2011Guhap20628 Revocation of corrective order in a collective agreement

National Public Transport and Social Services Trade Union

The Head of Seoul Regional Employment and Labor Agency

March 27, 2012

April 19, 2012

1. The part regarding Article 13(1) of the collective agreement that the Defendant issued against the Plaintiff on May 3, 2011, is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Three-minutes of litigation costs are assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The Defendant’s corrective order against the Plaintiff on May 3, 201 is revoked.

1. Details of the disposition;

A. On November 15, 2010, the Plaintiff (Industrial Trade Union) and Seoul National University Hospital concluded a collective agreement containing the following provisions (hereinafter “instant collective agreement”).

Article 10-2 (User of Work Hours)(1) Hospitals shall guarantee the limit of the exemption from working hours under the Labor Law (10,000 hours) and recognize (10 or less persons in the case of use in the spawl) workers as five (10 or less persons in the case of use in the spawl), Article 12 (1) of the Union (1) of the Union's activities as well as 8 hours in one week during working hours so that union activities may be performed between unions. The scope of executive officers shall be as follows: executive officers, the heads of departments and departments, organization members, and guidance members, and the number of union members shall not exceed 40 persons. Where an association takes office as the full-time officer of a superior organization affiliated with the union under Article 13 (1) of the other Organization), the vacancy of its predecessor shall be agreed with the hospital and the union within the limit of the exemption from working hours under the Labor Law, but the negotiating member shall be allowed within the limit of 10 or 10-20 days prior to the date requested by the representative.

B. The Defendant recommended the Plaintiff to voluntarily correct each of the instant provisions on the ground that Articles 12(1), 13(1), and 79 of the instant collective agreement violate Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”). The Plaintiff failed to comply with the said recommendation by the deadline for voluntary correction ( February 28, 201), and the Defendant issued a corrective order (hereinafter “instant disposition”). The details of the resolution by the Seoul Regional Labor Relations Commission are as follows.

A person shall be appointed.

【Unsatisfied Facts, Gap evidence 1-2, Gap evidence 15-2, Gap evidence 18-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) When interpreting Article 24(2) and (4) and Article 81 subparag. 4 of the Act as mandatory provisions, each of the above provisions is likely to violate the Constitution, such as infringing on the essential contents of the three labor rights guaranteed by Article 33 of the Constitution, contrary to the principle of labor-management autonomy derived from Articles 33, 10 and 37(1) of the Constitution, and infringing on the essential contents of the right to work under Article 32 of the Constitution. Therefore, each of the above provisions should be regarded as discretionary and literary provisions. Therefore, the instant disposition that assumes that each of the above provisions is mandatory provisions is unlawful, even if Article 24(2) and (4) of the Act is considered as compulsory provisions, the instant disposition is unlawful for the following reasons.

A) Negotiation members and the paid part of union activities (Articles 12(1) and 79)

① In light of the fact that Article 24 of the Act basically sets forth a provision to regulate a full-time officer of a trade union (hereinafter referred to as a "full-time officer of a trade union"), and in particular, Article 24(4) of the Act states that a "worker" under Article 24(2) of the Act refers only to a "full-time officer of a trade union". Therefore, Articles 12(1) and 79 of the collective agreement of this case, which regulate union departments and negotiating members who are not full-time officers of a trade union, are not prohibited under Article 24 of the Act, and thus, the instant disposition was taken on the premise that Article 24 of the Act is applied, although Article 24 of the Act is not illegal.

② The Defendant and the Ministry of Employment and Labor have expressed their position to the effect that, with respect to the guarantee of daily union activities under the collective agreement and the prohibition of full-time officer's payment of wages under Article 24 of the Act, the case where a full-time officer is operated on the basis that the patterns of union activities or the level of paid work is in violation of the Trade Union and Labor Act, and that, accordingly, the Plaintiff and Seoul Special Hospital entered into the instant collective agreement to the extent that the level of paid work does not reach (part) union activities in the form of full-time employment. The instant disposition is in violation of

B) In light of the fact that the full-time officer of a superior organization (Article 13(1) and Article 24(4) of the Act on the Appointment of Workers of a superior organization stipulate the affairs subject to the exemption of working hours comprehensively, and the definition of a trade union includes the federation of associated organizations or the industrial associated organization, the duties dispatched to a superior organization are included in the "maintenance and management of the trade union" under Article 24(4)

(b) Related statutes;

Article 33 of the Constitution of the Republic of Korea

(1) Workers shall have the right to independent association, collective bargaining, and collective action to improve working conditions.

