(영문) 대구고등법원 2013.10.18. 선고 2012누2918 판결

3. The part arising between the Plaintiff and the Defendant out of the total litigation cost is borne by the Defendant, while the part arising from the participation by the Defendant is borne by the Intervenor.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On August 24, 2005, workers engaged in loading and unloading at a new port only at the port of port establish the Plaintiff, a regional trade union, and received a certificate of report on the establishment of a trade union from the port of port on May 201, 201, 4, and 5, and the number of union members is 110.

The supplementary intervenor for the defendant (hereinafter referred to as the "participating") is a regional unit trade union comprised of workers engaged in loading and unloading at each port (port of port, racing, field, sound, shill) in the border, including a new port only in Young-gu.

B. On June 17, 201, pursuant to Article 33(4) of the Employment Security Act, the Plaintiff issued a new application to the domestic labor supply business (hereinafter “instant application”) to the Defendant on the following grounds: “The trade union of the type of business, the month of the plan for the supply of workers, the 110 annually, the permanent port of the business area, the Hanjin-jin Co., Ltd., the number of business entities subject to the supply, and two other companies (hereinafter “instant application”).

C. On July 6, 2011, the Defendant rendered a disposition to refuse the instant application on the ground that “In the situation where the number of the members of the existing intervenor becomes more than 1,071 and there is no idle human resources, there is concern about the excessive supply of human resources when permitting the instant application, and it is anticipated that physical collision, decline in working conditions, and difficulties in normal operation of port logistics will occur between the trade union to secure the right to load and unload the instant application (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 3 (including virtual numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The allegation that the instant disposition constitutes a binding act or a binding discretionary act

The new permission disposition for domestic labor supply business is a binding act that must be permitted as a matter of course unless the permission-granting authority falls under the grounds for restrictions stipulated in relevant Acts and subordinate statutes, such as the Employment Security Act, and it is unlawful to deny the application of this case even though the Defendant did not fall under any grounds for restrictions under relevant Acts and subordinate statutes, such as the Employment Security Act.

(2) The assertion of deviation and abuse of discretionary power

Even if a new permission disposition of domestic labor supply business is a discretionary act, Articles 3 and 4 of the collective agreement between the Korean Port Trade Union Federation and the Korean Port Logistics Association to which the intervenor belongs violates multiple labor unions and the Korean Port Logistics Association to which the loading and unloading company belongs (hereinafter referred to as the “Trade Union Act”) and Article 3 and 4 of the collective agreement are null and void since it infringes on the workers’ right to organize under the Constitution, and the total port area and daily water flow of new ports increases by the implementation of the Port Development Corporation, etc. In addition, even if the plaintiff's business area and the intervenor's business area overlap with the plaintiff's business area, the economic impact on the intervenor's union members is insufficient, and thus, it does not lead to an excessive supply of port human resources to the defendant's new port area. In light of the principle of equity, the defendant's excessive disposition is to achieve the purpose of equity in light of the fact that there is a competition system between the labor unions supplying port human resources upon the application of this case.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(1) The Korea Port Trade Union Federation (hereinafter referred to as the “Korea Port Union”) is an associated organization of unit trade unions consisting of unit trade unions consisting of workers engaged in loading and unloading in respective fields, such as ports, railroads, and land, and the Korea Harbor Transport Association (hereinafter referred to as the “harbor Transport Association”) is an association of employers consisting of stevedorings who have registered the port loading and unloading business under the Harbor Transport Business Act.

(2) From around June 1981, the Aviation Development Association concluded a collective agreement with the Harbor Transport Association. The contents of the collective agreement in 2010 concluded on June 1, 2010 (hereinafter “instant collective agreement”) are as follows.

Article 2(Scope and Scope of Application) This Convention shall apply to union members of port or other place of business to port and port and port and port unions or port unions.Article 3(Mediation Group) represents the members of the Association and recognizes that the port and port unions represent unit union members.Article 4 (Employment Rights) ① Trade and Labor Relations Association's right to employ workers shall hold the right to employ members of the Harbor Transport Association: Provided, That this shall not apply to workers supplied by the port and port unions. In the case of duties of the port and port unions' right to work, no opportunity for employment shall be provided except the unit trade union members of the port and port union.Article 55 (Effective Period) The effective period of this Convention shall be from June 1, 201 to May 31, 2012.

