A. Whether “the authority to negotiate on the conclusion of a collective agreement” under the main text of Article 31(1) of the Trade Union Act includes the authority to conclude a collective agreement (affirmative)

B. Whether the provisions of the collective agreement stipulated in the above Paragraph (a) to undergo a resolution of the general meeting of partners after the representative of collective bargaining prepared a collective agreement with an employer (affirmative)

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 authority to negotiate on the conclusion of a collective agreement or other matters with an employer or an employers' association for the worker or union member," and the term "right to negotiate" includes the authority to conclude a collective agreement according to the result of negotiations, in addition to the authority to conduct collective bargaining as

B. The fact that the representative or the delegated person of a trade union agreed on the contents of a collective agreement with an employer based on the results of collective bargaining and again requires a resolution at a general meeting of partners on whether the agreement is draft shall be deemed to have been adopted by a resolution of the general meeting of partners, by completely and comprehensively restricting the authority of the representative or the delegated person to conclude the collective agreement. Therefore, it violates the purport of Article 33(1

[Dissenting Opinion 1]

Article 33(1)3 of the Trade Union Act provides only the right to collective bargaining as a factual act, taking into account the autonomy, democracy, and peculiarity of the trade union oriented by the Constitution to guarantee workers’ rights and interests, and that Article 19(1)3 of the same Act provides that the members of a trade union shall have equal rights and obligations to participate in all matters of the trade union; and Article 22 of the same Act provides that the members of a trade union shall have equal rights and obligations to participate in all matters of the trade union; and in addition, the development of national economy through maintaining smooth relations between the labor and management, it is reasonable that a trade union shall determine a person who has the authority to conclude a collective agreement and have such person follow the resolution of the trade union general meeting before and after the conclusion

[Dissenting Opinion]

A. Article 33(1) of the Trade Union Act provides that the representative, etc. of a trade union shall have the general and abstract authority to negotiate and conclude a collective agreement. The collective agreement shall be conducted in accordance with the procedures and methods for collective bargaining and entering into a collective agreement; whether it can be restricted by the rules of the trade union or the decision of the general meeting of the trade union; whether it can be restricted to the extent; how it can be set up against the employer or the trade union; how the collective agreement entered into in violation of the restrictions can be effective; and how it can enter into an agreement that limits the power of the representative, etc. of the trade union under a collective agreement; and whether the above provision is a mandatory provision that prohibits the representative, etc. of the trade union from restricting any form of power to

B. In principle, it is not permissible for a trade union to unilaterally limit or fully restrict its power to negotiate collective agreements by the representative of a trade union or by a person delegated by a trade union to the extent that it does not go against the purport of the foregoing provision. However, it may be limited to the procedures or authority of the representative of a trade union, etc. to the extent that it does not go against the

Article 33(1) of the Trade Union Act

Twin Heavy Industrial Trade Union

Changwon market et al., Counsel for the defendant-appellee

Busan High Court Decision 91Gu1332 delivered on October 16, 1991

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, Article 66 of the collective agreement concluded on November 20, 190 between the plaintiff's trade union and the non-party Samsung Heavy Industries Co., Ltd. (hereinafter "the collective agreement of this case"), which was concluded on November 20, 199, provides that "All matters agreed upon in collective bargaining shall be prepared in writing, and all the negotiating members shall jointly sign the agreement according to the result of the general meeting of the union members." This provision provides that "this provision shall be governed by the rules of the union," and the defendant provided that Article 33 (1) of the Trade Union Act (hereinafter "the Act") shall be based upon Article 33 (1) of the Labor Union Act (hereinafter "the Act"), which provides that the representative of the trade union shall have the right to collective bargaining and sign the collective agreement. Thus, if the representative of the trade union concludes a collective agreement through collective bargaining with an employer, it shall not take effect notwithstanding the resolution of the general meeting of union members, and it shall not be deemed that the representative of the trade union or the person delegated from the trade union shall be deemed to have the right to sign collective agreement.

2. The main text of Article 33(1) of the Act provides that "the representative of a trade union or a person delegated by a trade union shall have the authority to negotiate on the conclusion of a collective agreement or other matters with an employer or an employer's organization for the trade union or union members." Here, the term "right to negotiate" shall be interpreted as including the authority to conclude a collective agreement in addition to the authority to negotiate collective bargaining as an act of fact. The reasons are as follows.

