(영문) 인천지방법원 2011.9.8.선고 2010구합4968 판결

1. As to the Plaintiff on September 30, 2010, the Defendant’s corrective order regarding the attached table 2 through 9 of the collective agreement concluded between the Plaintiff and the Korea Voluntary Employment Company shall be revoked.

2. The plaintiff's remaining claims are dismissed.

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

4. Disposition stated in paragraph 1 shall be suspended until the judgment of this case becomes final and conclusive.

Purport of claim

The Defendant’s corrective order regarding the collective agreement concluded between the Plaintiff and the Embdoz Co., Ltd. on September 30, 2010 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is an industrial trade union established on February 8, 2001, whose target is metal industry and metal-related industries workers, etc.

B. On June 29, 2010, the Plaintiff entered into a collective agreement (hereinafter referred to as “instant collective agreement”) including the provisions in the attached Table 1 list (hereinafter referred to as “instant provision”) with the Korea Embdodododozer Co., Ltd. (hereinafter referred to as the “instant company”) from April 1, 2010 to March 31, 2012, setting the term of validity from April 1, 2010.

C. On August 4, 2010, the head of the Daegu Regional Labor Relations Commission requested a resolution to take corrective measures under the collective agreement on the grounds that the instant provision was in violation of the relevant provisions of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Relations Adjustment Act”). On August 25, 2010, the Gyeongbuk Regional Labor Relations Commission decided that the instant provision violated the Trade Union and Labor Relations Adjustment Act.

D. On September 30, 2010, the head of the Daegu Regional Employment and Labor Office issued an order to correct the instant provision based on Article 31(3) of the Trade Union and Labor Relations Adjustment Act on the ground that the instant company violated each provision of the Trade Union and Labor Relations Adjustment Act, among the details of the instant collective agreement, on the ground that the instant provision violated each provision of the Trade Union and Labor Relations Adjustment Act (hereinafter “instant corrective order”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2 and 3 (including branch numbers, if any; hereinafter the same shall apply) and the purport of the whole pleadings.

2. The key issue clause of this case is as follows (the fact that there is no dispute).

A. Article 1 (Negotiating Parties) of the instant collective agreement provides, “The Company recognizes that it is the only labor organization that negotiates wages, conditions of labor, rights to union activities and other matters on behalf of all union members and does not recognize any other labor organization” (hereinafter referred to as “one-day negotiating party clause”).

B. Article 5(2) of the collective agreement of this case provides that "where a person disputing the validity of an appeal applies for remedy or lawsuit to the Labor Relations Commission or the court, he/she shall not be interpreted as a person who is not a member until the final and conclusive judgment is rendered, nor shall he/she limit access and activities within the company (hereinafter referred to as "the provision on eligibility of a member")." Article 15(1) of the collective agreement of this case provides that "the period of full-time officer shall be recognized as the period of his/her full-time officer and shall not be treated disadvantageously." Paragraph (3) of the same Article provides that "the company shall grant two weeks' paid leave in order to transfer his/her full-time officer to another person after the expiration of his/her term of office"; Paragraph (6) of the same Article provides that "the wages of the full-time officer shall be paid monthly wages plus 100 hours of overtime work of the full-time officer, the bonus shall be paid at least 700 percent of the total amount of all the previous basic pay + various kinds of the full-time wages shall be paid in the same case.

D. Article 142(3) of the instant collective agreement provides that "The treatment of a temporary full-time negotiating member (referring to a temporary full-time negotiating member recognized as a temporary full-time member from the time of sending a proposal for collective bargaining to the final view. Article 142(1) of the instant collective agreement, and the subject of the judgment) shall be based on the treatment for full-time officer (which appears to be a clerical error in Article 15) under Article 14(2) of the instant collective agreement, and the above period (which is the period from the date of the public announcement of the candidates for officers to the date of the election. The election management and the date of the public announcement of the candidates for officers to the date of the election. The subject of the judgment in Article 42(2) of the instant collective agreement, each of which is recognized as a temporary full-time negotiating member

E. Article 15(7) of the instant collective agreement provides that “A company shall provide gasoline 200 litres to a union without compensation every month for its activities.” Article 16 provides that “A company shall pay an amount equivalent to 300,000 won per month for its financial independence to the union: Provided, That the union shall manage and operate the union,” while Article 19(2) provides that “a company shall bear the expenses for the management and maintenance of the office of the union (e.g., heating and cooling expenses, potable water, electricity, communications expenses, etc.)” (hereinafter referred to as “facilities provision”).