(3) Workers belonging to each port across the country are engaged in loading and unloading work. Since a trade union that has obtained permission for a labor supply business under the Employment Security Act only one harbor for each port, the licensed trade union operated the exclusive cargo supply business to exclusively load and unload workers. The intervenor was affiliated with the port of port of port of port of port of port of port of port of port of port of port of port of port of port of port of the Republic of Korea and operated the exclusive cargo supply business to exclusively load and unload workers.

(4) From May 1, 201 to April 30, 2014, the Intervenor obtained a permit for the renewal of the employee supply business from the Defendant using the permitted area as the port, racing, field of transportation, etc. From May 1, 201 to April 30, 201. The total number of the Intervenor’s union members is 1,050 as of November 12, 201, and more specifically consisting of 13 union members, 12 union members, 24 union members, 100 union members, 90 union members, and 901 union members in the port area. According to the Intervenor’s rules and Article 6 and Article 14 of the Organizationary Rule of the Intervenor, union members are employees engaged in unloading, transportation, etc. in the port area in North, etc., who consent to the rules of the Intervenor, etc. and submitted the admission documents through the prescribed procedures, but are not eligible for disciplinary action against the union members or those who failed to pass the physical examination at the union.

(5) Meanwhile, on July 22, 2011, the Port and Transport Trade Union organized by the participants who withdraw from the Intervenor Union applied for a new domestic labor supply business permit to the Defendant on the basis of 11 copies, such as the port and transport trade union, the month of the plan for the supply of workers, 42 annually, the distribution of the business area, and the transportation of the business entities subject to the supply, but the Defendant rejected the application against the Port and Transport Trade Union on August 23, 201.

On October 7, 2011, the Port Trade Union filed a lawsuit seeking revocation of a new application for permission for domestic labor supply business against the Defendant on July 4, 2012 (Seoul District Court 201Guhap3847). The Defendant appealed against the first instance court and was sentenced to a judgment dismissing the Defendant’s appeal on February 8, 2013 (Seoul High Court 2012-1700). The judgment dismissing the appeal on June 27, 2013 (Supreme Court 2013Du6152) was pronounced (Supreme Court 2013Du6152).

(6) According to the shipping and port logistics information system of the Ministry of Land, Transport and Maritime Affairs, the water capacity in the port area is as follows from 2002 to 2011. The remaining years except from 2005 and 2009 have increased compared to the previous year, and the overall increase has increased.

A person shall be appointed.

(7) On August 8, 2009, only the Young Port opened a new port at a port of call (a wharf, a cargo wharf, etc.), a port of call (a port of call) and a port of call (a port of call 1 to 8 ports).

According to the third national basic harbor plan of the Ministry of Land, Transport and Maritime Affairs announced around July 201 (No. 2011-402) by the Ministry of Land, Transport and Maritime Affairs (No. 201-402), only the territory of Japan has been implemented since July 201 to July 201, development works such as the external main facilities (a fishing port breakwater, strike, etc.), landing facilities (referring to the weight tonnage of cargo for 30,00 WT and DWT), three lines x three lines, cement wharf (5,00 WT X X x 1st x x 1st x 1st x 3,000), sand wharf (3,00 WT X x1st x x 2nd x2nd ), and around July 202, it is anticipated that the total weight of water is expected to be worked including 125,195,1595 tons and 195 tons of general water.

(8) A cement, miscellaneous, sand, container, etc. among them, cement and sand have been disposed of as a result of the closure of the oil tank into the redevelopment of a harbor among the port ports, and miscellaneous is expected to be converted into the container wharf on July 2015. Moreover, the construction project is being performed from around July 2011 to around July 2013. Meanwhile, Psco Co., Ltd is scheduled to transfer approximately KRW 180,000 to the new port (clocks, etc.) which was disposed of in the new port from September 2013 to the new port (clocks, etc.).

