[1] The purpose and purpose of the Trade Union and Labor Relations Adjustment Act to facilitate 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)

[3] In a case 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 is given to use company facilities temporarily due to physical limitations or burden of expenses, whether there is a reasonable reason (negative)

[1] Articles 29(1), 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 / [3] Article 29-4(1) of the Trade Union and Labor Relations Adjustment

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

Gyeongyang Trade Union

The Chairman of the National Labor Relations Commission

Daegu-si Co., Ltd. and five others

Daejeon High Court Decision 2016Nu13005 decided March 23, 2017

The appeal is dismissed. The costs of appeal are assessed against the Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. Under the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), workers may freely organize and join a trade union (the main sentence of Article 5), and a trade union may demand an employer to conduct collective bargaining on behalf of its members (Article 29(1)). However, where at least two trade unions exist in one business or workplace regardless of its structural form, each trade union shall, in principle, request an employer to conduct collective bargaining by setting a representative bargaining trade union in accordance with the procedures for simplification of bargaining windows (main sentence of Article 29-2(1)). To ensure that the Trade Union Act introduced the system for simplification of bargaining windows for multiple trade unions to promote 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 issues, such as the anti-constition and conflict between a trade union or between a trade union and an employer when 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 functions as an institutional device to prevent infringement on the essential contents of the right of collective bargaining guaranteed by the Constitution, and at the same time, it is reasonable that the collective agreement concluded between a representative bargaining trade union and an employer has effect on other trade unions participating in the procedures for simplification of bargaining windows.

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 any special circumstance, 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 contrary, if a representative bargaining trade union provided a trade union office to a representative bargaining trade union and provided another trade union participating in the procedures for the simplification of bargaining windows as a trade union office and provided a trade union office with an opportunity to use company facilities on a temporary basis, it cannot be deemed that there are reasonable grounds for discrimination

2. The lower court determined that the provisions of the collective agreement concluded between the representative bargaining trade union and the Intervenor’s Intervenor with the content that the representative bargaining trade union provide a trade union office only to the representative bargaining trade union was a violation of the duty of fair representation.

Examining the relevant legal principles and records, such determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the duty of fair representation, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

3. Therefore, the appeal is dismissed, and the costs of appeal against the intervention are assessed against the losing party. The remainder is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Min You-sook (Presiding Justice)