[1] Method of interpreting the collective agreement provisions

[2] Where a collective agreement provides that "no personnel measure, such as disciplinary action or transfer, shall be taken during the period of dispute", whether the collective agreement can take personnel measures, such as disciplinary action, during the period of dispute (negative)

[3] Where a collective agreement provides that "a company shall not take personnel measures, such as interference with or objection to legitimate labor disputes, and shall not take any disciplinary action or transfer during the period of dispute, and shall not be disadvantageously taken on the ground that it participated in the dispute," whether the scope of application of the above provision can be reduced and interpreted by reducing the scope of application of the above provision in the sense that the company may exercise its disciplinary power even during the period of a strike where it is not related to an illegal industrial action or where it is not likely that the trade union's activities

[1] Unless there are special circumstances, a disposition document, such as a collective agreement, must recognize the existence and content of the expression of intent stated in the document, and on the other hand, a collective agreement is concluded between a labor union and an independent organization of workers through collective bargaining regarding working conditions with the employer for the purpose of maintaining working conditions and improving workers' economic and social status by improving their work conditions and promoting their welfare. Therefore, the explicit provision cannot be interpreted disadvantageous to workers

[2] If a collective agreement provides that "no personnel action, such as disciplinary action or transfer, shall be taken during the dispute period", this is to substantially guarantee the union's collective action right by preventing a trade union from hindering its activities due to personnel measures, such as disciplinary action, against the union members participating in the industrial action during the dispute period. Thus, in a case where an industrial action is duly commenced by legitimate and procedural purposes in compliance with all the provisions of the Trade Union and Labor Relations Adjustment Act, even if the grounds for disciplinary action occurred during the dispute period, all the disciplinary actions, including the proceeding of the disciplinary committee, against union members during the dispute period, shall not be taken for such reasons as long as the dispute continues.

[3] Where the collective agreement provides that "a company shall not interfere with legitimate labor disputes, take personnel measures, such as any disciplinary action or transfer during the period of the dispute, and shall not be disadvantageously imposed on the grounds that it participated in the dispute", it is clear that such a provision does not have any special restrictions on the time when the grounds for the disciplinary action occurred or its contents. Thus, it is reasonable to interpret that the above provision in itself means that the company shall not exercise its right to discipline against the union members, regardless of the reasons during the period of legitimate industrial action.

If a labor union’s act falls under an individual deviation irrelevant to an illegal industrial action or is unlikely to impede the activities of a labor union, the scope of application of the provision on guarantee of status during a strike is reduced and interpreted in such a manner as to the effect that the company can exercise the right to discipline even during the pertinent industrial action, it shall not be deemed disadvantageous to workers than the language and text of the above provision and the objective meaning thereof. Such unfavorable interpretation to workers goes against the purport of the above provision to substantially guarantee the union’s right to collective action by preventing the trade union’s activities from chilling by the personnel action, such as disciplinary action against the union

If a company, which is an employer, takes disciplinary action against a worker, there is an abstract risk that the labor union’s activities will be obstructed, regardless of the legality and legitimacy of the disciplinary action, and thus, it cannot be said that the provision on “Guarantee of Status during a dispute” was introduced to uniformly prohibit disciplinary action regardless of the time and content of the disciplinary action, or that the provision differently applies to each specific result caused by each individual disciplinary cause or disciplinary action.

If it is new that a disciplinary action is permitted due to irrelevant to an industrial action or a personal deviation, the employer may infringe the collective action rights of a trade union by exercising the right of disciplinary action at will during the period of a legitimate industrial action, under the pretext of being an individual deviation. Whether a worker’s misconduct is merely an individual deviation irrelevant to an industrial action, and whether it is related to an industrial action is clearly distinguishable from the industrial action, and thus, the employee is placed in an unstable position.

[1] Article 34 of the Trade Union and Labor Relations Adjustment Act / [2] Article 34 of the Trade Union and Labor Relations Adjustment Act, Article 23 (1) of the Labor Standards Act / [3] Article 34 of the Trade Union and Labor Relations Adjustment Act, Article 23 (

[1] Supreme Court Decision 95Da20454 Decided September 20, 1996 (Gong1996Ha, 3107) Supreme Court Decision 2003Du896 Decided September 9, 2005 (Gong2005Ha, 1612) Supreme Court Decision 201Da86287 Decided February 13, 2014 (Gong2014Sang, 571) / [2] Supreme Court Decision 2008Da70366 Decided February 12, 2009 (Gong2010Du20362 Decided February 15, 2013)

Plaintiff (Attorney Kim Sang-sung et al., Counsel for the plaintiff-appellant)

Yusung Enterprise Co., Ltd. (Bae & Yang LLC, Attorneys Gu Jin-type et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2016Na17000 decided August 17, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

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

1. As to the grounds of appeal on the violation of collective agreement, composition of disciplinary committee and quorum defects

A. The lower court determined that, while recognizing that the instant industrial action was duly commenced by complying with all the reasonable and procedural provisions in its intended purpose, and that the instant dismissal against the Plaintiff was conducted during the instant industrial action period at the time, the Defendant’s provision on guarantee of status in each collective agreement in 2010 and 2012 cannot be deemed to restrict personnel measures, such as disciplinary action or transfer, even in cases where there is no risk that the labor union’s collective action is not substantially guaranteed, the lower court held that the Defendant’s failure to comply with the provision on disciplinary action in the instant collective agreement cannot be deemed to constitute a disciplinary action against the Plaintiff, which is irrelevant to the instant industrial action, on the ground that the dismissal of the instant industrial action was not only an act of personal deviation from the Plaintiff, which is not an industrial trade union, but also an act of abuse of status guarantee, and that the Defendant could not be deemed to have exercised the right to disciplinary action against the Plaintiff’s members under the instant collective agreement even though it did not comply with the provision on disciplinary action against the instant dismissal.