The water dynamics from 201 to 2011 of the old ports, and the loading and unloading capacity as of 2011 of the old ports are as follows (see each inquiry results with respect to the court of the first instance and the chief of the regional maritime port and port office of the court of the first instance).

○ General cargo unit (unit: ton)

A person shall be appointed.

Container Cargo (unit: TEU*)

A person shall be appointed.

*TEU: 20 feet container as the weak as the "tring-fot Equit" is the unit in which 20 feet container is three units.

In addition, the water volume is 2012 new ports, 830,319 tons of ordinary cargo and 147,088 TEU of container cargo.

(9) On-the-job loading and unloading at a new port is currently conducted by the members of the final liaison office to which the Intervenor belongs, and the above final liaison office is also in charge of ports other than the new port. The average monthly ordinary wages of port workers from 2008 to 2011 are as follows. The Intervenor’s members are within five higher nationwide standards during that period.

A person shall be appointed.

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 7 through 10, 15, Eul evidence Nos. 2, 3, 28, 29, and 30, the fact inquiry results on the Korea Port Logistics Association, which is an incorporated association of the court of first instance, the fact inquiry results on the Korea Port Logistics Association, the fact inquiry results on the Korea Port Logistics Association, which is an incorporated association of the court of first instance, the fact inquiry results on Spanco on September 10, 2013, and the purport of the whole pleadings.

D. Determination as to the assertion that the instant disposition constitutes a binding act or a binding discretionary act

According to Article 2 subparag. 7, Article 33 subparag. 1, (2), and (3) subparag. 1, and Article 44 of the Employment Security Act and Article 37 subparag. 4 of the Enforcement Decree of the same Act, a person who intends to operate a labor supply business for having another person use a worker according to a supply contract and engage in a labor supply business shall obtain permission. In the case of a domestic labor supply business, a person who intends to operate a labor supply business after the expiry of the term of validity shall obtain permission for extension. According to Article 33 subparag. 1, 4 of the Employment Security Act and Article 33(1) of the Enforcement Decree of the Employment Security Act, a person who intends to operate a labor supply business shall submit an application stating a plan for the supply of workers, the number of companies subject to the permission, etc. In addition, if he/she intends to modify important matters prescribed by Ordinance of the Ministry of Employment and Labor, such as the supply type, business area, etc. among the permitted matters, the head of a labor supply business may grant permission for a domestic labor supply business to an employment security office.

According to the above provisions, where an application for permission for domestic labor supply business fails to meet the requirements for permission for labor supply business, such as the scope of labor union’s business, the pertinent region and occupation, and the maintenance of employment stability, the administrative agency may refuse to grant permission for labor supply business for this reason. In such a case, the prohibition requirements are prescribed as indefinite concepts, and the determination of whether to grant permission for labor supply business belongs to the discretionary action of

Therefore, since domestic labor supply business permission for the instant application constitutes discretionary act, the Plaintiff’s assertion against this is without merit.

E. Determination on the assertion of deviation or abuse of discretionary authority

(1) Article 3 of the collective agreement of this case provides that "harbor transport" association shall represent its members and recognize that it is the only negotiation body representing unit trade union members."

According to Article 5 of the Trade Union Act (amended by Act No. 9930, Jan. 1, 2010), workers may freely organize or join multiple trade unions in one business or workplace, but Article 7 (1) of the Addenda of the Trade Union Act (amended by Act No. 9930, Jan. 1, 2010) provides that "where a trade union is organized in one business or workplace, it shall not be established until June 30, 201, a new trade union, the same as the trade union, shall not be established until June 30, 201." Thus, a new trade union, the same as an existing trade union, may not be established until June 30, 201, and a new trade union, the same as an existing trade union, may be established from July 1, 2011.