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

4. The term "trade union" means an organization or associated organization of workers which is organized on their own initiative for the purpose of maintaining and improving their working conditions and promoting the improvement of workers' economic and social status by uniting independently and collectively: Provided, That an organization shall not be deemed a trade union in cases falling under any of the following items:

(a) allow the participation of an employer or a person acting on behalf of the employer at all times, or where the principal part of the expenses is supported by the employer.

(c) Where the purpose is only mutual aid, salvage and other welfare business;

(d) Where joining a person other than a worker is permitted: Provided, That in case where the dismissed person has requested the Labor Relations Commission to remedy unfair labor practices, it shall not be interpreted as a person other than the worker until the Central Labor Relations Commission has made a decision on review;

(e) Where it aims mainly at a political movement;

Article 24 (Full-time Officer of Trade Union) (1) Workers may be engaged exclusively in affairs of a trade union without providing labor prescribed in a labor contract, if it is prescribed by a collective agreement or with the employer's consent.

(2) A person who is engaged exclusively in affairs of the trade union pursuant to paragraph (1) (hereinafter referred to as the "full-time officer") shall not be paid any benefits from the employer during the period of said full-time.

(3) Notwithstanding the provisions of paragraph (2), where a collective agreement is prescribed or the employer consents, an employee may, without loss of wages, engage in affairs prescribed by this Act or other Acts, such as consultation with the employer, negotiation, grievance settlement, industrial safety activities, etc. and the maintenance and management affairs of a trade union for the sound development of labor-management relations (hereinafter referred to as "trade union") within the scope not exceeding the limit of exemption from working hours determined under Article 24-2 (hereinafter referred to as "limit of exemption from working hours") in consideration of the number of union members by business or workplace (hereinafter referred to as "limit of exemption from working hours").

(5) A trade union shall not conduct industrial actions in order to demand the payment of wages in violation of paragraphs (2) and (4) and accomplish such demand. (Newly Inserted by Act No. 990, Jan. 1, 2010>

(1) The Working Hours Exemption Deliberative Committee (hereinafter referred to as the "Committee") shall be established in the Ministry of Employment and Labor to set the limit of working hours exemption.

(2) The limit of exemption from working hours shall be publicly notified by the Minister of Employment and Labor, as deliberated and decided by the Committee, and may be determined every three years after re-deliberation.

Article 31 (Preparation of Collective Agreement)

(3) If any collective agreement is unlawful, administrative agencies may order the correction thereof with a resolution of the Labor Relations Commission.

Article 81 (Unfair Labor Practices) No employer shall commit any of the following acts (hereinafter referred to as "unfair labor practices"):

4. Domination of or interference in the organization or operation of a trade union by workers, and subsidization of wages to the full-time officer of a trade union or subsidization of the operation expenses of a trade union: Provided, That it is inevitable that the employer permits workers to carry out the activities referred to in Article 24 (4) during working hours, and it is also excepted to contribute funds for the welfare of workers, or for the prevention, relief, etc. of economic depression, and the provision of a trade union office of a minimum size;

1) The issue of the payment of wages to the full-time employee

A) Although maintaining the status of workers, the full-time union employees who are engaged in the trade union affairs without having to provide labor to the employers, have been settled for a long time under the special circumstances of Korea where the trade union was mainly formed by each company, which is recognized by the consent of the employers through collective agreements, etc. (conformative theory) and is a type of offering convenience for union activities.

B) An employer has paid wages to a full-time employee as a practice. However, in principle, even though a trade union, which received the benefits of a full-time employee, is obligated to pay wages to a full-time employee, if an employer who is in conflict with a historical and structural aspect, supports the benefits of a full-time employee, it is highly likely to impede the autonomy of the trade union, and this constitutes “where the employer has received the subsidies from the employer” as the main expense of the trade union, which constitutes “where the principal expense of Article 2 subparag. 4(b) of the Act is supported by the employer.” In addition, there is room for disqualification of the trade union under the law.

In light of the above circumstances, the Act prepared a legal basis for full-time union workers in the process of the enactment of Act No. 5310 on March 13, 1997, and provided that the employer is not entitled to benefits during the previous period and the payment of benefits in violation of this provision constitutes unfair labor practices (the current Act is identical to Article 24(1), (2), and Article 81 subparag. 4 main sentence of the Act, and its application has been postponed not later than December 31, 2009 by the special provisions of the Addenda).

