Whether the part concerning working conditions and other treatment of workers in a collective agreement has the effect of directly regulating the labor contract relations between workers and their employer (affirmative)

Article 33 of the Trade Union and Labor Relations Adjustment Act

East Transport Co., Ltd.

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant (Law Firm Woo, Attorneys Shin Young-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu31009 decided October 18, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 33(1) of the Trade Union and Labor Relations Adjustment Act provides that “Any part of the rules of employment or labor contract that violates the standards for working conditions and other workers’ treatment as stipulated in the collective agreement shall be null and void.” Article 33(2) of the same Act provides that “Any matter not stipulated in a labor contract or any part which is null and void under the provisions of paragraph (1) of the same Article shall conform to the standards set forth in a collective agreement.” Therefore, the part that sets forth working conditions and other workers’ treatment in a collective agreement, i.e.

2. The reasoning of the lower judgment reveals the following facts.

A. On February 13, 2010, the Intervenor joining the Defendant (hereinafter “ Intervenor”) concluded a probationary employment contract with the Plaintiff, and entered into a probationary bus driving service.

The rules of employment of the plaintiff provide that the new employee may be employed when it is recognized that his/her ability and character are appropriate for a period of on-the-job training for three months.

B. On May 3, 2010, the Intervenor entered into a labor contract with the Plaintiff from May 5, 2010 to January 30, 2011 during the training period.

On January 26, 2011, the Plaintiff notified the intervenors that the period stipulated in the labor contract is terminated on January 30, 201, and that the labor contract is terminated between the Plaintiff and the Intervenor.

C. On the other hand, on April 23, 2008, the Plaintiff entered into a collective agreement with Jeju Regional Headquarters General Trade Union (hereinafter “instant trade union”) by setting the term of validity from April 1, 2008 to March 31, 2010, and again entered into the same collective agreement on May 3, 2010. Article 18 Subparag. 2 of the collective agreement provides that “The Plaintiff shall be appointed as an intern or a suspended employee, and the internship and temporary employee shall be decided as a suspended employee with a three-month probation period fixed.” Moreover, the Intervenor joined the instant trade union on May 31, 2010.

3. The following circumstances acknowledged by the evidence duly adopted along with these factual relations, namely, Article 5 of the collective agreement provides that “The working conditions prescribed in this agreement shall take precedence over the rules of employment and regulations, thus null and void labor contracts falling short of or contrary to the standards of this agreement, and the null and void part thereof shall conform to the standards of this agreement.” ② In the collective agreement, the retirement age of union members is set at 60 years, and no other provision on fixed-term workers exists. ③ The Plaintiff and the instant trade union shall decide on wages in 209 after the collective agreement was concluded, with regard to the implementation of subparagraph 2 of Article 18 of the collective agreement, with regard to “the employer is employed as an intern or temporary worker and for whom 3 months have elapsed, the employer shall be determined as a suspended worker pursuant to Article 18 of the collective agreement within 10 days from the date of the conclusion of this agreement,” and it is reasonable to consider that the part of the collective agreement, which was concluded with the Plaintiff through the three-month probation period, has no normative provision on wages of the Plaintiff’s.

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court determined that Article 18 subparag. 2 of the instant collective agreement does not relate to working conditions and, even if having a normative effect, Article 18 subparag. 2 of the instant collective agreement between the Plaintiff and the Intervenor does not apply to the labor contract between the Plaintiff and the Intervenor, and that the labor contract was lawfully terminated as the expiration of the term of validity. In so determining, the lower court erred by misapprehending the legal doctrine on the normative effect of the collective agreement, thereby adversely affecting

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)