistance of operating expenses when the employer pays wages to the full-time employee or the employee of the labor union.

The issue is whether it constitutes unfair labor practice. Here, the defendant is after the above Supreme Court ruling.

As long as the payment of wages to union employees is prohibited by the amendment of the Trade Union Act, the above decision of the Supreme Court is amended.

It argues that the law can not be applied in relation to the law. However, the amended Trade Union Act provides that employers may not be applied in accordance with the law.

Part concerning the assistance of other operating expenses only if the payment of wages to the full-time officer is clearly prohibited;

The decision of the above Supreme Court is related to the assistance of operating expenses other than the payment of wages to the full-time officer.

It is reasonable to see that it still has a meaning.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.