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(영문) 서울행정법원 2011.6.30. 선고 2010구합45149 판결
단체협약시정명령취소
Cases

2010 Gohap45149 Revocation of corrective order in a collective agreement

Plaintiff

Court Officials' Union

Defendant

Minister of Employment and Labor

Conclusion of Pleadings

June 2, 2011

Imposition of Judgment

June 30, 2011

Text

1. The part concerning Articles 5, 24, 27, 65, and 70 of the above collective agreement among the corrective orders issued by the defendant with respect to the provisions of the collective agreement in the attached Tables 1 and 207 against the plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The Defendant’s corrective order on August 31, 2010 with respect to the provision of the collective agreement in attached Form 1, attached hereto, against the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff entered into a collective agreement in 2007 (hereinafter referred to as the “instant agreement”) with the Minister of Court Administration on June 2, 2008, which was composed of 83 provisions of [Attachment 1] and 2007 collective agreement provisions (hereinafter referred to as “instant agreement provisions”) between the Plaintiff and the public official labor union, the establishment of which was reported pursuant to the former Act on the Establishment, Operation, etc. of the Public Officials’ Labor Unions (amended by Act No. 10133, Mar. 17, 2010; hereinafter referred to as “Public Officials’ Labor Unions Act”). The Defendant, following a resolution of the Seoul Regional Labor Relations Commission on the illegality of the instant agreement, concluded a corrective order against the Plaintiff on August 31, 2010 on the ground that the instant agreement concerns the management and operation of the institution or management of the institution, which is not directly related to the working conditions, and thus, constitutes a violation of Article 18(1)3 proviso of the Public Officials’ Labor Union Act (hereinafter referred to as Public Officials’ Labor Union Act).

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

A. The plaintiff's assertion

(1) The Defendant, the head of an administrative agency, ordering correction to the agreement of the members of the judiciary, would impair the independence and autonomy of the judiciary.

(2) Although the provisions of the instant agreement are matters concerning the management and operation of the institution, such as the matters concerning policy-making and the exercise of the right to appoint, it constitutes matters directly related to the working conditions of court officials, and thus, it is not prohibited to negotiate under the proviso of Article 8(1) of the Public Officials Labor Union Act

(b) Related statutes;

Attached Form 2 is as shown in the relevant statutes.

C. Determination

(1) First, the independence of the judicial authority prescribed by the Constitution as to the assertion refers to the judge's independence, that is, the judge's independent decision in accordance with the Constitution and laws without being subject to any external interference, including the independence of the judge or the status of the judge. The autonomy of the judicial authority refers to the autonomy, etc. in the judicial authority and appointment of the judge (see Articles 101, 103, and 106 of the Constitution). However, the instant corrective order was made pursuant to the Public Officials Labor Union Act and the Public Officials Labor Union Act, etc. to which the court public officials are applicable under Article 2 of the Public Officials Labor Union Act and Article 2 of the State Public Officials Act, and it cannot be said that such independence of the judicial authority or autonomy of the judicial authority is damaged or infringed, and there is no ground to believe that the autonomy and autonomy of the judicial authority were damaged. Accordingly, the Plaintiff

(2) On the second argument

(A) Legal principles

According to the proviso to Article 8(1) of the Public Officials' Labor Unions Act and Article 4(1) of the Enforcement Decree of the same Act, matters concerning policy-making, such as planning of policies or formulation of plans, etc., to be performed by the State or a local government as its authority under statutes, etc., matters concerning the exercise of the right to appoint public officials, such as appointment, promotion, and transfer of public officials, matters concerning the organization and quota of institutions, matters concerning the compilation and execution of budgets and funds, matters concerning disputes to which administrative agencies

The term "policy decisions" refers to matters concerning the planning of policies, the formulation and execution of budgets, the planning and proposal of statutes and ordinances, and the management and operation of administrative agencies, among affairs distributed to each department or local government under the Government Organization Act, Presidential Decree or Enforcement Rule related to the organization of administrative departments, the Local Autonomy Act, and municipal ordinances, which are prescribed that each agency as an administrative agency shall deal with its own judgments and responsibilities. Specifically, matters concerning the budget organization of the State or local governments, matters concerning administrative execution, matters concerning the number of public officials and placement of public officials, matters concerning the imposition and collection of national taxes, local taxes, user fees, etc., matters concerning the acquisition, management and correction of property or public facilities, matters concerning disciplinary orders, ex officio dismissal, leave of absence, dismissal, dismissal, job classification, promotion, transfer, retirement, etc., matters concerning the specific exercise of the right of appointment, such as the planning and implementation of the work performance rating system, matters concerning job classification guidelines, etc., and matters concerning internal security measures such as emergency guidelines, etc.