C) On the other hand, in order for the executives of a trade union to perform their union affairs, they are bound to use the working hours for which they have worked as a union member, and in particular, in the case of a company-level trade union at a small workplace, it is difficult for the employer to prepare wages for the full-time union members, and thus guaranteeing a certain portion of labor union activities without wage loss, also accords with the intent of guaranteeing the three basic labor rights under the Constitution. In addition, in fact, the part pertaining to the employer’s labor management, such as resolving the grievances of workers and managing industrial safety, is handled. In this respect, there is a need

2) Details and meaning of the discipline in Articles 24(2) and (4) and 84(4) of the Act

A) Article 24 (1) of the Act on the Prohibition of the Payment of Wages for the Voluntary Employed Workers stipulated that "worker may engage exclusively in the affairs of a trade union without providing labor prescribed by a labor contract if a collective agreement is prescribed or consented by the employer." Paragraph (2) of the same Article stipulated that "the legal basis for the full-time officer of a trade union shall not receive any benefit from the employer during the full-time period," which prohibits the payment of wages to the full-time officer of a trade union in principle, and stipulated that the act of violation of subparagraph 4 of Article 81 of the Act is an unfair labor act, as long as the duty of payment of wages to the full-time officer of a trade union is exempted under the general principle of bilateral contract, and at the same time, it is the legislative purpose of guaranteeing the autonomy and legitimacy of a trade union from the perspective of the employer's control to guarantee the independence and legitimacy of a trade union and eradicating the erroneous labor-management practice.

B) Notwithstanding the provisions of Paragraph 2 of Article 24 of the Act on the Introduction of Work Hours Exemption System, where the employer determines or agrees to do so by collective agreement, Article 24 Section 2, taking into account the number of union members by business or place of business.

To the extent that it does not exceed the determined limit on the exemption of working hours, an employee may conduct business prescribed by this Act or other Acts, such as negotiations, settlement of grievances, industrial safety activities, etc. with an employer without any loss of wages, and maintain and manage a trade union for the development of sound labor-management relations, thereby prohibiting the payment of wages to full-time officers. On the other hand, in order to ensure the actual guarantee of labor rights and the activities of trade unions by small-scale working places, in consultation with an employer, an employer may pay wages to the trade union affairs conducted within the scope of working hours within a certain limit set by the Deliberation Committee on Exemption of Working Hours, taking into account the number of union members, etc. under the Constitution, by allowing the trade union affairs conducted within the scope of working hours within the scope of working hours set by the Deliberation Committee without any loss of wages. The above provision stipulates that the upper limit is legally set by the Deliberation Committee on Exemption of Working Hours, which consists of recommending members in labor and management circles, and public interest members, thereby allowing the employer to do so within the statutory limit of working hours.

3) Determination as to the assertion that Article 24(2) and (4) and Article 81 subparag. 4 of the Act are voluntary provisions

A) Although the Plaintiff asserts that each of the above provisions is likely to violate the Constitution, it is difficult to accept the above argument for the following reasons.

(1) As seen earlier, recognition of the full-time union workers and the payment of their salaries are all the forms of offering of conveniences recognized by the agreement with the employer, and they cannot be seen as wages under the Labor Standards Act, and they cannot be seen as the inherent right of the full-time union workers or the right to organize or the right to organize derived therefrom. Therefore, even if the payment of wages to the full-time union workers is prohibited, they cannot be seen as infringement of the freedom of occupation, the right to work, the principle of equality, the right to work, etc.

② In reality, the payment of wages to a full-time employee is realizing the guarantee of three labor rights. However, in principle, the payment of wages to a full-time employee is to be borne by the trade union that received the payment of wages to a full-time employee, and in that it can be seen as the main part of the expenses of the trade union, if recognized without any restriction, it is highly likely that the autonomy, which is the basic concept of the trade union, would be damaged if it is recognized without restriction, and that it is necessary to eradicate it since there has been wrong practices between the labor and the management.

(3) As seen earlier, a system was introduced to exempt a worker from working hours to recognize paid working hours to a certain extent in order to prevent a realistic decline in labor union activities that could occur therefrom (i.e., the Minister of Employment and Labor publicly notified in accordance with the decision of the Work Hours Exemption Deliberation Committee).