3. The plaintiff's assertion

The Plaintiff asserts that the instant provision does not violate the relevant provisions of the Trade Union and Labor Relations Adjustment Act, and thus, the instant disposition should be revoked in an unlawful manner.

(a) Provisions applicable to each negotiating party;

Article 7 of the Addenda to the Trade Union and Labor Relations Adjustment Act (Act No. 9930, Jan. 1, 2010; hereinafter the same) prohibits the establishment of multiple trade unions until June 30, 201, notwithstanding the provisions of Article 5 of the Trade Union and Labor Relations Adjustment Act, and the defendant, based on the above provisions, has denied the establishment of a trade union under Article 2 in the case of a workplace which has an existing trade union, regardless of its structural form. Therefore, as of September 30, 2010, the date of the instant disposition does not infringe the right to organize of other trade unions guaranteed by Article 5 of the Trade Union and Labor Relations Adjustment Act.

(b) Provisions concerning qualification of dismissed members;

The proviso of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act applies only to cases where the dismissal of a member of a company-level trade union from an employer is denied, and the above provision does not apply to an industrial, occupational, and regional trade union which does not require any subordinate relationship to a certain employer. Thus, the above provision does not violate the Trade Union and Labor Relations Adjustment Act. Article 24(2) of the Trade Union and Labor Relations Adjustment Act prohibiting the full-time officer from paying wages to the full-time officer of a trade union (part of the claim is also asserted as to Article 13 of the Trade Union and Labor Relations Adjustment Act) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act that prescribe the above acts as unfair labor practices. Article 33 of the Trade Union and Labor Relations Adjustment Act violates the essential contents of the three labor rights guaranteed by Article 33, 10, and 37(1) of the Constitution. Article 32 of the Constitution of the Republic of Korea infringes on the fundamental contents of the right to work under Article 37(2) of the Constitution.

2) As a matter of principle, whether to pay wages to full-time union workers or the scope thereof is a matter of self-determination by labor and management, and the scope of exemption from working hours is about good morals and social order.

In light of the fact that there is no penal provision for Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act, it is difficult to see that Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act is a voluntary and literary provision, and even if a trade union has concluded a collective agreement that demands payment of full-time expenses or meets the limit of exemption from working hours, it is valid in judicially.

3) In full view of the provisions of Article 24(3), (4), and (5) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act stipulating the limit of full-time officer’s exemption of working hours in relation to the payment of full-time officer’s wages, the enforcement date is July 1, 2010 under the proviso to Article 1 of the Addenda of the Trade Union and Labor Relations Adjustment Act, and the provisions of the proviso to Article 3 of the Addenda have the meaning of the aforementioned provisions on the limit of working hours after the enforcement date, the “the enforcement date of the main sentence of Article 3 of the Addenda” shall be construed as July 1, 2010. Accordingly, the provision on full-time officer’s treatment included in the instant collective agreement concluded before July 1, 2010, cannot be deemed unlawful as it has the validity of

4) Even in cases where a labor-management has agreed on a limit exceeding the limit of time off, in light of the attitude of the previous precedents, it shall be deemed that unfair labor practices under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act are not established unless the trade union’s risk of losing autonomy due to the payment of the relevant

(d) A clause concerning treatment of non-exclusive workers;

Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act applies to the full-time officer who performs the affairs of a trade union only, and does not apply to the non-full-time officer, negotiating members, etc. Therefore, the provision on non-full-time officer treatment cannot be said to violate the Trade Union and Labor Relations Adjustment Act.