However, under the proviso of Article 8(1) of the Public Officials’ Labor Unions Act, matters directly related to the working conditions of public officials may be subject to collective bargaining. Whether the working conditions of public officials refer to certain matters is not specified in the Public Officials’ Labor Union Act or the Trade Union Act, etc. However, Article 17 of the Labor Standards Act provides that “when concluding a labor contract, an employer shall clearly state the contractual working hours of wages, holidays under Article 5, annual paid leave under Article 60, and other working conditions prescribed by Presidential Decree.” Article 8 of the Enforcement Decree of the same Act provides that “other working conditions shall be stipulated as “other matters concerning the place of employment and the place of employment,” matters stipulated in subparagraphs 1 through 12 of Article 93 of the Labor Standards Act, “where an employee is accommodated in a dormitory attached to a workplace, matters stipulated in the dormitory rules,” and comprehensively considering these provisions, the terms and conditions of employment of public officials shall be determined by the Labor Standards Act, such as the commencement and termination of the work, recess hours, holidays, holidays, matters concerning overtime, overtime, payment of wages, etc.

Although it should be considered that the budget formation, the relocation of the administrative agency, the change of the work system (Provided, That there are direct relations with the preparation of the working hours table following the change of the work system), the fixed number of agencies, reorganization, organization reorganization, business plan, work evaluation standards, personnel movement for individual employees (However, the provision of the employee's home or commuting bus due to the personnel movement is directly related), specific disciplinary orders, etc. are not subject to collective bargaining because they are not directly related to the working conditions.

(B) With respect to Articles 5, 24, 27, 65, and 70 of the instant Convention, each of the provisions of the said Convention does not constitute a prohibition of negotiations under the proviso of Article 8(1) of the Public Officials’ Labor Union Act on the following grounds. Accordingly, the Plaintiff’s assertion on this part is with merit.

① Article 5 of the Convention provides that the association’s opinion shall be collected in cases where it is intended to promote the enactment, amendment, and affairs of rules directly related to the working conditions of union members, unless there is a reasonable ground to the contrary. The procedures for the enactment or amendment of these rules or the procedures for deliberation for the enactment or amendment thereof themselves constitute matters concerning policy-making. However, among the affairs promoted by the court through the procedures prescribed in Article 17 of the Court Organization Act, Articles 2 through 5 of the Rules on the Procedure, etc. for the Enactment or amendment of the Supreme Court Regulations, or the affairs directly related to the working conditions of court public officials among those promoted by the court, the rules or affairs directly related to the working conditions of court public officials would directly affect the working conditions of the court public officials.

② Article 24 of the Convention provides that the regular and supplementary personnel in general service and technical service shall make efforts to implement 20 days prior to the date of personnel issuance. This constitutes matters pertaining to the management and operation of institutions, such as the exercise of the right to appoint. Although it is difficult to view that the personal movement of individual court officials is directly related to the working conditions as seen earlier, it cannot be readily concluded that there is no direct relation to the working conditions even if it is determined the specific procedure related to the personnel movement. In light of the purport of the entire argument in each of the statements in Gap evidence 5-1 and evidence 6-1, if some court officials were to have difficulty in the transfer of the business or technical personnel due to the suspension of assignment at the date of transfer, it is reasonable to deem that the above provision of the Convention directly related to the working conditions and the detailed procedure for the improvement of the personnel movement in order to resolve inconvenience due to the suspension of transfer due to the suspension of transfer.