It is difficult to say that there is a violation of the principle of labor-management autonomy because the number of paid exemption hours is relatively large compared to the number of workers and whether to recognize it is entrusted to the autonomy of labor-management.

B) In light of the legislative intent of Article 24(2) and (4) of the Act as seen earlier and Article 24(5) of the Act, the Labor Union shall not conduct industrial action for the purpose of demanding and accomplishing payment of wages in violation of paragraphs (2) and (4) of this Article, and Article 81(4) of the Act provides that the act of providing wages, etc. to full-time officers of a trade union shall be exceptionally permitted to be performed by an employer under Article 24(4) so that workers can be allowed to do the act under Article 24(4). In light of the above provisions, Article 24(2) and (4) of the Act provides that it is difficult to see that it is a mandatory provision (which is related to good morals and other social order among the Acts and subordinate statutes) that can deny the legal effect of an agreement between the employers and employers in violation of the above provisions, it appears that the so-called administrative prohibition provision, which restricts or bans the act in violation of the above provisions, and therefore, it can not be viewed as an exemption of working hours beyond the scope of Article 24(3).

4) Determination as to the assertion of the negotiating committee members and the part concerning the paid treatment of union side activities (Articles 12(1) and 79)

A) The meaning of "worker" under Article 24 (4) of the Act

(1) The plaintiff asserts that "worker" under Article 24 (4) of the Act refers only to a full-time employee under Article 24 (2) of the Act, but the plaintiff's assertion for the following reasons cannot be accepted as it is without merit.

① Under the title of “full-time officer of a trade union”, Article 24 of the Act stipulates the definition of a full-time officer of a trade union, the principle of prohibition of payment of wages, and guarantee of the full-time officer’s union activities against an employer, etc., and Article 24 of the Act stipulates, notwithstanding the principle of prohibition of payment of wages to a full-time officer, that is,, where a collective agreement is prescribed or consented by the employer, a trade union may be conducted without loss of wages to a full-time officer within the limits of exemption of working hours, and Article 24 of the Act stipulates, “full-time officer of a trade union” and Article

In light of the above principle of prohibition of paying wages to full-time union workers and the purport of introducing the system of exemption from working hours, and the structure and form of the above provision, our law prohibits, in principle, the payment of wages to full-time union workers, but does not exceed the limit of exemption from working hours, and it can be found in Article 24 (4) of the above Act. Therefore, an employee under Article 24 (4) of the above Act refers to all workers, not only those who have already been determined as full-time union workers, but also those who have already been appointed as full-time union workers. This interpretation conforms to Article 81 (4) of the above Act, unlike Article 81 (4) of the Act, provides that the full-time officer of a trade union shall be paid wages or assist the operation expenses of a trade union. However, it is clearly distinguishable from the full-time officer and the worker by stipulating that the employer is allowed to engage in activities under Article 24 (4) during working hours.

(3) As seen earlier, Article 24(4) of the Act, instead of prohibiting the payment of wages to full-time union workers, provides that "worker" may process "maintenance and management of trade union" as paid work hours within the scope of "fixed working hours" to prevent actual labor union activities and guarantee three rights to work, so the above provision can be interpreted as " regardless of the principle of prohibition of payment of wages," and therefore, it does not necessarily mean that the above "worker" is limited to "person who is full-time union worker."

(4) According to Article 24(4) of the Act, it is easy to explain the full-time officer of the labor union who works only for the affairs of the labor union, since Article 24(1), 2, and 24(3) of the Act provides that the full-time officer who works for the labor union shall not, in principle, be deemed a full-time officer who works for the labor union as a full-time officer. However, under Article 24(4) of the Act, a full-time officer who works for the labor union shall be able to work for the labor union without incurring wages within the limit of the exemption limit of working hours, and if a collective agreement or an employer consents, other ordinary workers may work for the labor union as prescribed by Article 24(4)

If "worker" in Paragraph (4) is not interpreted as above, if a worker is a full-time worker, not a full-time worker, but a full-time worker is allowed to engage in an unlimited trade union activity regardless of the limit of the exemption of working hours, because the collective agreement or the consent of the employer is not limited to Paragraph (4). This result is that the purport of Paragraph (5) of Article 24 of the Act prohibiting industrial action will be terminated for the purpose of adopting the prohibition of the payment of wages to full-time workers and the exemption of working hours, and the intention of Paragraph (5) of the Act prohibiting industrial action for the purpose of accomplishing the payment of wages to the full-time worker ( therefore, it can be recognized that the full-time

