(영문) 서울행정법원 2017.6.9. 선고 2016구합78059 판결

The disposition of revocation of certified labor affairs consultant registration rendered by the Defendant to the Plaintiff on August 1, 2016 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff acquired the qualification of certified labor affairs consultant on September 9, 2008, and served as the representative member of the labor safety corporation B.

B. The Defendant: (a) provided guidance and consultation on unfair labor practices prohibited under Article 81 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) to the Plaintiff on August 26, 2016 by applying Article 20(1)6 of the Certified Public Labor Attorney Act, on the ground that “the Plaintiff violated Article 13 of the Certified Public Labor Attorney Act, while consulting on the improvement of labor-management relations of C Co., Ltd. (hereinafter “C”); (b) applied Article 20(1)6 of the Certified Public Labor Attorney Act to the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The Plaintiff entered into a consulting contract with C on November 201, 2014, and prepared Q-P scenarios, and suspended the preparation of scenarios. The Plaintiff sent Q-P scenarios, which was being drafted on November 2014, to D for reference. However, on December 2014, the Plaintiff agreed to abolish the scenarios at the request of Scman for early cancellation of the consulting contract with C on December 2014, and thereafter, the Plaintiff was no longer involved in C’s labor-management issues, and thus, the result of the advice made by the Plaintiff should be deemed as “defluence”.

In addition, C was planning a violation of the Trade Union Act, from October 2014, prior to the delivery of the scenario from the Plaintiff, to establish a new labor union by employing new employees, etc., and terminated the consulting contract by judging that the scenario is not particularly helpful. Since C’s violation of the Trade Union Act is different from the scenario, there is no causation between the Plaintiff’s preparation and delivery of the scenario and C’s violation of the Trade Union Act.

Therefore, the Plaintiff cannot be deemed to have provided guidance and counseling to C in violation of Article 81 subparagraph 4 of the Trade Union Act, so there is no ground for the instant disposition.

2) A deviation from or abuse of discretionary power

Even if the grounds for the disposition of the instant case exist, the Plaintiff’s act of preparing and delivering the scenario cannot be deemed to have infringed upon C workers or users’ independent decision-making, and the Plaintiff and C agreed to terminate the consulting contract and abolish the scenarios. The Plaintiff did not participate in the violation of the Trade Union Act by C, and C did not participate in the violation of the trade union law.

In light of the fact that the Plaintiff violated the Trade Union Act and the Plaintiff did not receive contingent fees from C, etc., the possibility of criticism against the Plaintiff was not significant, while the Plaintiff suffered a significant economic loss and disadvantage that the Plaintiff cannot re-register for at least three years, and thus, the instant disposition was erroneous in the misapprehension of discretionary authority as to a disciplinary decision.

B. Relevant statutes

Attached Form 1 is as shown in the relevant statutes.

C. Determination

1) Whether there is a ground for disposition

A) According to Article 81 Subparag. 4 of the Trade Union Act, an employer may not control or intervene in the organization or operation of a trade union (hereinafter referred to as “unfair labor practice”). Here, “control” refers to an employer’s leading influence on the exercise of the right to organize, operate, etc. the trade union, thereby deciding on the decision-making of the trade union. The intervention does not reach the degree of control, but does not interfere with, and interfere with, the independent activities of the trade union and exert influence on the decision-making.

Meanwhile, Article 20 (1) 6 and Article 13 (1) 3 of the Certified Public Labor Attorney Act provide that "the Minister of Employment and Labor may take disciplinary action according to a resolution of the Certified Public Labor Attorney Disciplinary Committee if the certified public labor attorney provides guidance, counseling, or other similar actions in violation of the Acts and subordinate statutes." <1> Although the certified public labor attorney may provide guidance, counseling, which does not reach the degree of infringement on autonomous decision-making by workers or employers, he/she may provide guidance, counseling, which does not exceed the scope of such guidance, counseling, or consultation which does not constitute a violation of the above Acts and subordinate statutes. <2> Articles 2 (1) 3 and 12 (1) of the Certified Public Labor Attorney Act No. 1210, Feb. 3, 2000>

B) In full view of the purport of the entire pleadings, the following facts are recognized in each entry of Gap evidence Nos. 2 through 8, Eul evidence Nos. 1 through 7 (including branch numbers, if any).

(1) On November 5, 2014, B, a labor safety corporation, the Plaintiff’s representative member, entered into a consulting agreement with C on November 5, 2014, providing labor management diagnosis, improvement, establishment, etc. of labor-management relations, six months from November 5, 2014 to April 30, 2015, the first one month from the date of consultation, the contract amount of KRW 50 million (excluding value-added tax; hereinafter the same shall apply), and 40 million from February to six months (hereinafter referred to as “instant consulting agreement”).

(2) In accordance with the instant consulting agreement, the Plaintiff employs 60 new members and is among them.

In depth, Q-P scenarios (main contents are as shown in attached Form 2; hereinafter referred to as “instant scenarios”) established under Article 20 and sent them to C around November 25, 2014, and D reported them to C’s representative director E. After D’s request, the Plaintiff prepared and provided D with “K-P scenarios, supplementing the details of the major items of the instant scenarios at D’s request.” (3) The instant scenarios are similar to the contents of the “emergency management plan already prepared by D,” and the Plaintiff demanded termination of the instant consulting contract through D through D on the ground that there is no need to maintain the instant consulting contract, and thereafter, the Plaintiff did not provide additional services under the instant consulting contract. The Plaintiff received the value-added tax payment from the first service contract on December 3, 2014 (including the value-added tax on December 5, 2014).

