(영문) 서울행정법원 2014.9.25. 선고 2013구합31608 판결

The Defendant’s corrective order against the Plaintiff on October 29, 2013 regarding the collective agreement concluded between the Plaintiff and the two Korea branches shall be revoked.

Reasons

1. Details of the corrective order;

A. The Plaintiff is an industrial trade union established for workers engaged in affairs related to the financial industry and other office services.

B. On August 22, 2012, the Plaintiff entered into a collective agreement with B Korea Branch (hereinafter referred to as “B Korea Branch”) on the attached table (hereinafter referred to as “instant provision”). On September 11, 2013, the Defendant notified the Plaintiff that the instant provision should be submitted by October 31, 2013 when issuing a corrective order pursuant to Article 31(3) of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the “Trade Union Act”) on the ground that the instant provision was illegal (hereinafter referred to as “instant first corrective order”).

D. On October 17, 2013, the Plaintiff served the first corrective order of this case, and asked the Defendant questions with the content indicated below.

1. The plaintiff is subject to the first corrective order from the defendant, but there is a serious difference in the interpretation of the law related to the full-time officer provision of the trade union amended in 2010, and therefore it is difficult to accept the corrective order. Although the defendant is aware of Article 24-2 of the Trade Union Act as a mandatory provision, the plaintiff is interpreted as a voluntary provision, unlike the defendant's assertion, it is not interpreted as unfair labor practice because the provision of Article 24-2 is not effective. The limit of working hours in Article 24-2 is not defined as the total limit of working hours in cases where the full-time officer uses the limit of working hours. This difference is not limited to the plaintiff, but from the time of the revision of the Trade Union Act to the time of the amendment of the Trade Union Act, the labor union and management system, and labor law scholars. The difference in this interpretation of the law is already disputed in the lawsuit to the same effect. In accordance with the decision of the Supreme Court, the plaintiff's decision whether to correct the above administrative disposition is necessary or not.

The notification must be made and the notification should be made clearly so that the corrective order itself can bring about the illegality and illegality.

E. On October 29, 2013, the Defendant issued the same corrective order with the same content to the Plaintiff, and notified that the submission period was extended by November 15, 2013 (hereinafter “instant secondary corrective order”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 4, and 5, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

Ex officio, the determination of the legality of the lawsuit of this case (the plaintiff and the defendant did not dispute the disposition of this case under the premise that the second corrective order of this case is a new disposition, but the existence of a disposition subject to appeal litigation is an ex officio matter as a litigation requirement, and cannot be a confession).

The fact that the plaintiff notified the plaintiff of the first corrective order of this case that the defendant ordered the correction of this case and submitted the result of implementation to the plaintiff for a certain period of time after questioning about the nature of the first corrective order of this case, and the plaintiff refused to comply with the second corrective order of this case, and notified the second corrective order of the same contents as the result of the extension of the deadline for submission. Thus, the plaintiff's duty of correction under the plaintiff's Trade Union Act was occurred as the first corrective order of this case and the second corrective order of this case was not a new corrective order of this case, and it is merely a notification of the extension of deadline for submission. Therefore, the second corrective order of this case cannot be viewed as a new disposition separate from the first corrective order of this case, and it does not directly affect the rights and obligations or legal status of the people (see, e.g., Supreme Court Decision 97Nu119, Jul. 13, 199).

Therefore, the lawsuit of this case seeking revocation of the second corrective order of this case is unlawful due to its lack of applicable qualification.

3. Family judgment

In light of the purport of the corrective order, the submission deadline may be the content of the obligation imposed on the party concerned, and the second corrective order of this case shall be judged on the merits under the assumption that the second corrective order of this case may be subject to appeal litigation for reasons of the fact that the first corrective order of this case may be subject to appeal litigation even if the submission deadline is extended repeatedly.

(a) Articles 12 (2) and 13 (2) of the collective agreement;

1) The contents of the clause

Article 12 (Ex Officio Transfer of Cooperative Activities)

2. Where the full-time employee determined by paragraph (1) is selected to be the full-time employee of a superior organization of the union, an additional full-time employee shall be recognized from the date of the predecessor’s term of office; Provided, That the revocation of the full-time employee shall be immediately cancelled.

2.The full-time part of paragraph 1 of this Article may be assigned to a superior labor organization and may be assigned to his activity, and the treatment in respect thereof shall be limited to paragraph 1 of this Article.