⑤ In fact, deeming that the working hours exemption system applies only to the registered full-time officer, as in the instant collective agreement, if the executives of a trade union, who are not full-time officer on a fixed or daily basis, recognize two hours of paid leave per week regardless of the specific purpose of use, actual required hours, and recognize two months of paid leave, etc. from among the negotiating members, they are in line with the legislative intent of Article 24(4) of the Act stipulating the exemption of working hours within a certain limit of time according to the prohibition on the payment of wages for the full-time officer, as above. [In light of the above evidence, there are 19 members of a trade union excluding 10,000 working places with the limit of 10,000 working hours and 7 full-time officers (including 2 employees excluded from the office), where the executive officer of a trade union recognizes two hours of paid hours per week, 1,976 hours per week x 22 hours per week x 52 hours per week, there are more than 20 hours of paid hours per week.

(2) Therefore, there is no reason for the Plaintiff’s assertion that the worker under Article 24(4) of the Act should be limited to the full-time union worker. Although the collective agreement of this case has a separate employee who uses all the limits of exemption from working hours in Article 10-2, Articles 12(1) and 79 allow union members or negotiating members, etc. to engage in union activities without loss of wages to the extent that they can actually be seen as the full-time officer of the union during working hours. This constitutes a violation of Articles 24(2) and 81(4) of the Act, since the purpose of the prohibition of payment of wages to the full-time officer and the exemption of working hours, etc. of the full-time officer’s payment of wages should be avoided.

B) Whether the principles of trust protection are violated

According to the evidence Nos. 11, 12-1, 2, and 13 evidence, it is clear that the Ministry of Employment and Labor recognizes "the case where the worker is operated as a full-time worker" in various explanatory materials on the working hours exemption system, and it is possible for the worker to be paid the working hours in accordance with the principle of unpaid interest or the collective agreement, etc., if the worker is performed during working hours. However, although the paid amount should not be actually operated as a full-time officer, such as the case where the worker is operated in the form of full-time employment, etc., in the same explanatory materials, it is stipulated that "the case where the worker is operated as a full-time worker" is widely recognized as "the case where it is evident that the worker is to be a full-time worker," and it is not reasonable to conclude that the above explanatory materials are subject to prior disposition of this case in light of the current collective agreement with the Ministry of Employment and Labor, such as the case where the worker is operated as a full-time worker."

5) Determination on the assertion on the full-time officer assigned to a higher-level organization (Article 13(1)

Article 24(4) of the Act provides that "business or place of business" shall be construed as those subject to the exemption from working hours, because it may be deemed that the affairs subject to the exemption from working hours are premised on the business or affairs of a trade union in the workplace, it may be interpreted as not included in those subject to the exemption from working hours if the full-time officer of a superior organization takes office. However, Article 24(4) of the Act provides that not only the affairs prescribed by this Act or other Acts such as consultation and negotiation with the employer, grievance settlement, and industrial safety but also the maintenance and management of the trade union for the sound development of labor-management relations as well as those of the affairs subject to the exemption from working hours shall be decided as those subject to the exemption from working hours. ② Under the Act, the trade union refers to an organization or associated organization organized by the employer for the purpose of maintaining and improving the working conditions and enhancing the economic and social status of workers (Article 2 subparag. 4 of the Act).

As long as Article 24(4) of the Act applies to cases where a full-time officer is dispatched to a higher-level organization and engages in affairs of a higher-level organization, the employer’s support for such full-time officer falls under the proviso to Article 81 subparag. 4 of the Act, and thus does not seem to violate Article 81 subparag.

Therefore, Article 13(1) of the instant collective agreement does not seem to violate Article 24(2) and (4) and Article 81 subparag. 4 of the Act, and the instant disposition based on a different premise is unlawful. The Plaintiff’s assertion on this part is with merit.

3.In conclusion, the part concerning Articles 12 (1) and 79 of the collective agreement of this case among the plaintiff's claims of this case is dismissed as it is without merit, and the part concerning Article 13 (1) of the collective agreement of this case shall be quoted for the reasons. It is so decided as per Disposition.

Presiding Judge, Judge

Judges Kim Jae-hwan

Judges Kim Jin-han