The legislative intent and legal nature of the proviso of Article 32(1) and (2) of the Trade Union and Labor Relations Adjustment Act and the proviso of paragraph (3) of the same Article, which stipulate the termination right to the collective agreement, which restrict the validity of the collective agreement

Article 32(1) and (2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) limits the term of validity of a collective agreement to two-year period, which violates the purpose of maintaining appropriate working conditions through a collective agreement and promoting stability in labor-management relations, by restricting the term of validity to a certain extent and regulating the term of validity of a collective agreement so that it can be unjustly restricted by the parties because it is difficult to adapt to changes in social and economic conditions so that the term of validity of a collective agreement is too long, and thus, it goes against the purpose of maintaining appropriate working conditions through a collective agreement and promoting stability in labor-management relations.

In addition, the proviso of Article 32(3) of the Trade Union Act provides that if a new collective agreement is not concluded even after the expiration of the term of validity of the collective agreement, the former collective agreement shall continue to exist until the new collective agreement is concluded, as so agreed, and one of the parties shall be notified to the other party at least six months prior to the date on which the agreement is to be terminated, so that the former collective agreement may be terminated by notifying the other party of the fact that the former collective agreement is to be terminated. This is to ensure that the parties may escape from long-term detention

In full view of the contents, legislative purport, etc. of the above provisions, it is not permissible to exclude the application of the proviso of Article 32(1) and (2) of the Trade Union Act, which limits the validity of a collective agreement, or the proviso of Article 32(3) of the Trade Union Act, which provides for the termination right of a collective agreement, from the nature of both compulsory provisions, such as prohibiting the termination right

Article 32 of the Trade Union and Labor Relations Adjustment Act

Supreme Court Decision 2012Da71138 Decided October 29, 2015 (Gong2015Ha, 1745)

National Metal Trade Union (Law Firm Woo, Attorneys Choi Du-pop et al., Counsel for the defendant-appellant)

The Director General of the Daejeon Regional Employment and Labor Office

Daejeon High Court Decision 2012Nu483 decided January 10, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion of misapprehension of legal principles as to the provision of facilities and convenience

Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) prohibits “the act of an employee controlling or intervening in the organization or operation of a trade union and the act of providing wages to the full-time officer of a trade union or assisting the operation expenses of a trade union” as an unfair labor practice. In the proviso, “the act of allowing an employer to conduct the activities under Article 24(4) during working hours, the act of allowing the employee to do so, the act of contributing funds to the employee’s welfare fund or for the prevention, relief, etc. of economic inequality and other re-elections, and the offer

In full view of the contents of the above provision and the legislative purport of the provision related to the Trade Union Act that prevents an employer from being economically subordinate or melted by a trade union, and securing the independence of a trade union, the act of subsidizing operating expenses regularly or regularly conducted beyond the permissible scope pursuant to the proviso to Article 81 subparag. 4 of the Trade Union Act shall be deemed as an unfair labor act prohibited under the main text of Article 81 subparag. 4 of the Trade Union Act, just as the act of subsidizing wages to the full-time officer of the trade union, and even if the operating expenses were the result of the trade union’s active demand or strike, it cannot be viewed differently (see Supreme Court Decision 2012Du12457, Jan. 28,

The lower court determined that the Defendant’s corrective order is lawful, inasmuch as the provision of each of the instant facilities and convenience provisions (Article 12 of the Nake collective agreement, etc.) that the employer provides vehicles, oil expenses, etc. to a trade union and bears the expenses for the management and maintenance of the office of the trade union (Article 12 of the Nake collective agreement, etc.) refers to the subsidization of operating expenses corresponding to unfair labor practices as prescribed by the main sentence of Article 81 subparag. 4 of the Trade Union Act. In light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine

2. As to the assertion of misapprehension of legal principles concerning the provision restricting the termination of collective agreement

In Article 32(1) and (2) of the Trade Union Act, limiting the term of validity of a collective agreement to two years means that it goes against the purpose of maintaining appropriate working conditions through a collective agreement and promoting stability in labor-management relations by limiting the term of validity to a certain extent and adjusting the contents of a collective agreement in a timely and concrete manner, because it is against the purpose of maintaining appropriate working conditions and promoting stability in labor-management relations.

In addition, the proviso to Article 32(3) of the Trade Union Act provides that if a collective agreement has not been concluded even after the expiration of the term of validity thereof, the former collective agreement shall continue to exist until the new collective agreement is concluded, as well as the parties may terminate the former collective agreement by notifying the other party of the fact six months prior to the date on which the said collective agreement is to be terminated. This is to ensure that the parties may escape from long-term detention in accordance with the legislative intent that restricts the term of validity of the collective agreement, and to urge the parties to enter into a new collective agreement (see, e.g., Supreme Court Decision 2012Da71138, Oct. 29, 2015).

In full view of the contents and legislative purport of the above provisions, the proviso of Article 32(1) and (2) of the Trade Union Act or the proviso of Article 32(3) of the Trade Union Act, which provides the termination right of a collective agreement, which limits the term of validity of the collective agreement, is considered to be a mandatory provision in its nature, and thus, it is not allowed to exclude the application of the proviso, such as prohibiting the termination right of

In the same purport, the court below is just in holding that the restriction on the right to terminate each collective agreement of this case is against the proviso of Article 32 (3) of the Trade Union Act, which is a mandatory provision, because the provision of this case limits or deprives the right to terminate a collective agreement after the expiration of the term of validity by excluding the possibility of termination of the collective agreement from the source. There is no error

3. As to the assertion of misapprehension of the legal principles as to the provision of one-day negotiating party

The court below rejected the plaintiff's assertion that the defendant's corrective order should be revoked on the ground that the provision of each of the instant flexible negotiating parties (Article 1, etc. of the collective agreement for oil companies, etc.) of this case, which is the content that "only the plaintiff who has directly concluded a collective agreement with the employer as the unit trade union for each industry-level trade union, is the only labor organization that can conduct collective bargaining and does not recognize any other labor organization)" may infringe upon the workers' freedom to form and join the trade union and the right to collective bargaining, etc.

In light of the language and records of the collective agreement at the time of the original adjudication, such determination by the court below is justifiable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

4. Conclusion

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

Justices Kim So-young (Presiding Justice)