[1] The meaning of employers under the main text of Article 33(1) and Article 39 subparag. 3 of the Trade Union Act, who are parties to collective bargaining and bear the duty of collective bargaining

[2] The case holding that a member of the Harbor Transport Association, an incorporated association, does not constitute an employer who bears the duty of collective bargaining against a unit trade union under the National Port Trade Union Federation

[1] The term "employer" under the main text of Article 33 (1) and Article 39 subparagraph 3 of the Trade Union Act refers to a person who has a subordinate relationship with the worker, that is, a person who has an explicit or implied labor contract with the aim of leading and supervising the worker to receive the work and paying the wage in consideration of the fact.

[2] The case holding that even if a harbor transport association, which is an incorporated association, concluded a collective agreement with the Federation of Korea Port Trade Unions, members of the above Association do not constitute an employer who bears the duty of collective bargaining against a unit trade union under the above Federation of Trade Unions

[1] Articles 33(1) and (5), and 39 subparag. 3 of the Trade Union Act / [2] Articles 33(1) and (5), and 39 subparag. 3 of the Trade Union Act

[1] Supreme Court Decision 85Nu856 delivered on December 23, 1986, Supreme Court Decision 92Nu1301 delivered on November 23, 1993 / [2] Supreme Court Decision 86Nu1949 delivered on February 10, 1987 (Gong1987, 424) Supreme Court Decision 94Nu9290 delivered on January 4, 1995 (Gong195Sang, 1167)

South Sea Chemical Co., Ltd. (Attorney Park Sang-hoon, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Korean Port and Transport Trade Union (Korean Port and Transport Trade Union, name before the modification, and Korean Port and Transport Trade Union) (Attorney Gyeong Chang-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 94Gu8497 delivered on January 27, 1995

All appeals are dismissed. The costs of appeal are assessed against the defendant's assistant intervenor and the remainder are assessed against the defendant.

The grounds of appeal by the defendant and the defendant assistant intervenor are also examined.

1. The main text of Article 33(1) of the Trade Union Act provides that the representative of a trade union or a person delegated by a trade union shall have the right to negotiate on the conclusion of a collective agreement or other matters with an employer or employers' association for the trade union or union members.Article 39 subparag. 3 of the same Act provides that the employer shall be one of the negotiating parties corresponding to the trade union by stipulating that the employer shall refuse or neglect the conclusion of collective agreement or other collective bargaining with the representative of the trade union or the person delegated by the trade union without any justifiable reason. The employer provided for in the above Act refers to a person who has a subordinate relationship to the trade union with the employee, i.e., a person who has an explicit or implied employment contract for the purpose of receiving labor from the employee and paying wages in consideration for such labor union or union member (see, e.g., Supreme Court Decision 85Nu856, Dec. 23, 1986).

2. According to the facts found by the court below, the plaintiff 1 and the plaintiff 2 were supplied with the above 9-year shipping and unloading services for the non-party 1 and the non-party 2's members of the 3-year shipping and unloading trade union (the non-party 1 and the non-party 4-year shipping and unloading trade union's 6-year loading and unloading services for the non-party 1 and the non-party 2's 9-year loading and unloading services for the non-party 1 and the non-party 9-year loading and unloading services for the non-party 1 (the non-party 1 and the non-party 2's 9-year loading and unloading services for the non-party 1 and the non-party 2's 9-year loading and unloading services for the non-party 9-year loading and unloading services for the non-party 1 and the non-party 3-party 9-party 9-party shipping and unloading services for the non-party 1 and its members.

If the facts are as above, the Plaintiff cannot be deemed to have established an explicit or implied labor contract relationship with the Intervenor’s union members, and otherwise there is no evidence to deem that there exists a subordinate relationship between the Plaintiff and the said union members, the Plaintiff is not an employer under Articles 33(1) and 39 of the Trade Union Act with respect to the Intervenor’s union members (see, e.g., Supreme Court Decisions 85Nu856, Nov. 23, 1993; 92Nu1301, Nov. 23, 1993).

Although the Plaintiff, as alleged by the Defendant, became a member of the non-party association established on July 1, 1978 with a harbor loading and unloading business license under the Harbor Transport Business Act, the Plaintiff became a member of the non-party association established on March 12, 1984. According to the articles of incorporation of the non-party association, the non-party association provides that the non-party association shall enter into a collective agreement with the non-party association for collective bargaining and wages and welfare as part of the business. The non-party association has entered into a collective agreement with the non-party association since 1981 and the non-party association's right to employ workers shall be owned by the non-party association's member's employees to the effect that it is difficult for the non-party association to enter into the above employment contract with the non-party association's member's member shop or the non-party association's member shop to use the above labor union's employees' right to use the non-party association's member shop or its member labor union's employees' right to use from the non-party association's member shop.

In addition, it cannot be said that a subordinate labor contract relationship between the plaintiff and the partner of the intervenor union has been established only by the provisions of the collective agreement where the grounds for the argument of the theory of the lawsuit or the theory of the lawsuit is in place.

Therefore, the plaintiff is not in the position of employer under Articles 33(1) and 39 of the Trade Union Act for the members of the intervenor union, and the plaintiff cannot be said to bear the obligation of collective bargaining against the intervenor union based on the provisions of the above collective agreement. Thus, even if the intervenor union rejected the plaintiff's demand for collective bargaining in relation to loading and unloading work, it does not constitute an unfair labor practice. Therefore, the judgment below to the same purport is correct and there is no violation of law as argued in the arguments.

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

Justices Kim Jong-sik (Presiding Justice)