The purport of Article 7(1) of the Addenda is to temporarily prohibit the establishment of multiple labor unions with separate negotiating rights while sharing the organization subject to the organization in order to prevent confusion in collective bargaining that may arise from the dualization of the bargaining counter if the establishment of multiple labor unions is immediately permitted. Although multiple labor unions prohibited by Article 7(1) of the Addenda are already organized at a business or workplace of a company-level trade union or a unit trade union of an industry, occupation, and region that can be seen as equivalent thereto, the number of labor unions prohibited by Article 7(1) of the Addenda shall be limited to the branch or sub-branch of a company-level trade union newly established or a unit trade union of an industry, occupation, and region-level trade union equivalent thereto, and the existing trade union is a unit trade union of an industry, occupation, and region-level trade union equivalent thereto, and its branch or sub-branch may be established without any restriction under the above provision if the existing trade union is an existing company-level trade union.

Unless a unit trade union is a separate trade union and its branch or sub-branch is deemed equivalent to a company-level trade union, the above provision does not violate the above provision (see, e.g., Supreme Court Decisions 2001Du5361, Jul. 26, 2002; 2006Du15400, Dec. 24, 2008).

Do. He returned to the instant case and the Plaintiff was a regional trade union consisting of workers engaged in cargo loading and unloading at the Young Port only, while the intervenor is a regional trade union consisting of workers engaged in cargo loading and unloading at each port north of the border including the port area. As such, the Plaintiff’s organization differs from the Intervenor and the Plaintiff’s organization, and the Plaintiff’s union or the Intervenor’s union may not be a company-level trade union or a trade union equivalent thereto as a regional trade union. Therefore, even under the former Trade Union Act (amended by Act No. 9930, Jan. 1, 2010), the Plaintiff may be established before July 1, 201. As seen earlier, the Plaintiff was established on August 24, 2005. Thus, it is evident that the Plaintiff’s establishment does not violate Article 7(1) of the Addenda of the Trade Union Act (Act No. 9930, Jan. 1, 2010).

In addition, according to Article 19(1)4 and (4) of the Monopoly Regulation and Fair Trade Act (hereinafter “Mono Regulation Act”), a worker business entity is prohibited from having another business entity engage in any act restricting transaction area or transaction partner by contract, agreement, resolution, or any other means, and a contract between business entities which promises to engage in such act is null and void. As such, the unit trade union belonging to the port trade union cannot restrict a business entity engaging in a labor supply business from entering into a specific labor supply contract with other labor supply business entities for members belonging to the port trade association. Nevertheless, Article 3 of the collective agreement of this case restricts a harbor transport business association or a member company belonging to the association from entering into a specific labor supply contract between the harbor transport business entity and the port trade union under the agreement that the port trade union is the only negotiating party representing labor and management. Thus, Article 19(1)4 and (4) of the Monopoly Regulation and Fair Trade Act is null and void as it violates Article 19(1)4 of the Monopoly Regulation Act.

(2) The purport of Article 4 of the instant collective agreement

As seen earlier, Article 4 (1) of the collective agreement of this case provides that the right of employment of workers for commercial and daily use shall be held by the members of the Harbor Transport Association: Provided, That this shall not apply to workers supplied by the port unions, but the same shall not apply to workers supplied by the port unions, and Article 4 (2) of the collective agreement of this case provides that "no opportunity for employment shall be provided except for the unit trade union members of the port unions of the port unions."

As to this case, the proviso of Article 4(1) of the collective agreement of this case purports that a member of the Korea Transport Association cannot directly employ workers supplied by the Korea Transport Association. Thus, a member of the Korea Transport Association does not prohibit a member of the Korea Transport Association from employing workers who are not members of a unit trade union belonging to the Korea Transport Association. (2) Under Article 19(1)4 and (4) of the Monopoly Regulation and Fair Trade Act, a worker company is prohibited from allowing other business entities to engage in any act restricting trading partners through a contract, resolution, or any other method; (3) as such, a unit trade union belonging to the Korea Transport Association cannot restrict a member of the Korea Transport Association from concluding a specific labor supply contract with another labor supply business entity; and (4) as such, Article 4(2) of the collective agreement of this case provides that a member of the Korea Transport Association is not a member of the Korea Transport Association, but a member of the Korea Transport Association, which is not a member of the Korea Transport Association affiliated with the Korea Transport Association.

