The meaning of "date determined pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act," which is the starting date of the period of autonomous decision on the representative of bargaining in Article 14-6 (1) of the Enforcement Decree

In light of Article 29-2(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), Articles 14-5, 14-6, 14-7, 14-8, and 14-9 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (hereinafter “Enforcement Decree”), the period during which all trade unions participating in the procedures for the simplification of bargaining windows voluntarily determine a representative bargaining trade union (hereinafter “period of voluntary determination of bargaining union”) means the period during which all trade unions voluntarily determine a representative bargaining trade union. Thus, the name and representative, number of union members, and the date of request for bargaining, which are the premise for participation in the procedures for the simplification of bargaining windows, need to be specified in all before the expiration of the period. In light of the provisions of the Trade Union Act and the Enforcement Decree of the Trade Union Act, “the date of determination or decision pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act”, which starts from the date of expiration of the period of voluntary announcement pursuant to Article 14-5 of the Enforcement Decree.

Article 29-2 (1) of the Trade Union and Labor Relations Adjustment Act; Articles 14-5, 14-6, 14-7, 14-8, and 14-9 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act;

National Metal Trade Union (Attorney Kim Sang-sung et al., Counsel for the defendant-appellant)

Bosh Co., Ltd. (LLC, Attorneys Lee Hong-hoon et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2013Na2076 decided January 21, 2014

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 29-2(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that where there are not less than two trade unions which have established or joined a single business or workplace, a trade union shall set a representative bargaining trade union and request negotiations: Provided, That where an employer agrees not to undergo the simplification of bargaining windows within a deadline for autonomous determination of a representative bargaining trade union (hereinafter “the period for autonomous determination of a representative bargaining trade union”), an individual bargaining may be conducted; and Article 14-6(1) of the Enforcement Decree of the Trade Union Act (hereinafter “Enforcement Decree”) provides that the period for autonomous determination of a representative bargaining, namely, the period for which an employer may consent to individual bargaining, shall be 14 days from the date of determination or determination pursuant to Article 14-5 of the Enforcement Decree of the Trade Union Act.

Meanwhile, the Trade Union Act and the Enforcement Decree of the Trade Union Act classify the procedures for the simplification of bargaining windows into the procedures for the determination of trade unions and the procedures for the determination of representative bargaining trade unions. Article 14-5 of the Enforcement Decree of the Trade Union Act provides that an employer's notification and public notification of a trade union requesting bargaining, an employer's objection to the trade union and a request for correction to the Labor Relations Commission as a procedure for the determination of a trade union requesting bargaining, and Articles 14-6 through 14-9 of the Enforcement Decree provide the procedures for the determination of a representative bargaining trade union in the order of the autonomous decision of a representative bargaining trade union among the trade unions determined

In addition to the contents of the Trade Union Act and the Enforcement Decree, since all trade unions which have participated in the procedures for the simplification of bargaining windows voluntarily set the representative bargaining trade union, the period of autonomous decision-making of the representative bargaining is required to be specified in all prior to the progress of the period, such as the name and representative, the number of union members, the date of request for bargaining, etc. of all trade unions which have participated in the procedures for the simplification of bargaining windows. In light of the Trade Union Act and the Enforcement Decree, which stipulate the procedures for the simplification of bargaining windows and the date of decision-making of the representative bargaining windows, which is the initial date of the period of autonomous decision-making of bargaining representatives, are interpreted to mean the date when the procedure for the confirmation of the trade union's request for bargaining pursuant to Article 14-5 of the Enforcement Decree is terminated, it is reasonable to deem that the date the period of public announcement expires if a trade union has not raised an objection to a public announcement pursuant to Article 14-5 (1) of the Enforcement Decree, and that the period of amendment expires if an employer has made an objection thereto.

2. According to the reasoning of the lower judgment and the record, the Defendant: (a) announced the public notice period pursuant to Article 14-5(1) of the Enforcement Decree on March 5, 2012 to March 12, 2012; (b) the Plaintiff and Nonparty Trade Union as a trade union requesting bargaining; (c) the Plaintiff and Nonparty Trade Union did not file an objection under Article 14-5(2) of the Enforcement Decree during the public notice period; and (d) Nonparty Trade Union demanded the Defendant to individually negotiate on March 21, 2012; and (c) the Defendant consented to the demand for individual bargaining with Nonparty Trade Union on March 23, 2012.

Examining these facts in light of the aforementioned legal principles and the statutory provisions, the initial date of the period of self-determination of the representative bargaining shall be March 12, 2012, which is the expiration date of the period of public notice given by March 5, 2012. Thus, the defendant's consent to individual bargaining against the non-party union shall be deemed valid from that time to March 23, 2012, which is the 14th day prior to the lapse of 14 days.

Nevertheless, on the grounds indicated in its reasoning, the lower court determined to the effect that the Defendant’s notice was made on March 5, 2012 as the initial date of the period of self-determination of the representative bargaining, and the Defendant’s individual bargaining agreement on the non-party union was not effective on March 23, 2012. In so doing, the lower court erred by misapprehending the legal doctrine on the initial date of the period of self-determination of the representative bargaining representative under Article 14-6(1) of the Enforcement Decree, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)