(영문) 대전지방법원 2019.6.26. 선고 2018구합103487 판결

A. The Plaintiff is an industrial trade union at a national level covering workers engaged in the metal industry and metal-related industries. The Plaintiff is a subordinate organization of the Category B B branch of the Trade Union, composed of the workers of the Company B.

B. On November 13, 2013 and November 13, 2011, B Co., Ltd. (hereinafter “instant trade union”) made a structural change to the AA trade union of 81 members of the instant company, which was established as the employees of the instant company, at a general assembly of union members (hereinafter “instant general assembly”) through the following process, at a general assembly of union members on December 12, 2017 (hereinafter “instant general assembly”).

1) On December 2, 2017, the Secretary C of the instant trade union publicly announced the schedule of the instant general assembly on D collective hosting held by 73 members, among 81 members, once more than once on December 7, 2017.

A person shall be appointed.

2) The above General Assembly delegated by G and explained that the Secretary F will take place in the capacity of president. The F will take place in the form of voting selecting one of the members present at the Secretariat in advance of ‘the conversion by industry', ‘the maintenance of corporate labor union', and ‘the first voting' (hereinafter referred to as ‘the second voting') during the transition by industry with a period of 'the first voting', and if the number of members present at each meeting is more than a majority of the transition by industry, the first voting was carried out, and as a result, the first voting was conducted on the grounds that the number of members present at the meeting exceeds a majority of the members who want to convert by industry, 35 votes by industry, 13 votes for the maintenance of corporate labor union, 14 votes by industry, 14 votes by industry with a period of 65 members present at each meeting, and 3 votes by reason that the number of members present at each meeting exceeded a majority of the members who desire to convert by industry.

3) In the second voting, 64 members of the union depart from the general meeting, and as a result, 43 votes of the conversion by mountain, 21 votes and 21 votes and F announced that the conversion by mountain was passed. The Defendant requested the instant trade union members of the instant trade union to make a decision on the corrective order on February 5, 2018 upon the instant trade union’s request for the corrective order on the said structural change resolution. On April 5, 2018, the Chungcheong Regional Labor Relations Commission approved the said request on the ground that the said resolution on a structural change violated Article 19 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Trade Union Act”) without undergoing lawful procedures for public announcement of convening a general meeting. In accordance with the above resolution, the Defendant issued the corrective order (hereinafter “instant disposition”) as follows on May 18, 2018.

1. Violation of the Acts and subordinate statutes: Violation of Article 19 (Procedures for Convocation)2 of the Trade Union and Labor Relations Adjustment Act: there is a defect in the procedures for convening a general meeting of a trade union.OB trade union only announced the title of the agenda to be deliberated and resolved at a general meeting on December 1, 2017 and December 7, 202 of the same year, without specifying the specific contents and procedures, and it announced the convocation of a general meeting without specifying the details and procedures thereof (hereinafter referred to as "grounds for Disposition 1"). In determining the agenda for organizational change, the phrase of the notice of convening a general meeting should be determined that the change in the form of organization would affect the first voting, and if it is intended to vote for the second voting for the change in the form of organization, the contents of the resolution on the agenda through a public announcement of convening a new general meeting in accordance with the Trade Union and Labor Relations Adjustment Act and the rules of a trade union.

Although it is reasonable to make a decision after clearly notifying the union members of the voting method on the agenda of such special opinion, it is the same as not giving the union members sufficient opportunity to attend the general meeting and discuss the same before the first voting (hereinafter referred to as "reasons for Disposition 2"). 3. If the demands for correction were to be made on December 12, 2017 by a trade union B (State) fails to comply with the convening procedure under Article 19 of the Trade Union and Labor Relations Adjustment Act, thereby making a decision on a structural change again in compliance with the above purport, and thereby, it is illegal to implement the structural change procedure again, and the result is deemed to be a shipment date prior to June 15, 2018. (However, if a structural change fails to comply with the requirement for correction, it shall be deemed to have been notified to our authorities within the deadline for correction, it shall be deemed to have implemented the order for correction). If the order for correction is not implemented, it shall be deemed to have been subject to a fine not exceeding KRW 53 million under the Trade Union and Labor Relations Adjustment Act.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 8, 9, Eul evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds as follows.