E. The provision on the provision of facility convenience is the result of the Plaintiff trade union’s independent activities, which is subject to the affirmative demand for the instant company. Since the provision on the provision of convenience to another workplace belonging to the Plaintiff is concluded under a collective agreement on the provision of convenience to the extent similar thereto, it does not constitute an unfair labor practice as provided by Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, since it cannot be said that there is a significant risk that

4. Relevant statutes;

Attached Form 2 shall be as shown in attached Table 2.

5. Determination

A. As to the clauses on the one-day negotiating party

1) From the time when the Trade Union and Labor Relations Adjustment Act was enacted by Act No. 5310 on March 13, 1997, “workers may freely organize a trade union or join it.” Article 5 of the Labor Union and Labor Relations Adjustment Act permits the establishment of multiple labor unions in full. However, Article 5(1) of the Addenda at the time of the enactment of the Trade Union and Labor Relations Adjustment Act (in case where a trade union is organized in a single business or workplace, it shall not establish a new trade union with the trade union subject to organization until June 30, 201, notwithstanding the provisions of Article 5, until June 30, 201.” The above provision aims to prohibit the establishment of multiple trade unions in Korean industrial sites where a company-level trade union of each business or workplace is mainly organized, from the time of the enactment of Act No. 5310 on March 13, 1997 until the date of establishment of multiple labor unions, such as methods and procedures for the simplification of bargaining windows, etc., it refers to the case where it has an independent business or labor union established 20.

In light of this, in the case where a business or a workplace is organized by a company-level trade union or the branches or divisions of a unit trade union by industry, occupation, and region equivalent thereto, it is possible to newly establish a primary-corporate trade union by occupation, and a regional trade union by primary-corporate industry, occupation, and region whose organization targets are different. On the contrary, in the case where a trade union by primary-corporate industry, occupation, and region is established, it is possible to newly establish a unit trade union by company or by occupation and region whose organization targets are different.

2) In the instant case, since the Plaintiff, which is an industrial unit trade union, was a party to the instant collective agreement and concluded the instant collective agreement, it cannot be deemed that the instant company organized a company unit trade union or a branch or chapter corresponding thereto. Therefore, even on July 1, 201, where the establishment of multiple labor union is allowed at the instant company’s workplace, employees belonging to the workplace may establish a company unit trade union or a trade union by occupation or region different from the Plaintiff, and the instant trade union may demand collective bargaining with respect to the instant company by notifying the Plaintiff of the existence thereof. The instant collective trade union clause that does not recognize the existence of such trade union is in violation of Articles 5 and 29(1) of the Trade Union and Labor Relations Adjustment Act that guarantees the formation and joining of the trade union by workers belonging to the workplace of the instant company.

Therefore, the disposition of this case on the clauses of the negotiating party of this case is legitimate, and the plaintiff's assertion on this point is not accepted.

B. As to Article 2 subparag. 4 (d) of the Trade Union Act, the proviso of Article 3 subparag. 4 (d) of the same Act, which the Defendant, cited as the provision on the qualification of the dismissed union members as the provision on the law violating the provision on the qualification of the dismissed union members, does not constitute the current provision on the provision on the “Provided, That the proviso of Article 3 subparag. 4 (d) of the same Act, which had existed before the enactment of the current Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996), but should not be interpreted as a person who is not a worker, but a new employer’s right to subscribe to the labor union under the former Trade Union Act was not established by the enactment of the former Trade Union Act. The proviso of Article 3 subparag. 4 of the same Act was established upon the amendment of the Trade Union Act on Nov. 28, 1987. In other words, the legislative background of our nation’s trade union was as follows: it was a general provision on the establishment of the workers’ right of industrial trade union or labor union.