(3) As seen earlier, Article 3 of the collective agreement of this case is null and void, and even according to Article 4 of the collective agreement of this case, a member of the Harbor Transport Association does not necessarily have the duty to conclude a contract for workers supply with the unit trade union belonging to the port trade union of the port trade union, and thus, a member of the port trade union may conclude a labor supply contract with the Plaintiff, not with the port trade union belonging to the port trade union of the port trade union of this case. In full view of the evidence as seen earlier and the aforementioned facts recognized and the purport of the entire arguments and the following circumstances recognized, the disposition of this case is in violation of the law that excessively limits the plaintiff's private interests rather than the public interest that

Therefore, this part of the plaintiff's assertion is justified.

(A) 12.5% of the water capacity (i.e., the water capacity of 464,729 tons/Loading capacity of 3,728,00 tons X 100 tons, excluding container cargo) compared to the loading capacity of 201 in Young Man-day (hereinafter “YY”) is likely to be transferred to 180,000 tons of the water capacity of 464,729 tons/Loading capacity of 3,728,00 tons and container cargo of 3 ports around September 2013 and then the 180,00 tons of the water capacity of Poco entrusted to Poco (re products, such as Coil, etc.) is likely to be transferred to 3 ports of Po

However, after opening at the port around August 2009, the volume of the ordinary cargo on August 201, 201 is about 8 times the volume of the water in 2010 on the basis of the ordinary cargo. The volume of the water in 2012 increased by approximately 1.78 times the volume of the water in 2011 (if the container is included, the volume of the water in 201) and about 180,000 tons of the volume to be transferred to 3 parts of the new port of port of call, even if considering the volume to be transferred to 650,319 tons (=830,319 tons - 180,00 tons) and thereafter, it seems that the volume of the ordinary cargo in 2012 reaches about 650,319 tons, but it will increase more than the volume of the water in 2013.

B. On 2011, the loading and unloading capacity of the new port of Young Man is about 4.3% of the total loading and unloading capacity of the port area (i.e., about 3,728,00 tons/86,649,000 tons X 100 tons of container cargo). On 2011, the water operation capacity of the new port of Young Man is about 0.73% of the total loading capacity of the port area (i.e., about 464,729 tons/63,381,50 tons x 100, 100 square meters x 2012. However, according to the 3rd loading plan publicly notified by the Ministry of Land, Transport and Maritime Affairs, the water operation capacity of the general cargo is expected to increase by approximately 1.78 times more than the total loading capacity of the 2011, and it is expected that the 3rd loading and unloading capacity of the new port of Young Mann 2012.

(C) The intervenor supplied a total of 157,58 workers (average 31,517 workers per month) within the business area from January 201 to May 201. Based on the above, the defendant analyzed that the intervenor's employment of 1,050 workers per day (=31,517 workers per day: 30 days) and there are 21 workers compared to the number of the intervenor's union members (=1,071 - 1,050 workers). On December 201, the defendant determined that the demand for the supply of workers is excessive in the supply of human resources by analyzing that there are 1,071 idle human resources (=1,071 workers - 1,050 workers). On December 201, when two general cargo working within the new port are expanded, the demand for the supply of workers was increased by an average of 800 workers per day (average of 40 days per day, average of 20 days per day) and the average number of new cargo workers during 201,200,0000 new employees per day.

However, the monthly average working days for each intervenor is calculated as 29.4 (the monthly average working days for each intervenor shall not exceed 20 days from 208 to 20.20 days). However, the intervenor asserted that the monthly working days for each intervenor shall not exceed 17.43 to 20.21, and that the monthly average working days for each intervenor shall not exceed 20 days from 2008 to 20.4, the monthly average working days for each intervenor shall not be considered as 20 days. However, in light of the above fact that the intervenor's report submitted to the head of the Port Office, the monthly ordinary wages for the intervenor's members shall be considered as 5th day from 208 to 2011, it is difficult to believe that the defendant's average working days for each intervenor shall be 13 full-time workers, 12, 24, 109, 109, 240, 197, 300,000 new working days for each intervenor.

