In a case where Gap port and transport union established to conduct a labor supply business for harbor transport business, sought education and training for harbor workers from the Korea Port Training Institute established for the purpose of providing education and training for harbor transport business operators or harbor transport-related business operators, the case holding that Gap union has the right to request education and training for harbor workers from the members of the Korea Port Training Institute, and the Korea Port Training Institute has the duty to conduct the education and training for harbor workers from the members of the Gap union.

In a case where Party A’s trade union established to engage in a labor supply business for harbor transport business requests the Korea Port Training Institute established for the purpose of providing education and training for harbor transport business operators or harbor transport-related business operators (hereinafter “harbor workers”) to allow its members to provide education and training for harbor workers, the case holding that Party A’s trade union members are not obliged to provide education and training for harbor workers under Article 27-3(4) of the Harbor Transport Business Act (amended by Act No. 1451, Dec. 27, 2016) and Article 16 of the Enforcement Decree of the Harbor Transport Business Act; the Korea Port Training Institute is obligated to provide education and training for harbor workers under its control; and it is sufficient that Party A’s members are required to provide education and training for those subject to education and training under its control; according to the education plan and schedule of the Korea Harbor Training Institute, Party A’s labor union’s performance of education and training for port workers under its control; and it is sufficient that Party A’s members are not obliged to provide education and training for 201.

Article 27-3 (1) and (4) of the Harbor Transport Business Act (Amended by Act No. 14511, Dec. 27, 2016); Article 16 [Attachment Table 7] of the Enforcement Decree of the Harbor Transport Business Act; Article 33 of the Employment Security Act

Onnuri Port Trade Union

Korea Harbor Training Institute (Law Firm Initial, Attorney Kim Yong-deok, Counsel for defendant)

July 13, 2017

1. The defendant shall allow the education and training of harbor workers for the members of the plaintiff's request.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The relationship between the parties

1) On December 2, 2014, the Plaintiff was a trade union established to engage in a labor supply business for harbor transport businesses in Ulsan Metropolitan City. On August 3, 2015, the Plaintiff obtained permission from the head of the Ulsan District Office of the Busan Regional Employment and Labor Administration for labor supply business on August 3, 2015, with the content that the permitted area is Ulsan Metropolitan City pursuant to Article 33 of the Employment Security Act, the permitted occupation is a port unloading, and the permitted occupation is the port unloading on August 2, 2018.

2) The Defendant is a corporation established with the aim of providing education and training on harbor transport, port safety, etc. to those who employ or provide services to harbor transport business operators or harbor transport-related business operators pursuant to Article 27-3 of the Harbor Transport Business Act (hereinafter “harbor workers”).

B. The defendant's refusal of training of harbor workers and decision of provisional disposition

1) From December 4, 2015, the Plaintiff requested the Defendant to educate and train its members on three occasions, but the Defendant did not accept the request.

2) On September 5, 2016, the Plaintiff filed an application against the Defendant for provisional disposition ordering the Defendant to allow the education and training of harbor workers for its members. On December 28, 2016, the Ulsan District Court rendered a decision that “the Defendant would allow the education and training of harbor workers requested by the Plaintiff” (Ulsan District Court 2016Kahap314, hereinafter “instant provisional disposition”).

3) The Defendant filed an objection against the order of provisional disposition on January 5, 2017, but the Ulsan District Court rendered a decision to authorize the provisional disposition on February 16, 2017 (Ulsan District Court No. 2017Kahap5, hereinafter “instant provisional disposition”).

C. The Defendant’s rejection of education and training for harbor workers, decision of indirect compulsory enforcement, etc.

1) On February 22, 2017, according to the decision of approval of provisional disposition, the Plaintiff sent to the Defendant a certificate of contents of the request for the education and training of 12 members affiliated with the Defendant for the training of 2017 harbor employees. On February 27, 2017, the Defendant rejected on the ground that the training plan for 2017 harbor employees was already finalized.

2) Meanwhile, on January 10, 2017, the Plaintiff filed an application for indirect compulsory enforcement against the Defendant regarding the decision of provisional disposition. On April 7, 2017, the Ulsan District Court rendered a decision that “The Defendant shall grant education and training on each of the subjects of port loading and unloading among the training of harbor employees requested by the Plaintiff according to the decision of provisional disposition, until September 11, 2017, and until July 3, 2017, when the Defendant fails to perform this, until the implementation is completed, the Defendant shall pay to the Plaintiff the amount calculated at each rate of KRW 1,200,000 per day in the case of the port loading and unloading practice, and KRW 400,00 per day in the case of the mass loading and unloading practice, and KRW 400,00 per day in the case of the mass discharging practice (hereinafter “instant indirect compulsory enforcement decision”).

