(영문) 울산지방법원 2016.5.12.선고 2015구합6143 판결

On August 3, 2015, the defendant's disposition of permission for self-sufficiency in domestic labor is revoked against a third party intervenor (hereinafter referred to as "participating").

Reasons

1. Details of the disposition;

A. The Plaintiff is a unit trade union for each industry, the establishment of which was reported on November 1, 1990, and 20. 920 workers engaged in loading and unloading in a port, etc. located in Ulsan-si, and is affiliated with the Korea Federation of Port Trade Unions affiliated with the Korea Federation of Trade Unions. The Plaintiff has been affiliated with the Korea Federation of Trade Unions affiliated with the Defendant as a daily worker upon obtaining permission from the Defendant for labor supply business (the latest date of permission, July 31, 2015).

B. On December 2, 2014, a trade union report was completed on December 2, 201, and on December 22, 2014, the Defendant filed a new application for the labor supply business with the Defendant pursuant to Article 33 of the Employment Security Act. However, on January 29, 2015, the Defendant rendered a part of the Intervenor’s refusal of the Intervenor’s application on the grounds that, if a labor supply business entity is additionally permitted to engage in labor supply business on January 29, 2015, the excessive supply of human resources is likely to occur, and it is anticipated that it would have difficulty in reducing working

C. On April 14, 2015, an intervenor dissatisfied with the above disposition and filed an administrative appeal with the Central Administrative Appeals Commission. On July 21, 2015, the Central Administrative Appeals Commission rendered a decision to revoke the Defendant’s new permission of labor supply business with respect to the Intervenor, on the grounds that, considering the number of the Intervenor’s union members, the quantity of Ulsan Port cargo, the monthly ordinary wage of Plaintiff members, and the average number of loading and unloading operations, permission of the Intervenor’s application is less likely to decrease working conditions, and it can prevent harm caused by the existing exclusive and exclusive labor supply system.

D. On August 3, 2015, the Defendant rendered a new permission disposition for domestic labor supply business to the Intervenor (hereinafter “instant disposition”) in accordance with the purport of the said ruling.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, 13, Eul evidence 1 to 5 (including additional evidence) and the purport of the whole pleadings

2. The plaintiff's assertion

Before the disposition of this case, the plaintiff supplied members exclusively belonging to harbor transport enterprises in Ulsan District as daily workers, and individually determined wages through a collective agreement according to government notice. However, due to the disposition of this case, multiple workers suppliers would competitively reduce the cost of loading and unloading in Ulsan District, and due to the recent decline in the volume of general cargo in Ulsan District, the demand for human resources is also reduced every year. In addition, the above disposition will eventually result in the decline in the working conditions of harbor unloading workers in Ulsan District and the unstable employment relationship.

The Intervenor already planned to recruit members from 32 to 200 at the time of the permission of this case, and expressed pressure to reduce loading and unloading costs to 80% and realize such concerns.

Therefore, the instant disposition, which the Defendant did not properly consider the aforementioned circumstances, is unlawful as it deviates from and abused discretion.

3. Determination on the legitimacy of the instant disposition

(a) Relevant statutes;

It is as shown in the attached Form.

B. Nature of the instant disposition

Article 33 of the Employment Security Act prohibits an unauthorized labor supply business, and when the head of an employment security office permits a domestic labor supply business, he/she shall decide whether to grant permission by comprehensively taking into account the scope of the labor union’s business, the status of the supply and demand of human resources by region and occupation, the maintenance of stability in the employment relationship, etc. Therefore, the determination of whether to grant permission for the labor supply

In full view of the following circumstances acknowledged by the purport of the entire pleadings in each of the aforementioned facts and evidence as seen earlier, evidence Nos. 4, 6, 5, and 5, the necessity and suitability of the instant disposition is recognized, and further, it is difficult to view that the balance between the interests and disadvantages arising from the instant disposition has been lost, and therefore, it cannot be deemed that there was an abuse of discretion.

(1) The purpose of the Employment Security Act is to promote the employment security of workers and contribute to the balanced development of the national economy by providing all workers with an opportunity to find a job in which they may develop and display their individual ability, and by supporting the smooth supply of and demand for the necessary labor force in each industry in cooperation with the government and the private sector (Article 1). The purport of the Employment Security Act, which requires the permission of the Minister of Employment and Labor to operate a labor supply business prescribed in the Employment Security Act, lies in preventing any infringement of the interests of workers, such as taking a profit-making profit by participating in the employment of workers or taking wages, etc. (see, e.g., Supreme Court Decision 94Do1779, Oct. 21, 1994). Otherwise, the purpose of the Employment Security Act is not to have a labor supply business operator who has obtained the permission form

② Maintenance of exclusive and exclusive labor supply business takes place as a result of unnecessary port costs increase, reduction of port service quality, and weakening workers’ status. On the other hand, conflicts or confusions that may arise due to permitting multiple labor supply business pointing out by the Plaintiff may arise from the resistance against the loss of exclusive status that the Plaintiff has enjoyed, and thus, there is no substantial demand for public interest to grant continued exclusive status to the Plaintiff in order to avoid such conflict or confusion.

③ If multiple trade unions permitted to engage in labor supply business exist, the loading and unloading business owner may enter into a labor supply contract with the worker supply business under more free and reasonable conditions. On the contrary, workers can also join the trade union that presents the aforementioned conditions and protect their rights and interests. As such, through fair competition between the Plaintiff and the Intervenor, it is ultimately possible to improve the order of labor supply, improve the quality of the harbor logistics industry, and promote the stable status of workers.

④ The number of the Intervenor’s union members is merely 32 and 3.4% of the total number of workers engaged in the port loading and unloading business in Ulsan-do, and the period of permission is limited to 3 years. As such, even if the part of the Intervenor’s labor supply business that the Intervenor seeks to operate after the permission of this case is detrimental to the public interest, it may be handled by means of denying administrative guidance or renewal of permission. Furthermore, even if the number of the Intervenor’s union members is more than the above 32 members, as alleged by the Plaintiff, it is the result of free choice of workers, and thus, it cannot be considered as grounds for non-permission.

⑤ Except for the year 2013, the volume of ordinary cargo used at Ulsan Port has increased every year from 2009 to 2015 (34,672,319 tons, 35,301,624 tons in 2010, 37,796 tons in 2011, 37,796 tons in 38,770,896 tons in 2012, 36,881,773 tons in 2013, 37,645, 963 tons in 2014, 38,430, 641 tons in 205, 38, 430, 641 tons in 209, 35, 2010, 35, 2067, 2074, 75, 207, 207, 75, 207, etc. of the Plaintiff’s supply and unloading workers.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.