D. The Defendant asserts that the Plaintiff’s application of this case may cause excessive supply of harbor workers by filling about 10% of the number of union members (1,050) of the Intervenors in a small-scale business area compared to the Intervenor’s business area. However, the purpose of the Employment Security Act is to promote the employment security of workers and contribute to balanced development of the national economy by providing labor supply business in cooperation with the Government and the private sector (Article 1). The purport of the above provision is to prevent infringement of the interests of the Plaintiff’s employees by participating in the Plaintiff’s employment and by providing the Plaintiff’s new labor supply business for reasons that the Plaintiff’s new labor supply business may not be permitted by taking into account the fact that the Plaintiff’s new labor supply business is not permitted by the Plaintiff’s new labor supply business entity for reasons that the Plaintiff’s new labor supply business entity may not be permitted by taking into account the fact that the Plaintiff’s new labor supply business entity and the Intervenor’s new labor supply business entity may not be permitted by the Plaintiff’s new labor supply business entity.

Since there is a possibility of excessive human resources supply, it is against the principle of equity to prevent the excessive restriction.

E) On the basis of the loading and unloading capacity on January 201, 201, the number of participants who were engaged in loading and unloading work at a new port is 46 persons (i.e., the total number of intervenors 1,050 x total number of intervenors 3,728,00 x zero-day loading and unloading capacity of 3,728,00 x one-day loading and unloading capacity of 86,649,00 x one point in the port area out of the loading and unloading capacity of 100 x one-day loading and unloading capacity of 86,673,540 x one-month average monthly ordinary wage of 20,673,540 x 46 x 20,000 x 46,000 x 56,000 x 1666,000 x 466,000 x 1666,000 x 1666,064,0

① However, the mere fact that the monthly average amount of ordinary wages that the Plaintiff’s members would face are somewhat small when applying for this case is permitted can not be allowed in light of the above legislative intent of the Employment Security Act. ② Moreover, the participant association may considerably supplement the amount of wage reduction by adjusting and placing the worker into a harbor other than the new port only through the participant association, and ③ the participant calculates individual wages by dividing daily total wages generated in order to prevent the difference of wages by the worker according to the workplace where the worker worked at work and the unit price of the handled cargo, etc. in principle, into the number of registered employees (excluding those unable to mobilization of work and absence from work) on the day. In light of the loading capacity and unloading volume of the new port, it seems that there is a significant decrease in individual wages to be actually paid by the participant's union members even if the Plaintiff’s union members provide labor in the new port only once, in light of the fact that the worker actually worked at work.

(f) In addition, ① the Special Act on Assistance to the Reorganization of Harbor Manpower Supply Systems (hereinafter “Special Act on Assistance to Port Manpower”) is amended in principle to convert port manpower supply systems into port and transport business entities, etc. directly and continuously employ port and transport union members from the method of supplying port and transport business entities, etc. to port and transport business entities, and the government grants subsidies for expenses incurred in the reorganization. In the event of the reorganization of port manpower supply systems, the permission for port and transport business becomes invalid within the scope of the reorganization. ② In the event of the reorganization of port manpower supply systems, the transition of the supply system under the Special Act on Port and Support, the purpose of legislation should be respected. ③ Even if a port and transport business entity grants additional permission to the port and transport business entity in which the port and transport trade union exists, it can be said that the Plaintiff and the Intervenor’s exclusive supply system can not be seen as being affected by the conflict and side effects of the existing port and transport business entity’s exclusive supply system, ④ It can be said that the Plaintiff and the Intervenor’s exclusive supply contract should not be concluded with the permitting authority for cargo supply.

In addition, the working conditions of workers cannot be necessarily lowered on the ground that the application of this case is permitted, and if the application of this case is permitted, it can prevent infringement of workers' rights and interests due to the monopoly of labor supply by the Intervenor Union.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted due to its reasons, and since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted, and the plaintiff's claim of this case seeking cancellation of the disposition of this case shall be accepted, and it is so decided as per Disposition.