3) According to the decision of indirect compulsory performance, the Defendant agreed to provide each of the subjects of port loading and unloading practice among the education and training of harbor workers for the members of the Plaintiff’s association, from September 11, 2017 to September 15, 2017, and from October 16, 2017 to November 10, 2017, respectively.

(d) Relevant statutes;

Article 27-3 (Establishment, etc. of Educational and Training Institution) (1) of the Table Harbor Transport Business Act included in the main sentence of this Decree may establish an educational and training institution to provide persons employed by or providing services to harbor transport business operators or harbor transport-related business operators with education and training regarding harbor transport safety, etc. as prescribed by Presidential Decree. Article 16 (Education and Training Courses, etc.) of the Enforcement Decree of the Harbor Transport Business Act.

[Reasons for Recognition] Unsatisfy, Gap's statements in Gap's 1 through 5 (including branch numbers; hereinafter the same shall apply), 9 through 12, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) Plaintiff

The defendant is an institution that conducts education and training on harbor transport and port safety for harbor workers, and is obligated to allow the education and training of harbor workers for the members of the plaintiff who has obtained permission for labor supply business for harbor transport business.

2) Defendant

Under the Harbor Transport Business Act, the entity that may request the education and training of harbor workers to the Defendant is not an individual, such as those newly employed by harbor transport business operators, etc., nor an entity as a non-corporate group.

B. Determination

In full view of the following circumstances, the Plaintiff has the right to request the Defendant to provide training for harbor workers for its members, and the Defendant has the duty to provide training for harbor workers for its members, taking into account the above facts recognized as mentioned above, Gap evidence 7, Eul evidence 3 through 5, and the whole purport of the pleadings.

① On December 2, 2014, the Plaintiff was a trade union established to operate a labor supply business for harbor transport business in Ulsan Metropolitan City. On August 3, 2015, the Plaintiff was granted permission for the labor supply business to the head of the Ulsan District Office for the head of the Ulsan District Office for Labor.

② Article 27-3(4) of the Harbor Transport Business Act and Article 16 of the Enforcement Decree of the Harbor Transport Business Act provide that “a person newly joined or enrolled in a labor union organized to provide services to persons newly employed or employed by harbor transport business operators, etc. and harbor transport business operators, etc.” The Plaintiff’s members are those subject to basic education and training.

③ The Defendant is an educational institution which is not a mere private educational institution pursuing only the interests of its members, but has obtained authorization for establishment pursuant to the law. Since the Defendant is performing public duties to prevent safety accidents in advance through the education of harbor employees in the harbor transport business area with high risk of safety accidents, it is necessary to provide education and training for those who are not its members.

④ According to the education plan and schedule of the Busan Training Institute and the Incheon Training Institute that belongs to the Defendant, it is sufficient to have sufficient ability to conduct the education of the port loading and unloading practical subjects as requested by the Plaintiff, and if the ability to conduct the education is insufficient, it is also necessary to establish an additional education and training course.

(5) Article 27-3 (1) of the Harbor Transport Business Act (amended by Act No. 14511, Dec. 27, 2016; and scheduled to enter into force on December 28, 2017, provides that “Any person engaged in a harbor transport business or harbor transport-related business that is highly likely to cause a safety accident prescribed by Ordinance of the Ministry of Oceans and Fisheries, among those engaged in a harbor transport business or harbor transport-related business, shall undergo education and training conducted by the Minister of Oceans and Fisheries,” and Paragraph (2) of the same Article provides that “the Minister of Oceans and Fisheries shall restrict any person who fails to undergo education and training under paragraph (1) to engage in a harbor transport business or harbor transport-related business prescribed by Ordinance of the Ministry of Oceans and Fisheries, as prescribed by Ordinance of the Ministry of Oceans and Fisheries.” If the Defendant refuses to provide education and training to its members,

6) As long as the Plaintiff’s members are eligible for education and training conducted by the Defendant, the Plaintiff has the right to request the Defendant to provide training for harbor workers for its members on behalf of its members (in fact, the Defendant receives an application for education and training or send a notice of education and training under the name of an

3. Conclusion

If so, the plaintiff's claim shall be accepted with due cause, and it is so decided as per Disposition.

Judges Han-Gyeong (Presiding Judge)