(4) Meanwhile, on November 25, 2014, F employees affiliated with C, established a trade union around November 25, 2014, joined a democratic trade union, and entered into a metal trade union affiliated with C, and accordingly, the instant scenario scheduled on December 24, 2014 as the date of conducting a lock-out by C was not realized. However, on December 29, 2014, E, etc. was also employed on the condition that 13 persons from police officers, 60 new employees, including 19 former employees, should not participate in or withdraw from Article 1.

(5) In addition, around February 2015, D reported "PLN" prepared by referring to the scenario in this case to E, and thereafter, E, etc. was engaged in unfair labor practices, such as allowing 52 new employees employed pursuant to the above 60 PLN to join the 20 union. (6) The prosecutor of the Incheon District Prosecutors' Office in Daejeon District Prosecutors' Office, in collusion with E, D, etc. to employ 60 new employees in collusion with the Plaintiff for employment, and violated the Trade Union Act by participating in the organization operation of the trade union in the manner of paying activity expenses under Article 20.4 of the Trade Union Act, but it is difficult to recognize that the Plaintiff provided the instant scenario in the instant case to C, in collusion with the Plaintiff.

C) According to the facts acknowledged earlier and the overall purport of the pleadings, it is reasonable to view that the Plaintiff, by preparing and submitting the scenarios in this case pursuant to the instant consulting agreement, was engaged in guidance and consultation with the employer to control, encourage, or encourage the subordinate workers to intervene in the organization or operation of a trade union. This constitutes a case where the Plaintiff provided guidance and consultation on unfair labor practices prohibited under Article 81 subparag. 4 of the Trade Union Act. Thus, the grounds for the instant disposition are acknowledged regardless of whether C engaged in unfair labor practices according to the instant scenarios. The Plaintiff’s assertion on the different premise is without merit.

(1) The plaintiff suggested specifically the strategy to weaken the existing labor union's ability by transmitting the scenario of this case where "the second union members will acquire the status of representative labor union" through new recruitment and organizing in C, inducement of strike to the existing labor union, lock-out, and new number of union members, selective rehabilitation of union members, large-scale disciplinary action against union members, civil and criminal complaints.

(2) After receiving the instant scenario from the Plaintiff, C paid all of the service charges of KRW 55 million (the first one-month service charges) due to the creation and provision of the instant scenarios to the Plaintiff, D also reported “normal PLN” prepared by referring to the instant scenarios to E. Since C continued to keep the instant scenario, it cannot be deemed that the instant scenario was destroyed.

(3) Even if the Plaintiff did not provide additional services since 2015 as the consulting contract of this case was terminated, and it did not participate in C’s unfair labor practices, it is deemed that the Plaintiff had delivered the scenario of this case on November 2014, thereby guiding the act in violation of the law and regulations.

After the counseling act is completed, the above guidance and counseling act is not deemed to have existed.

(4) Meanwhile, even though a non-prosecution decision was made against the Plaintiff on the charge of violating the Trade Union Act, it is not sufficient to prove that the Plaintiff committed an unfair labor practice in collusion with E, etc., on the ground that the Plaintiff merely took place on the ground that the Plaintiff did not guide or consult on the act violating the Trade Union Act, and thus, the existence of the instant disposition cause should not be denied.

2) Whether the discretion is deviates or abused or not

A) Whether a disciplinary measure should be taken specifically for a disciplinary measure against a person subject to disciplinary action is at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure is unlawful only when it is acknowledged that the person having authority to take the disciplinary measure has abused the discretionary power that has been entrusted to the person having authority to take the disciplinary measure since the person having authority to take the disciplinary measure has substantially lost validity under the social norms. If the disciplinary measure is deemed unlawful beyond the scope of discretionary power due to a manifest loss of validity under the social norms, the content and nature of the relevant disciplinary measure, the purpose of the disciplinary measure to achieve by the disciplinary measure, and the criteria for a disciplinary measure, etc., shall be considered as a case where the content of the disciplinary measure can be objectively and objectively deemed unreasonable (see Supreme Court Decision 2005Du9019, Nov. 25, 2005).

B) We examine the case back to the case in light of the above legal principles: (a) the Plaintiff consulted with the employer, i.e., having the employer intervene in the organization and operation of a trade union; (b) the content of the consultation was presented to the employer; (c) the Plaintiff received large amount of service costs in return for providing the scenarios in this case; (d) the Plaintiff’s violation of the Certified Public Labor Attorney Act seems to have seriously impaired the public confidence in the duties of certified public labor attorneys; and (d) the employer appears to have been actually engaged in unfair labor practices in accordance with the “normal PLN” prepared by referring to the scenario in this case; and (e) even if the Plaintiff’s registration of certified public labor attorney was revoked, the Plaintiff may again file an application for registration of a certified public labor without labor after three years; and (e) even if the Plaintiff’s registration of the Plaintiff’s registration of the labor attorney in this case, it cannot be objectively asserted that the Plaintiff’s disposition was unreasonable in light of social norms, such as the termination of the consultation contract in this case.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit shall be borne by the plaintiff who has lost. It is so decided as per Disposition.

Judges

The presiding judge, the subordinate judge;

Judges Park Jong-dae

Judge Lee Ho-hoon

Note tin

1) The Plaintiff stated the date of disposition in the purport of the claim as " August 26, 2016." However, according to the statement in the written disposition, the above date of disposition shall be the member of the Certified Labor Affairs Consultant Disciplinary Committee.

The ruling date is the date of the resolution, and the defendant's disposal date is " August 31, 2016".