Whether an employer’s act of assisting the operating expenses of a trade union conducted periodically or regularly beyond the acts prescribed in the proviso of Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act constitutes an unfair labor practice prohibited under the main sentence of the same subparagraph (affirmative), and whether operating expenses vary solely on the ground that the employer’s act of assisting the union was a result of active demand or strike

Comprehensively taking account of the legislative purport and contents of Article 2 subparag. 4, Article 24(2) and (4), and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an act of assistance to the operating expenses of a trade union conducted periodically or periodically by deviating from an act prescribed in the proviso of Article 81 subparag. 4 of the Trade Union Act is deemed as an unfair labor act prohibited under the main sentence of Article 81 subparag. 4 of the Trade Union Act, which is likely to lose the independence of a trade union as well as an act of assistance to the full-time officer of a trade union. Although the operational expenses of a trade union have been caused by a trade union’s active demand or a

Subparagraph 4 of Article 2 of the Trade Union and Labor Relations Adjustment Act (Article 2, Article 24(2) and (4), and Article 81 subparag. 4

National Plant Construction Workers' Union (Attorney Jeon Young-young, Counsel for defendant-appellant)

Head of the Daegu Regional Employment and Labor Office Port Office

Daegu High Court Decision 2011Nu2768 decided May 4, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 81 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) prohibits “the act of controlling or participating in the organization or operation of a trade union by an employee, and the act of providing wages to the full-time officer of a trade union or assisting the operation of a trade union” under the proviso of Article 81 of the Trade Union and Labor Relations Adjustment Act that prohibits an unfair labor practice. However, in the proviso of the proviso, “the act of allowing an employer to engage in the activities under Article 24(4) during working hours, the act of allowing an employee to do so, the act of contributing funds to the employee’s welfare fund or for the prevention

The legislative purpose of the above provision prohibiting the employer from subsidizing the operating expenses of the trade union (hereinafter referred to as "operating expenses") is to prevent trade unions from depending on economic dependence on, or melting with, the employer and ensure the independence of the trade union.

However, Article 2 subparag. 4 of the Trade Union Act provides that a trade union refers to an organization or associated organization organized by workers as its principal agent for the purpose of maintaining and improving the working conditions and promoting the improvement of workers’ economic and social status,” and that Item (b) does not regard “where the principal part of the expenses is supported by the employer” as a trade union. In light of this, the act of a trade union receiving subsidies from the employer may be deemed to be likely to undermine the autonomy of the trade union.

In addition, the main text of Article 81 subparag. 4 of the Trade Union Act, which is interpreted as one of the former act of subsidizing operating expenses, prohibits the act of subsidizing wages to the full-time officer of a trade union (hereinafter “full-time officer of a trade union”). Meanwhile, even a full-time officer of a trade union may engage in the work of consultation, negotiation, etc. with the employer without loss of wages to the extent that it does not exceed the exemption limit of working hours pursuant to Article 24(4) of the Trade Union Act, but it is prohibited from receiving any benefits from the employer during the full-time period pursuant to Article 24(2) of the Trade Union Act, and the proviso and proviso to Article 81 subparag. 4 of the Trade Union Act reflects this, it is interpreted that the act of subsidizing a full-time officer of a trade union (hereinafter “full-time officer of a trade union”) constitutes an unfair labor act in itself without any need to decide whether the act of subsidizing a full-time employee of a trade union is likely to otherwise undermine the independence of the trade union. Therefore, it can be interpreted equally as in cases where the act of subsidizing.

In addition, the proviso of Article 81 subparagraph 4 of the Trade Union Act allows only the case where “the contribution to funds for the purposes of welfare and the prevention, relief, etc. of re-payment to workers and the provision of a trade union office in a minimum size” is exceptionally permitted. Thus, in light of the legislative purpose, etc. of the Trade Union Act that has exceptions, any act that can be assessed as being included in cases ordinarily provided for in the proviso of the above-mentioned proviso or as having the same nature that can be presented, may be allowed, but any act that deviates from such exceptions is prohibited

In full view of the legislative intent and contents of the above provisions related to the Trade Union Act, it is interpreted that the act of subsidizing operating expenses regularly and fixed by deviating from the act stipulated in the proviso of Article 81 subparag. 4 of the Trade Union Act is an unfair labor practice prohibited under the main sentence of Article 81 subparag. 4 of the Trade Union Act, as it is likely to lose the independence of a trade union as well as the act of subsidizing wages to a full-time employee of a trade union. Although the operating expenses are the result of a trade union’s active demand or s

2. On the grounds indicated in its reasoning, the lower court determined that the instant provision on administrative expense provision of the instant collective agreement constitutes unfair labor practice under Article 81 subparag. 4 of the Trade Union Act, on the ground that the trade union’s provision on administrative expense provision of the instant collective agreement provides that a trade union shall receive every month money exceeding the minimum amount of supplies and facilities, such as books, chairs, and electric facilities, which the trade union should normally be kept with the employer, and thus, it constitutes unfair labor practice under the main sentence of Article 81 subparag. 4 of the Trade Union Act, because it is difficult to deem that there is no significant risk of infringing the autonomy of the trade union. On the other hand, the Plaintiff’s assertion that the corrective order was unlawful since the provision on administrative expense provision

Examining the reasoning of the lower judgment in light of the evidence duly admitted, although part of the lower judgment’s judgment contains some inappropriate parts, the instant provision on administrative expense is deemed to go beyond the act stipulated in the proviso of Article 81 subparag. 4 of the Trade Union Act, and the lower court’s conclusion rejecting the Plaintiff’s assertion disputing the legality of the corrective order is consistent with the aforementioned legal doctrine. Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, and by misapprehending the legal doctrine on the act of operating expense which is prohibited as unfair labor

Unlike this case, the Supreme Court precedents cited in the grounds of appeal are not appropriate since Article 24 and Article 81 subparag. 4 of the Trade Union Act are related to the case before the amendment as above.

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

Justices Kim Shin (Presiding Justice)