First, since a trade union is also a single association, it is natural in light of the legal principles of collective representatives that the representative of the union has the authority to conclude collective agreements on behalf of the union.

The main text of Article 33(1) of the Act provides that the right of collective bargaining (including the right to conclude collective agreements) may be delegated by a trade union in lieu of a representative or a representative, and its main meaning is that a person delegated by a trade union in addition to a representative of a trade union may have the right of collective bargaining (including the right to conclude collective agreements) in lieu of a representative.

Second, Article 33(1) of the Constitution provides that "workers shall have the right to independent association, the right to collective bargaining, and the right to collective action in order to improve working conditions." Here, the right to collective bargaining is interpreted to include the right to conclude collective bargaining as a result of collective bargaining not only the right to collective bargaining as an act of fact but also the right to conclude collective agreements with the aim of concluding collective agreements. In the latter case, collective bargaining is a right to collective bargaining that can achieve the objective only by factual act and to conclude collective agreements. In the latter case, collective bargaining is a right to collective bargaining, not only the right to negotiate and negotiate for the interests of union members, but also the right to conclude collective agreements in the name of a trade union according to the result of such other consultation. If a collective agreement is not concluded even though there is no right to negotiate collective bargaining but also the right to conclude collective agreements with the legal meaning of authority or right to conclude contracts on behalf of the parties.

Third, Article 33(5) of the Act provides that "the employer or employer's organization shall not refuse or neglect the conclusion of a faithful collective agreement with the representative of a trade union or a person delegated by a trade union without any justifiable reason." Article 39(3) of the Act provides that "any refusal or neglect of the conclusion of a collective agreement or other collective bargaining with the representative of a trade union or a person delegated by a trade union without any justifiable reason." According to these relevant provisions, the Trade Union Act assumes that the representative of a trade union or the delegated person of a trade union has the authority to conclude a collective agreement." The main sentence of Article 33(1) of the Trade Union Act supports the interpretation of the above provision, even if there is no provision of "the authority to conclude a collective agreement" as well as the provision of "the authority to negotiate with regard to the conclusion of a collective agreement or other matters."

Fourth, if there is no authority to conclude a collective agreement with a person with the authority to conduct collective bargaining, collective bargaining with an employer as the other party cannot be conducted smoothly, and as a result, it is likely that the collective bargaining authority itself is not of significance.

If an agreement is reached on wages and other working conditions as a result of the compromise and concession between the two parties, but such agreement can take effect only through a different decision-making procedure (resolution by the general meeting of the trade union), the employer should not be able to avoid the negotiation or negotiation with the unauthorized representative of the decision-making process, even if he/she is involved in the negotiation, submission of the last concession as a bona fide member even if he/she is participating in the negotiation, and it is difficult to criticize the employer that such negotiation, avoidance or neglect is without justifiable grounds.

Fifth, from the standpoint that it is impossible to recognize the right to conclude a collective agreement to the representative, etc. of the collective bargaining authority, the conclusion of collective agreement based on the company's formation formed in the involvement of the union members is a fundamental request to support collective autonomy, and if the collective agreement is granted to the representative, etc. of the union, it is not possible to check the enforcement department's malization or breach of trust and to undermine the independence and democracy of the union as a result.

However, when a trade union selects a representative or delegates the power to negotiate as prescribed by the rules, the union's independent and democratic operation is already realized, and the conclusion of a collective agreement significantly affects the rights and obligations of union members, and it cannot be said that the final decision-making of whether to conclude the collective agreement is made through a resolution of the general meeting of union members cannot be said to comply with such request. If the union members cannot trust their representatives, etc., they may replace the representative, etc., or delegate only the authority to conduct collective bargaining for concluding the collective agreement to other negotiating representatives, as it is, according to the procedures prescribed by the rules.