1) Members of the instant trade union had sufficiently discussed the instant structural change before the instant general assembly was held. However, even if only the title of the agenda to be deliberated and resolved at the time of the public notice on the convocation of the general assembly was indicated, it cannot be said that the specific contents and procedures were not clearly stated. Moreover, it cannot be said that the public notice on the convocation of the general assembly should state the specific procedures for handling the agenda (the second structural change voting after gathering the first opinion

2) Since the effect of the “change in the form of organization” bill in the notice of convening a general assembly is limited to the second voting, it cannot be said that prior to the second voting, the notice of convening a new general assembly should be given.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) The additional modification of the reasons for the disposition

A) In an appeal litigation seeking the cancellation of an administrative disposition, the defendant asserts that the disposition of this case is legitimate, considering the following: ① the notice of convening the general assembly of this case was omitted from some members of the trade union of this case including K; ② the change in the organization form of the above general assembly is effective in the second voting; ② the number of members present at the time of the second voting does not meet the quorum (2/3 or more of the members present at the majority of the members present at the meeting and the two-thirds or more of the members present at the meeting) (hereinafter referred to as the "additional, the above reasons are legitimate). In an appeal litigation seeking the cancellation of an administrative disposition, the disposition of this case can add or change other reasons only to the extent that it is deemed identical with the original reasons based on the disposition, and the existence or absence of the basic factual identity in this case is identical with the basic facts in that it is based on the previous specific facts before the disposition is legally assessed, and even if it is not identical with the original reasons for 20th of the disposition, it is not identical with the original reasons for 10th of the disposition.

2) As to the ground for disposition No. 1

In full view of all the evidence mentioned above and the following facts and circumstances revealed by adding the whole purport of pleadings to each statement in Gap evidence Nos. 3 through 6, it cannot be said that a notice of convening a general meeting of this case was made without specifying specific contents and procedures, or that voting was carried out through illegal procedures not stipulated in the union rules. Therefore, the ground for Disposition No. 1 is not acknowledged as a justifiable ground for disposition.

① Article 19 of the Trade Union Act provides that "the general meeting or the board of representatives shall publicly announce the matters to be referred to the meeting at least seven days prior to the date of the meeting and convene it in the manner prescribed by the regulations." Article 11(4) of the Rules of the Trade Union of this case provides that "the chairperson shall give public notice of the matters to be referred to the meeting at least seven days prior to the date of the meeting, and the matters to be referred to the meeting shall be referred to the meeting and the date, time, and place of the meeting." This aims to ensure that members can prepare in advance for whether they attend the meeting or for the matters to be resolved by the general meeting, and the matters to be referred

② It appears that the instant trade union had been discussed on a long-term structural change through various routes (in particular, on December 7, 2017, immediately before the instant general meeting, and on December 9, 2017, various opinions were posted by the union members on structural change at the freedom bulletin board of Indiannet Co., Ltd., B), and the union members seem to have been aware of the progress and situation of structural change. Accordingly, it appears to have been written as an agenda at the time of the instant public notice on the convocation of the general meeting at the time of the instant public notice on the convocation of the general meeting, to have been written to the extent that the union members are sufficiently aware of what the agenda items are (whether to participate in the said general meeting or that there was an obstacle to preparing for arguments and arguments on structural change). In addition, as to structural change, it appears that there were sufficient explanations and answers by the union members with respect to it during a considerable period of time prior to the said resolution, and that the union members could not exercise the right of consultation and resolution.

③ 나아가 ㉠ 위와 같이 F의 조직형태 변경에 관한 설명과 그에 대한 조합원들의 문답이 있었던 점, ㉡ 1차 투표 결과 과반수 이상의 찬성이 있는 경우 2차 투표를 진행하는 방식에 관하여 사전에 아무런 이의가 없었던 점, ㉢ 1차 투표는 조직형태 변경에 관한 종국적인 투표에 앞서 조합원들의 의사를 수렴하기 위한 것임을 조합원들이 인식하고 있었던 것으로 보이는 점, ㉣ 노동조합법 및 B주식회사 노동조합 규약 등에 위와 같은 방식의 투표를 금지하는 규정이 존재하지 않는 점 등에 비추어 보면, 위 총회에서 1차 투표를 거쳐 2차 투표를 진행한 것이 위 노동조합 규약에서 정하지 아니한 절차의 투표로서 위법한 것이라고 볼 수 없고, 위와 같은 절차로 진행될 것이라는 점을 위 총회 소집 공고 당시에 명시하였어야 한다고 할 수도 없다.

3) As to the ground for 2 disposition

As seen earlier, in full view of the following: (a) the instant trade union has been undergoing discussions on the structural change for a long time prior to the instant general assembly; (b) appears to have undergone sufficient gathering of opinions from the said general assembly; (c) the first voting was conducted to gather consensus from its members with respect to structural change; (d) a final resolution on structural change appears to have been secondary voting; and (e) there is no ground to interpret the “change in the form of organization” agenda as at the time of the public announcement of the convocation of the said general assembly to have effect only on the first voting and to have effect on the second voting; and (e) there is no ground to interpret that the “change in the form of organization” agenda as at the time of the public announcement of the convocation of the said general assembly’s general assembly’s general assembly’s general assembly’s general assembly’s general assembly’s general assembly’s general assembly’s general assembly’s general assembly’s general assembly

4) Sub-committee

Ultimately, the instant disposition is not recognized as all the grounds for the disposition, and thus should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.