2) Defendant’s ground for corrective order

① Where the former part of each provision refers to the former part of a trade union under Article 24(1) and (2) of the Trade Union Act, the payment of wages to the full-time officer of the trade union is in violation of Article 24(2) and Article 81 subparag. 4 of the Trade Union Act. <2> Where the former part of each provision refers to a person exempted from working hours under Article 24(4) of the Trade Union Act, Article 11-2 of the Enforcement Decree of the Trade Union Act, and where the number of union members is 460 in total, 5,000 hours per year (two total number of union members may be used (4,160 hours(4,40 hours x 52 hours x 52 hours)), and where the former part of a trade union is elected to the former part of a superior organization, it is against Article 24(2) and Article 81 subparag. 4 of the Trade Union Act to recognize additional one person exempted from working hours on account of a superior organization’s activities not subject to exemption.

3) Determination

A) In light of the contents of Article 12(3) of the instant collective agreement, it is reasonable to view that the full-time employee under each of the above provisions is a person exempted from working hours under Article 24(4) of the Trade Union Act, not a full-time employee of the trade union under Article 24(1) and (2) of the same Act,

B) Article 24(4) of the Trade Union Act, which provides for the exemption of working hours, intends to exceptionally provide support for labor-management relations by exceptionally taking into account the characteristics of the labor-management relations by business or workplace. Thus, it is reasonable to view that the scope of union activities subject to exemption of working hours is limited to the labor-management activities of branches or sub-branches of a company-level labor union, such as a company unit trade union or an industrial and regional trade union, and does not apply to workers supporting labor union or union members by business or workplace outside a place of business. Each of the above provisions does not limit working hours to the scope of permission of exemption of working hours to the Plaintiff’s activities, but it is deemed that the Plaintiff is ordinarily working for more than that of a superior organization. Furthermore, if the former part of the Plaintiff is elected as a former part of a higher organization, it is difficult to recognize the first part of the former part of the labor-management relations so that wages exceeding the limits of exemption of working hours, and thus, it does not affect the conclusion of Article 24(4) and Article 81 subparag. 4 of the Trade Union Act.

4) Sub-determination

The part regarding the corrective order of this case on the ground that each of the above provisions violates Article 24 (4) and Article 81 (4) of the Trade Union Act is lawful.

(b) Articles 14 and 18 of the collective agreement;

1) The contents of the clause

Article 14 (Activities of Cooperative at Work Hours) Company 1 shall recognize the matters pertaining to meetings, education, events, associations, and other matters, which are designated by the chairman of the company, when a member of the union, intends to participate in and inside and outside of Korea by the chairman of the company: Provided, That the company shall notify in advance the company of such matters related thereto. 2. The company shall not recognize that a member of the union, designated by the chairman of the company, has served for the hours and days during which he/she was unable to serve as a union activity and that he/she has served as a union activity and treat him/her disadvantageously.

2) Although it is possible for the Defendant to pay working hours within the limits of working hours, each provision stipulates that working hours of a union member, etc., designated by the chairman, shall be treated uniformly and paid. As such, it is likely that the said union member may escape from the working hours system by allowing the said union member to pay for the activities falling under the ordinary scope of work of the time-offer. Thus, Article 24(4) and Article 81 subparag. 4 of the Trade Union Act are violated.

3) Determination

A) Articles 24(4) and the former part of Article 81 subparag. 4 of the Trade Union Act clearly stipulate that each of the provisions of the former part of the Trade Union Act shall be defined as “worker” instead of “full-time officer”. In addition, even if there is no full-time officer or even if there is a full-time officer, it may be necessary for a trade union to conduct paid union affairs with the consent of the employer from among its members. In addition, if Article 24(4) of the Trade Union Act is interpreted that the provision does not apply to a non-full-time officer, there arises unreasonable result that a worker who is not the full-time officer can conduct union activities in an unlimited paid manner without the limit of the exemption from working hours if he/she agrees with the collective agreement or the employer. Therefore, it is reasonable to deem that the exemption from working hours under Article 24(4) of the

B) Furthermore, an association activity of a person who is not designated as a time-off worker shall be limited to working hours, and in principle, wages shall not be paid if those persons are engaged in union activities during working hours. However, in light of the above provisions, it is difficult to view that the duty to be paid by the union members, etc. is distinguished from the business subject to time-off worker's work due to participation in various meetings, education, event, union-related matters, or other matters, or participation in or overseas business trip from other regions or overseas, due to union relations, and the fact that the union division and union members designated by the chairman recognized the work related to the union and recognized the work hours and paid wages by recognizing them as working hours for the time and number of days, it may be allowed to allow paid hours beyond the limit of time-off worker's work hours ( even if a worker was designated as a time-off worker, regardless of the specific purpose of use, actual required hours, etc., and thereby, it is consistent with the purpose of Article 48(1)4 of the Labor Union Act that introduced the basic provision to the effect of time-off provision.

4) Sub-determination

This part of the corrective order is legitimate on the ground that each of the above provisions violates Article 24(4) and Article 81(4) of the Trade Union Act.

4. Conclusion

If so, the lawsuit of this case is unlawful and thus dismissed, it is so decided as per Disposition.