Finally, the collective agreement in this case provides that "the right to conclude a collective agreement shall be vested in the representative bargaining," and Article 58 of the Rules (Evidence A4) of the Plaintiff Union provides that "a collective agreement shall be concluded by the chairperson and the negotiating members shall be jointly signed according to the result of the general meeting of union members." Thus, it can be seen that the Plaintiff Union has a limitation that it shall undergo a resolution of the general meeting of union members prior to the conclusion of the collective agreement, but it does not deny the right to

3. Although a trade union is a single association, a trade union as a labor union in the power-based labor union is not an independent entity that leads to the establishment of an individual member's union, but a collective agreement has normative effect that determines the contents of each member's rights and obligations. Since the conclusion of a collective agreement is the most important decision-making of a trade union, the theory of group representatives' representative's in general property transaction relationship cannot be applied as it is and in light of the union's autonomy and democracy as stipulated in Article 33 of the Constitution and Article 14 of the Trade Union Act, it is necessary to review the opinion of the court below that the power to conclude a collective agreement held by the representative or the delegated person of a trade union can be restricted by the total of the union members

However, as stated in the instant collective agreement, the fact that the representative or the delegated person, after having agreed on the contents of the collective agreement with the employer as a result of collective bargaining, shall again undergo a resolution at a general meeting of union members with regard to whether the agreement draft is a matter of agreement, shall be deemed merely nominal by completely and comprehensively limiting the power to conclude the collective agreement. As such, it shall not be deemed that it violates the purport of Article 33(1) of the Act that provides for the authority to conclude the collective agreement by

4. If so, the collective agreement of this case, which requires a resolution of the general meeting of union members after preparing a collective agreement by mutual agreement with an employer, is in violation of the main sentence of Article 33 (1) of the Act, and therefore, the defendant's disposition of this case ordering the modification or supplementation of the collective agreement is legitimate. Thus, the judgment of the court below that the defendant's disposition of this case is unlawful on the ground that there is no illegality in the collective agreement of this case, is erroneous in the misunderstanding of legal principles as to the right to conclude

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench except for this case.

The dissenting opinion of Justice Yoon-tae is as follows.

The majority opinion argues that if the representative of a trade union concludes a collective agreement with an employer in accordance with the agreement, the collective agreement is lawful despite the resolution of the general meeting of the union members, and that the representative of the trade union has the authority to conclude the collective agreement regardless of the resolution of the general meeting of the union members, and that the trade union cannot impose any restriction on the collective agreement so concluded by the resolution of the general meeting.

However, such a view is not only reasonable in the provisions of the Constitution that guarantee the fundamental rights of workers’ right to life, but also that it undermines the independence and democracy of labor unions, which are based on the basic ideology of the Trade Union Act. The Majority Opinion argues as its reasoning, Article 33(1) of the Constitution and Article 33(1) and (5) and Article 39 subparag. 3 of the Trade Union Act.

Article 33(1) of the Constitution provides that "workers shall have the right to independent association, collective bargaining, and collective action to improve working conditions." This does not provide that workers shall have three such right to work, the parties to collective bargaining, or a person in charge of collective bargaining, and 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 with an employer or an employers' association on behalf of the trade union or union members," but it is evident that the provision provides that "the representative of a trade union or a person delegated by a trade union shall have the right to negotiate on the matters of the trade union or union members for the purpose of concluding a collective agreement, and it

As stated in the Majority Opinion, even if collective agreement is included in the concept of collective bargaining, it cannot be interpreted that the representative of a trade union has the right to collective bargaining and thus has the right to conclude collective agreement as a matter of course. This is because the term "Negotiation" here refers only to the act of bargaining, which is a factual act, and the contents of collective bargaining are not the contents of collective agreement. Thus, it cannot be a party to conclude collective agreement, which has the nature of legal act, as a matter of course, as a person in charge of collective

In addition, Articles 33(5) and 39 subparag. 3 of the Trade Union Act provide for the employer’s duty to faithfully comply with collective bargaining and sign collective agreements, and there is no difference in the above conclusion by imposing such duty on the employer regarding collective bargaining or collective agreements with the representative of a trade union. Here, the Majority Opinion argues that the representative of a trade union has the authority to sign collective agreements on behalf of a trade union in light of the legal principles of collective representatives.