③ The provisions of Article 27 of the Convention stipulate that the agreement shall be reflected in cases where a member’s personnel compromise exists, and this constitutes matters pertaining to the management and operation of an agency, unless there are reasonable grounds. However, in light of the overall purport of the pleadings in each of the statements Nos. 5-5 and No. 6-5, there are cases where a court official suffers inconvenience in performing his/her duties due to personal reasons, such as health deterioration or the cultivation of parents, and it is reasonable to view the provisions of the Convention as being directly related to the working conditions as being directly related to the working conditions.

④ Article 65 of the Convention provides that a member of a workplace may appeal to a union if he/she is aware of any violation of human rights, unfair treatment, or corruption, etc. of his/her superior, and that the court shall take measures based on the result of the investigation by the relevant department and notify the union of the result thereof. This constitutes matters pertaining to the management and operation of the agency. However, the foregoing Convention provides institutional devices to correct unfair treatment, etc. received from a superior employee in the workplace and prevent recurrence, which directly affect the business environment of the public official in the court.

⑤ According to Article 70 of the Convention, Articles 57 and 67 of the State Public Officials Act, and Articles 78 and 79 of the Rules of the Court Officials, when deemed necessary for performing official duties, such as civil petitions, the head of an affiliated agency may order the court officials under his jurisdiction to work outside working hours or to work on Saturdays or public holidays. The Chief Justice of the Supreme Court may change working hours or working days if deemed necessary due to the nature of duties or regional characteristics, and public officials under his/her jurisdiction are obliged to obey and comply with orders of superior officers under his/her jurisdiction in the course of performing duties. Thus, the Chief Justice of each level, etc. may order public officials under his/her jurisdiction to attend various events, mobilization of personnel

The above Convention provides that employee mobilization shall not be made in consideration of the purpose or purpose of the event at the time of various events, except in extenuating circumstances. This does not prohibit the legitimate participation in the event for the purpose or purpose of the event, but rather minimize the mobilization of employees against the individual’s will against the purpose of the exercise or for the purpose of the exercise. In light of the overall purport of the pleading in each of the items of evidence No. 5-24 and evidence No. 6-24, the court of each level can acknowledge the fact that the court mobilized public officials for various events, such as volunteer service, conducted in addition to the work hours, and has performed duties, such as event support, etc.

If a public official is mobilized to an unjustifiable exercise and bears incidental duties other than his/her own duties, the problem arises, such as the increase of work volume and working hours, and therefore, it is reasonable to view the provisions of the above Convention as being directly related to working conditions.

(C) With respect to the provisions of the instant Convention other than the provisions indicated in subparagraph (b) of the said Article, the aforementioned provisions are related to the management and operation of agencies, such as policy-making or exercise of the right to appoint, and are related to the improvement of the court’s duties and promotion system. As a result, the improvement of business efficiency and the quality of judicial services, etc. under the provisions of each of the instant agreements, and the opportunity to promote as soon as possible, the working conditions of court officials can be improved to a certain extent. However, in light of the aforementioned legal principles, it cannot be deemed as directly related to the working conditions of public officials. Accordingly, the Plaintiff’s allegation in this part is without merit.

(3) Sub-decisions

(A) Articles 5, 24, 27, 65, and 70 of the instant Convention contain matters concerning the management and operation of an agency. However, it does not constitute a prohibition of negotiations under the proviso of Article 8(1) of the Public Officials’ Labor Union Act as matters directly related to the working conditions of its members, and thus, the part concerning the provisions of each of the instant agreements among the corrective orders prior to a different premise is unlawful.

(B) On the other hand, Articles 19, 20, 21, 26, 28(1) and (2), 37, 38(1) and (2), 40, 41, 42, 43, 44, 48, 49, 50, 51, 52, 53, 54(1) and (2), 72, and 73 of the remaining provisions of the Convention except for the above provisions of the Convention (Articles 19, 20, 21, 26, 28(1) and (2), 37, 38(1) and (2), 40, 42, 43, 48, 49, 50, 51, 52, 53, 54(1), (2), 72, and 73) concerning the management and operation of an institution, such as exercising the right to appoint, constitute a matter of prohibition of negotiations under the Public Official Labor Regulations.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, the chief judge and the vice judge

decoration of Judge Merit;

Judges Kim Jae-soo

Attached Form

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

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