Meanwhile, the concept of workers under the Trade Union and Labor Relations Adjustment Act is determined according to the purpose of guaranteeing the three labor rights, such as the maintenance and improvement of working conditions and the improvement of the social and economic status of workers regardless of whether they actually provide labor or have a labor relationship with a specific employer. As such, Article 2 subparag. 1 of the Trade Union and Labor Relations Adjustment Act only provides that workers who are able to organize and join a trade union, regardless of the type of occupation, are “persons living by means of wages, wages, and other equivalent income,” and does not follow the definition of workers under the Labor Standards Act that assumes individual labor relations (for the purpose of wages). Therefore, workers under the Trade Union and Labor Relations Adjustment Act are employed by a specific employer as well as those who temporarily work or are seeking to find jobs, and are living with wages and other equivalent income. In other words, even if they did not have a labor relationship with a specific employer, so long as they maintain their livelihood with a pregnant working condition (e.g., working conditions that are practically realized when they are employed later, they can freely form and improve their labor conditions, such as a trade union, etc.

In full view of the purport of the proviso of Article 2 subparag. 4 (d) of the Trade Union and Labor Relations Adjustment Act and the concept of workers under the Trade Union and Labor Relations Adjustment Act, this proviso aims to prevent the formation of a trade union by excluding a specific worker from a trade union in the form of a company-level trade union and the activities of a trade union, and to prevent unfair infringement of employer’s three labor rights in order to prevent the establishment of a trade union and the activities of a trade union. As such, it is merely a provision prepared in a realistic necessity to ensure the establishment and activities of a company-level trade union. In this case, whether a worker is recognized as a member of a trade union under the Trade Union and Labor Relations Adjustment Act (in this case, a worker who claims the validity of dismissal by filing a lawsuit with a court) who is required to be recognized as a member of a company pursuant to the proviso, can be determined separately through collective bargaining and collective agreement between the trade union and the employer, and it cannot be ordered to correct that the State's intervention in this case should exclude a person who is recognized as a member from a union member.

C. Regarding the provision on the treatment of full-time officer

The defendant issued the corrective order of this case on the grounds that this provision violates Article 24(2) and Article 81(4) of the Trade Union and Labor Relations Adjustment Act with respect to the provision of full-time officer treatment of this case. We examine whether this collective agreement provisions violate Article 24(2) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act.

First of all, Articles 24(2) and 81(4) of the Trade Union and Labor Relations Adjustment Act impose a duty not to receive wages from full-time officers and employers of the so-called trade union who engage in affairs of the trade union without providing labor of the president of the labor contract with the consent of the collective agreement or employer.

Article 33(1) of the Constitution of the Republic of Korea provides that "workers shall have the right to independent collective bargaining, collective bargaining, and collective action to improve working conditions." The three labor rights are fundamental rights under the Constitution by stipulating that "workers shall have the right to collective bargaining, collective bargaining, and collective action for the improvement of working conditions." This three labor rights are not civil or criminal liability for collective bargaining and collective action of workers, but are designed to ensure that workers, who are socially and economically heatly, are collectively opposed to employers, recover the same status as employers through collective bargaining and collective action, and realize labor-management autonomy that the State does not intervene. In this sense, three labor rights are fundamental rights with the nature of the right to life (social right) and our society is entitled to overcome social and economic inequality between the modern civil law and the labor and management, and substantial labor-management autonomy and labor conditions are not established. In addition, labor-management autonomy should not be respected even if it is established in accordance with Article 37(2) of the Constitution.