However, a trade union is a special organization (Article 3 of the Trade Union Act) organized by workers who are the subjects of the three labor rights voluntarily and independently in order to maintain and improve the working conditions, promote the welfare of workers, and promote other economic status, and as long as the three labor rights under the Constitution are understood as the fundamental rights of workers’ survival, it may not be said that the theory of collective representatives in general property transaction relationship cannot be drawn up to the case of the representative of the trade union. Furthermore, since a collective agreement is directly related to the rights of life, such as working conditions, etc. of the union members, it is not easy to conclude that collective intentions should be specially reflected in the process

In this regard, the majority opinion emphasizes that, when a representative is elected or delegated by the rules of a trade union, the autonomous and democratic operation of a trade union has already been realized as a result of such election or delegation of the bargaining authority is contrary to the provisions of Article 14 of the Trade Union Act that provides for the independence and democracy of a trade union, and rather, it is more persuasive for the majority opinion that, prior to that, “If a collective agreement is concluded based on the formation of a trade union formed in the presence of a union member, it is the basic request to support collective autonomy, and the right to conclude a collective agreement is granted to the representative, etc. of a trade union, it is impossible to check the executive organ’s fishing or breach of trust, and thereby,

The Majority Opinion attempts to support the factual problem between labor and management. “If the representative of a trade union does not have the right to conclude a collective agreement as a matter of course, collective bargaining cannot be conducted smoothly. As a result, if the right to collective bargaining itself would not only be unreasonable, but also the agreement may take effect only through other decision-making procedures, such as a resolution of the general meeting of the trade union, even if the agreement is derived on the working conditions as a result of compromise and concession between the two parties, it is difficult for the employer to criticize that the agreement would not have any justifiable reason even if it would avoid or neglect the negotiation.”

However, despite the majority opinion’s criticism as seen earlier, the representative of a trade union is naturally bound to conclude a collective agreement regardless of the intention of the trade union, or the collective agreement so concluded may not be restricted by a resolution of the general meeting of the union. Rather, it should not be overlooked that the representative of a trade union, who has not been delegated with the right to conclude a collective agreement by a trade union, even if the representative of a trade union concludes a collective agreement unfavorable to workers in partnership with an employer and allows workers to observe the collective agreement without any choice but without any choice to do so.

Ultimately, considering the constitutional provisions that guarantee workers' rights and interests, the autonomy, democracy, and the unique nature of the trade union as seen earlier, Article 33(1) of the Trade Union Act takes into account and gives its representative, etc. only the right to collective bargaining as a factual act; Article 19(1)3 of the same Act provides that the members of a trade union have equal rights and obligations to participate in all matters of the trade union; Article 22 of the same Act provides that the members of a trade union have equal rights and obligations to participate in all matters of the trade union; and Article 22 of the same Act provides that a trade union shall have equal rights and obligations to participate in all matters of the trade union; and it is reasonable to ensure that a trade union determines a person who has the authority to conclude a collective agreement by a resolution of the general meeting and has those who have such authority follow

Finally, in order for a party member to revise the rules of employment at a disadvantage to workers, it requires the consent by the method of collective decision-making of a group of workers who was subject to the previous rules of employment, and one of the grounds is to amend the rules of employment applied to a group itself by obtaining the consent by collective decision-making, so that it would be effective for the group itself as a result of the amendment of the rules of employment (see Supreme Court Decision 77Da355 delivered on July 26, 197). However, it is added that it is about the rules of employment, but it can be invoked in this case as to the conclusion of a collective agreement which has a normative element.

The dissenting opinion of Justice Song Man-chul is as follows.

1. The representative of a trade union or a person delegated by a trade union (hereinafter referred to as the “representative, etc.”) to negotiate a collective agreement is ultimately aimed at concluding a collective agreement. Thus, such representative, etc. shall be deemed to have the authority to conclude a collective agreement in accordance with the result of the negotiation, as well as the negotiating authority of a collective agreement even if not separately delegated.