B. However, the lower court’s determination is difficult to accept for the following reasons.

1) Unless there are special circumstances, a disposition document, such as a collective agreement, must recognize the existence and content of the expression of intent in accordance with the content of the document, and on the other hand, a collective agreement is concluded between an independent organization of workers through collective bargaining regarding working conditions with the employer in order to maintain workers’ working conditions and enhance workers’ economic and social status by improving their working conditions and promoting their welfare. Thus, the explicit provision cannot be interpreted disadvantageous to workers (see, e.g., Supreme Court Decisions 95Da20454, Sept. 20, 196; 2003Du896, Sept. 9, 2005; 201Da86287, Feb. 13, 2014).

In addition, if a collective agreement provides that "no personnel action, such as disciplinary action or transfer, shall be taken during the dispute period", this is intended to substantially guarantee the right to collective action of a trade union by preventing a trade union from sustaining its activities due to personnel measures, such as disciplinary action, against the union members who participated in an industrial action during the dispute period. Therefore, if an industrial action is duly commenced due to legitimate and procedural compliance with all the provisions of the Trade Union and Labor Relations Adjustment Act in its purpose, even if the grounds for disciplinary action have occurred in the dispute in the course of the dispute, it shall not take any personnel measures, including disciplinary action, against the union members during the dispute period, including the holding of the disciplinary committee during the dispute period (see Supreme Court Decisions 2008Da7036, Feb. 12, 2009; 2010Du20362, Feb. 15, 2013).

2) The “Guarantee of Status” provision of the collective agreement of this case provides that “the company shall not interfere with legitimate labor disputes, take personnel measures, such as any disciplinary action or transfer during the period of such dispute, and shall not be disadvantageously taken on the ground that it participated in the dispute.” This language and text does not have any special restrictions as to the time when the grounds for the disciplinary action occurred or its contents. Therefore, it is reasonable to interpret the above provision to mean that the defendant is unable to exercise the right to discipline against the union members regardless of the grounds during the period of legitimate industrial action, such as the language and text thereof.

3) If a labor union’s act constitutes a personal deviation irrelevant to an illegal industrial action, or if a labor union’s act is unlikely to be undermined even during the lawful industrial action period, the application scope of the provision on the guarantee of status during the dispute is reduced and interpreted to the effect that the Defendant is entitled to exercise the right to disciplinary action, then it shall be deemed that the above provision’s language and text and its objective meaning are more unfavorable to workers and not allowed. As can be seen, an unfavorable interpretation to workers goes against the purport of the above provision’s introduction to substantially guarantee the right to collective action by preventing a labor union’s act from undermining the labor union’s activities

Inasmuch as the Defendant, an employer, regardless of the legality and legitimacy of disciplinary action against a worker, has abstract risk of hindering the activities of a trade union, it is difficult to view that the provision on the guarantee of status in a dispute was introduced to uniformly prohibit disciplinary action regardless of the time and content of the disciplinary action during the period of a legitimate industrial action, and that the provision on the guarantee of status should not be applied differently depending on the specific result caused by each individual disciplinary cause or disciplinary action.

4) If a new disciplinary action is permitted due to irrelevant to an industrial action or personal deviation, the employer’s right to collective action of a trade union may be infringed by exercising the right to collective action of a trade union by exercising the right to collective action of a trade union at will during the period of a legitimate industrial action under the pretext that the pertinent provision was introduced pursuant to the aforementioned purport. Whether a worker’s misconduct is merely an individual deviation irrelevant to an industrial action, and whether it is related to an industrial action is clearly distinguishable from an industrial action, and thus, the employee is placed in an unstable position.

5) In short, the “Guarantee of Status” provision should be interpreted to mean that all disciplinary actions shall be prohibited during the period of an industrial action that was duly launched as seen earlier. Therefore, it is reasonable to deem that the Defendant’s disciplinary action against the Plaintiff during the period of the industrial action is null and void as it violates the above provision. Furthermore, the holding of the disciplinary committee by violating the “Guarantee of Status” provision cannot be deemed to have abused or renounced the right to disciplinary action with the Defendant’s refusal to comply with the request of the disciplinary committee. Rather, there is considerable room to deem that the Defendant held a disciplinary committee only by a private member to have a significant defect in the disciplinary proceedings to determine the dismissal of the instant case.

C. Nevertheless, the court below rejected all the Plaintiff’s claim seeking confirmation of invalidity of the dismissal of this case and payment of part of the wages incurred during the period of dismissal, on the ground that the dismissal of this case against the Plaintiff by the Defendant did not violate the provision on guarantee of status during the dispute and did not have any procedural defect even if the Defendant held a disciplinary committee only with the disciplinary committee members. In so determining, the court below erred by misapprehending the legal principles on the interpretation of a collective agreement, which is a document of disposition, and the composition of the disciplinary committee, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Jae-hyung (Presiding Justice)