Article 24(2) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act prohibit the payment of full-time officer’s wages shall not infringe on the essential contents of the three labor rights, and if a result of infringement is brought about, it shall not be recognized as a violation of the Constitution. However, if it is interpreted that the payment of wages to the full-time officer of a trade union is prohibited without any condition pursuant to Articles 24(2) and 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, it shall not be deemed that the essential contents

First, as recognized by Article 24(1) of the Trade Union and Labor Relations Adjustment Act, the full-time officer of a trade union is a system necessary for the maintenance and improvement of working conditions and for the improvement of social and economic status, consult with an employer, handle grievances, and conduct industrial safety activities in the workplace that an employer must perform (i.e., occupational accidents regarding the performance of the full-time officer’s duties, retirement allowances are also paid, and the payment of wages is accepted without any particular reflection between labor and management, regardless of the legislation of the prohibition on the payment of full-time officer’s benefits). Unlike Seo-gu and Seo-gu, it is highly likely that the prohibition on the payment and receipt of wages for the full-time officer of a trade union at a small or medium-sized workplace, such as the company in this case, cannot have a full-time officer of a trade union, and the labor union’s three rights guaranteed to an employee may not be substantially guaranteed.

Second, due to the prohibition of paying the full-time officer's pay, the core principle of labor-management autonomy and group autonomy of the three-time officer is essentially damaged. If there is no provision prohibiting the payment of the full-time officer's pay, the issue of paying the full-time officer's pay was a matter that a trade union could freely choose by negotiating with the employer, which cannot be interfered with by the State, and the payment of the full-time officer's pay can only be prohibited if it constitutes an act of unfair labor which controls or interferes with the organization

Therefore, if the clause on the prohibition of paying the full-time officer's wages is interpreted as it is and interpreted uniformly in all labor-management relations, it is unconstitutional because it infringes on the essential contents of the three labor rights.

Meanwhile, as seen earlier, the full-time officer’s payment of wages may result in infringing on the essential contents of the three labor rights and losing the independence of the labor union by controlling or participating in the organization and operation of the labor union. Therefore, even without the provision prohibiting the full-time officer’s payment, the Trade Union and Labor Relations Adjustment Act prohibited the act of assisting the expenses of the labor union in the operation of the labor union under Article 81 subparag. 4, and interpreted that the full-time officer’s payment of wages constitutes one of the types of security guards. However, the interpretation of the act of assisting the full-time officer does not necessarily mean that all the expenses of the labor union constitute the control and intervention of the employer. As a result of the labor union’s acquisition of convenience for the activities of the labor union without the independence of the labor union, it does not constitute an unfair labor practice. Therefore, it is necessary for the employer to consider whether there is an act of assisting the full-time officer in negotiating the wages of the labor union and whether it constitutes an act of preventing the payment of the wages of the labor union individually through such negotiations.

In light of the above, the prohibition on the payment of full-time officer’s wages under Articles 24(2) and 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act shall be interpreted to be consistent with the Constitution only where a trade union loses autonomy and the payment of full-time officer’s wages can be interpreted to be controlled and opened by the employer. In addition, Articles 24(2) and 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act shall not apply to the payment of full-time officer’s wages which a trade union acquired as a result of negotiations and actions by a trade union without losing autonomy. In addition, the burden of proving that the trade union lost autonomy and constitutes the control and intervention of the employer is the person who asserts the application of the provision (on January 1, 2010, Article 24(4) and Article 24-2 of the Trade Union and Labor Relations Adjustment Act established by the amendment of the Trade Union and Labor Relations Adjustment Act shall be limited to cases where Article 24(2) of the Trade Union and Labor Relations Adjustment Act applies because the limit of full-time.

Therefore, in order to deem that the provision on full-time officer treatment in the collective agreement of this case is illegal in violation of Articles 24(2) and 81 subparag. 4 of the Trade Union Act, there is insufficient evidence to deem that the provision on full-time officer treatment in the collective agreement of this case constitutes an unlawful violation of Article 24(2) and Article 81 subparag. 4 of the Trade Union Act by comprehensively taking into account all the evidence submitted to the company of this case as a case where the Plaintiff Trade Union lost autonomy and interferes with the organization and operation of the Plaintiff Trade Union, and the Plaintiff Trade Union’s union constitutes such a case (it is insufficient to recognize the circumstance of the Defendant’s assertion that the Plaintiff Trade Union did not engage in strike for a few years, and the union members were reduced to 11 members of the branch after the relocation of the factory). Accordingly, the corrective order of this case,

On the other hand, the corrective order of this case, which was made with respect to the provision of full-time treatment of this case, is illegal in the following sense.