However, the provision of power to negotiate collective agreements under Article 33 (1) of the Trade Union Act (hereinafter referred to as the "Act") only provides that the representative, etc. of a trade union has a general and abstract authority to negotiate collective agreements, and that provision is a compulsory provision prohibiting the restriction on the power to conclude collective agreements in any form to the representative, etc. of a trade union, by conducting collective bargaining and concluding collective agreements through any procedure and method; whether it may be restricted by the rules of the trade union or the decision of the general meeting of the trade union; whether it can be restricted to any extent; how the collective agreement to be concluded in violation of such restriction can be set up against an employer or employers' association; how the collective agreement can be effective; and whether it can enter into an agreement that restricts the power of the representative, etc. of a trade union under

2. The collective agreement has normative effect that directly determines the criteria for the treatment of individual union members of a trade union (Article 36 of the Act). Thus, the actual subject of the collective agreement can be said to be a worker, and therefore, it can be said that the collective agreement should be concluded based on the intent of the union formed in the presence of the union members (Article 19(1)3 of the Act) and that it is a fundamental request for collective bargaining (Article 19(1)3 of the Act). Workers shall maintain their working conditions and check and control the collective bargaining or the conclusion of collective agreement by the representative of the trade union, etc., if necessary to ensure the independence and democracy of the trade union.

However, if the representative, etc. of a trade union who is engaged in collective bargaining has the authority to negotiate as a factual act and does not have the authority to conclude a collective agreement as a juristic act, the other party’s employer or employers’ association, as the majority opinion concerns, may interfere with reasonable and smooth collective bargaining without guaranteeing that the conditions for concluding the collective agreement are the union members’ will. As such, it is necessary to interpret that a person who becomes the representative of a trade union or is delegated by a trade union has the authority to conclude a collective agreement even in order to eliminate the anxiety of the employer or employers’ association, as a result, should be construed as

Therefore, it is reasonable to consider that the authority of the representative, etc. of a trade union is unilaterally restricted by the trade union and it is not permissible in principle if it is completely and comprehensively. However, if it is not so, it is reasonable to consider that the procedures or authority of the representative, etc. of a trade union can be limited to the extent that it does not go against the purport of the above provision.

3. As to this case, since the contents of the collective agreement of this case, which the plaintiff union and its employer concluded, are deemed to have a representative bargaining authority, this cannot be deemed to violate Article 33(1) of the Act. However, as the collective agreement provides that all the negotiating members jointly sign the collective agreement according to the result of the general meeting of union members, so that the collective agreement can be deemed to have restricted the right to enter into the collective agreement in the procedure of concluding the collective agreement by allowing all the negotiating members to enter into the collective agreement through approval or resolution of the general meeting of union members. However, this agreement does not unilaterally limit the trade union side, but does not intend to do so with the employer. The collective agreement is in principle that its original term of validity shall not exceed two years (one year) (one year) (Article 35 of the Act). According to the evidence No. 3 (Collective Convention), the collective agreement of this case shall be effective until August 31, 1992, and it shall not be deemed to have violated the purport of the provision of this collective agreement to the extent that it is unlawful.

The original working conditions shall be determined by the agreement of the workers and the employer, and the collective agreement shall be entrusted to the private autonomy of the parties, and it shall respect the matters agreed by the parties, except as otherwise prescribed by the law, if any, and if any, to enter into the collective agreement by any procedure and method.

4. In order to secure their independence and democracy, a union or its members may require the representative of collective bargaining, etc. to enter into an agreement with or to enter into a provisional agreement (provisional agreement) with the employer through a resolution of the general meeting and obtain the approval of the general meeting, or request the conclusion of the agreement which requires the approval of the general meeting. However, there is room for controversy as to whether the agreement is valid in case the representative, etc. and the user of the agreement disregards the agreement and enters into a collective agreement, but it is not questionable that the conclusion of the agreement or the conclusion of the collective agreement under such a method will be valid if the representative, etc., asked the general meeting (or representative general meeting) to enter into the collective agreement according to the result, or enter into a collective agreement with the approval of the general meeting as a requirement to take effect.

Therefore, without such agreement at the time of concluding individual collective agreements, it is thought that all the matters agreed in the following collective bargaining under the collective agreement as in this case should be prohibited as unlawful. If an employer does not want to sign collective bargaining or sign collective agreements in accordance with such procedures or methods, it may refuse to sign collective agreements, and if a collective agreement was concluded, it would be necessary to refuse such agreement at the time of the renewal of the following collective agreement.

Even if an employer has clearly accepted collective bargaining or collective agreement with a trade union without complying with such procedures or methods, it shall be deemed unlawful in violation of the main sentence of Article 33(1) of the Act, and it shall be reasonable to consider that the defendant's intervention should be modified, and it shall not be acceptable.

Chief Justice Kim Yong-ju (Presiding Justice) (Presiding Justice)