Whether a representative bargaining trade union can acquire the status of a representative bargaining trade union where a trade union which exists only in a business or a place of business has gone through the procedures of simplification of bargaining windows prescribed by the Trade Union and Labor Relations Adjustment Act and its Enforcement Decree (negative)

In light of Articles 5 and 29(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), Article 29-2(1) main text of Article 29-2(1) of the Trade Union Act, and Article 29-2(1) of the same Act, where multiple trade unions effectively resolve problems such as anti-competitive and conflict between trade unions or between a trade union and an employer that may arise in the event of exercising their independent collective bargaining rights, the promotion or purpose of the simplification system of bargaining windows to establish an efficient and stable collective bargaining system, Article 29-2(2) through (8) of the Trade Union Act that provides detailed procedures for the simplification of bargaining windows, Articles 14-2 through 14-9 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (hereinafter “Enforcement Decree of the Trade Union Act”), Article 14-10 of the Enforcement Decree of the Trade Union Act that provides for the maintenance period of status of the representative bargaining trade union, the simplification system of bargaining windows is planned to be a system designed by multiple trade unions to be established as a trade union.

Furthermore, according to the provisions of the Trade Union Act, the representative of a representative bargaining trade union determined through the procedures for the simplification of bargaining windows has the authority to conduct collective bargaining and conclude collective agreements with and on behalf of all bargaining demand trade unions or their members (Article 29(2)).

However, if there is no trade union other than the trade union, and there is no room to reflect the intention of another trade union, it is difficult to find out not only the concept of the representative bargaining trade union but also its own significance.

Ultimately, in full view of the purport or purpose of the simplification of bargaining windows as above, the structure or content of the simplification of bargaining windows system, and the concept of representative bargaining trade union, etc., it is reasonable to interpret that a trade union which has only existed in a business or business unit can not acquire the status of a representative bargaining trade union even if it has formally gone through the procedures prescribed by the Trade Union Act and its Enforcement Decree.

Articles 5, 29(1), and 29-2 of the Trade Union and Labor Relations Adjustment Act; Articles 14-2, 14-3, 14-4, 14-5, 14-6, 14-7, 14-8, 14-9, and 14-10 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act;

Constitutional Court en banc Order 201Hun-Ma38 Decided April 24, 2012 (HunGong187, 882)

Co., Ltd. (Bae, Kim & Lee LLC, Attorneys O Sang-won, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Metal Trade Union

Seoul High Court Decision 2015Nu57071 decided March 23, 2016

The appeal is dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. According to each provision of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an employee may freely organize a trade union or join it (Article 5), and a trade union may demand an employer to conduct collective bargaining on behalf of its members (Article 29(1)). However, where a trade union exists in a single business or workplace unit in more than one trade union regardless of its structural form, each trade union shall, in principle, determine a representative bargaining trade union in accordance with the procedures for simplification of bargaining windows and request an employer to conduct collective bargaining (main sentence of Article 29-2(1)).

The main purpose and purpose of the Trade Union Act is to establish an efficient and stable collective bargaining system by effectively resolving the problems such as rebuttals and conflicts between a trade union or between a trade union and an employer that may arise when multiple trade unions exercise their independent collective bargaining rights (see Constitutional Court en banc Decision 2011Hun-Ma38, Apr. 24, 2012).

Meanwhile, the Trade Union Act (Article 29-2(2) through (8)) and the Enforcement Decree pursuant to the delegation thereof (Article 14-2 through 14-9) stipulate detailed procedures for the simplification of bargaining windows. This is largely composed of the procedures for the determination of bargaining trade unions specifying a trade union which intends to actually participate in collective bargaining among multiple trade unions and the procedures for the determination of a representative bargaining trade union which determines a representative bargaining trade union again from among such multiple bargaining trade unions.

In addition, the Enforcement Decree of the Trade Union Act (Article 14-10) stipulates only cases where a representative bargaining trade union becomes a representative bargaining trade union guaranteed the maintenance period of such status by setting the maintenance period of the representative bargaining trade union, (i) where all the representative bargaining trade unions voluntarily set a representative bargaining trade union (Article 29-2(2) of the Trade Union Act), (ii) where a trade union consisting of a majority of the whole members of a trade union, or two or more trade unions constitute a majority of all members by delegation, alliance, etc. (Article 29-2(3) of the Trade Union Act), (iii) where a bargaining trade union requesting a negotiation forms a joint bargaining delegation autonomously (Article 29-2(4) of the Trade Union Act), (iv) where a Labor Relations Commission determines a joint bargaining delegation by taking into account the ratio of members at the request of a trade union (Article 29-2(5) of the Trade Union

In light of this, the simplification system of bargaining windows is designed in cases where multiple trade unions are determined as bargaining trade unions, and it is necessary to select all bargaining trade unions again among them, unless there are special circumstances.

Furthermore, according to the provisions of the Trade Union Act, the representative of a representative bargaining trade union determined through the procedures for the simplification of bargaining windows has the authority to conduct collective bargaining and conclude collective agreements with and on behalf of all bargaining demand trade unions or their members (Article 29(2)).

However, if there is no trade union other than the trade union, and there is no room to reflect the intention of another trade union, it is difficult to find out not only the concept of the representative bargaining trade union but also its own significance.

Ultimately, in full view of the purport or purpose of the simplification of bargaining windows as above, the structure or content of the simplification of bargaining windows system, and the concept of representative bargaining trade union, etc., it is reasonable to interpret that a trade union which has only existed in a business or business unit can not acquire the status of a representative bargaining trade union even if it has formally gone through the procedures prescribed by the Trade Union Act and its Enforcement Decree.

2. citing the reasoning of the judgment of the first instance, the lower court determined that the Intervenor’s Intervenor (hereinafter “ Intervenor”)’s refusal of the Intervenor’s demand for collective bargaining in concluding a collective agreement in 2014 with another trade union that became final and conclusive as a representative bargaining trade union through the procedures for the simplification of bargaining windows with the Plaintiff and conducted collective bargaining and concluded collective agreements in 2013 did not constitute unfair labor practices in relation to the Intervenor, since the Intervenor’s trade union that existed in the Plaintiff’s workplace at the time of concluding the collective agreement in 2013 was the presence of the Intervenor.

Examining the reasoning of the first instance judgment cited by the lower court in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the procedures for simplification of bargaining windows or the status of a representative bargaining trade union (Article 29-2(1) of the Trade Union Act) and unfair labor practices of refusing collective bargaining (Article 81 subparag. 3 of the Trade Union Act), contrary to what is alleged in the grounds of appeal.

In addition, the allegation in the grounds of appeal purporting to point out the misapprehension of the legal principles as to the maintenance period of the status of the representative bargaining trade union (Article 14-10 of the Enforcement Decree of the Trade Union Act), is justifiable as long as the court below's decision denying the status of the representative bargaining trade union of the intervenor is justifiable, the legitimacy of the decision

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the intervenor, and the remainder is assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)