Article 24(2) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act shall not apply until June 30, 2010 (Article 8 of the Addenda to the Trade Union and Labor Relations Adjustment Act). Therefore, the provisions of the instant collective agreement concluded on June 29, 2010, to which these provisions are not applicable, are not contrary to the above provisions. The proviso to Article 3 of the Addenda to the above Act, even if the contents of the collective agreement violate Article 24 of the Act, it shall be deemed as effective until the expiration date of the pertinent collective agreement, and even if the provisions of Article 24 of the Trade Union and Labor Relations Adjustment Act were violated, it shall not be deemed as being effective until the expiration date of the pertinent collective agreement, since the provision of the full-time officer's provision of Article 24 of the Trade Union and Labor Relations Adjustment Act was not effective until the enforcement date of the Act (Article 24 subparag. 1 of the Labor Relations Adjustment Act, which was enforced).

D. With respect to the provision on treatment of non-exclusive workers, the defendant first issued a corrective order on the ground that the provision on treatment of non-exclusive workers violates Article 24(2) and Article 81 subparag. 4 of the Trade Union Act, and Article 24(2) of the Trade Union Act and Article 81 subparag. 4 of the same Act prohibit the full-time officer from paying wages to the full-time officer of the trade union, and do not stipulate that the provision on the payment of wages to the full-time officer of the trade union does not prohibit the full-time officer from paying wages to those who are not the full-time officer, such as a temporary full-time officer, the chairperson of the election management commission, and the candidate for the officer (as seen above, Articles 24(2) and 81 subparag. 4 of the Trade Union Act are highly likely to violate the essential contents of three rights, and thus strictly limit the provision on the payment of wages to the full-time officer of the Trade Union for the reason that Article 8 subparag. 2 of the Trade Union Act was unlawful. 4 of this case’s provision on treatment of the full-time officer.

As seen earlier, “an act of assisting operating expenses of a trade union” as referred to in Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act does not mean any act of assisting all operating expenses. As a result of a trade union’s acquisition by an employer without losing autonomy and acquiring convenience for its union activities through a simple negotiation, receiving operating expenses from an employer does not constitute an unfair labor practice. Therefore, in order to deem the provision on treatment of non-exclusive workers in this case as illegal in violation of Articles 24(2) and 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, the provision on treatment of non-exclusive workers in this case’s violation of Articles 24(2) and 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act does not constitute an unfair labor practice. As seen earlier, there is insufficient evidence to view that

Therefore, the instant corrective order, which was issued against the instant non-permanent officer treatment clause, is unlawful, and thus, it should also be revoked.

E. As to the provision on the provision on the provision on the provision on the provision on the provision of facilities of this case, the provision on the Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Trade Union’s Operation of Facilities under Article 81 subparag. 4 of the Trade Union Act is an illegal provision on the provision on the provision on the provision on the provision on the provision on the provision of facilities of this case’s Trade Union’s convenience. In order to view the provision on the provision on the provision of facilities of this case

Therefore, this part of the corrective order of this case against the provision of convenience in the facility of this case should also be revoked as it is unlawful.

6. Conclusion

Therefore, the part concerning the provision on the one-day negotiating party (Attachment 1 List No. 1) among the dispositions in this case is legitimate. Since the part concerning the qualification provision for the dismissed union members, the provision on the treatment of non-exclusive union members, the provision on the treatment of non-exclusive union members, and the provision on the provision on the provision of facilities convenience (Attachment 2 through 9) is unlawful, the plaintiff's claim in this case in this case is accepted within the scope of the above recognition, and the remaining claim is dismissed for reasons, and by applying Article 23 (2) of the Administrative Litigation Act, the effect of the disposition in this case shall be suspended ex officio until the judgment in this case becomes final and conclusive,