Geumho Labor Union (Law Firm Lee & Lee, Attorneys Choi Su-young, Counsel for the plaintiff-appellant)

Geumho Co., Ltd. (Law Firm Han & Yang LLC, Attorneys Lee Jae-ho et al., Counsel for the plaintiff-appellant)

National Metal Trade Union

August 21, 2013

Seoul Central District Court Decision 2012Gau45547, 2012Gahap9186 decided January 31, 2013

1. Revocation of the first instance judgment.

2. The defendant shall comply with collective bargaining with the plaintiff as to the matters for bargaining listed in the separate sheet No. 1.

3. The independent party intervenor's claims against the plaintiff and the defendant are all dismissed.

4. The costs of the principal lawsuit among the total costs of the lawsuit shall be borne by the defendant, and the costs of the intervention by the independent party shall be borne by the independent party intervenor;

1. Purport of claim

(a) Main claim;

The defendant shall comply with collective bargaining with the plaintiff as to the matters to be negotiated listed in the attached Table 1 list.

(b) Intervention by independent parties;

1) The Defendant shall not comply with the Plaintiff’s demand for collective bargaining regarding the conclusion of wages and collective agreements in 2012.

2) The Plaintiff may not request the Defendant to conduct collective bargaining in relation to the conclusion of a collective agreement in 2012.

2. Purport of appeal

The judgment of the first instance is revoked. The Defendant will respond to collective bargaining with the Plaintiff regarding the matters for negotiations listed in the separate sheet No. 1. The independent party intervenor's claims against the Plaintiff and the Defendant are dismissed.

1. Scope of the judgment of this court;

The plaintiff only appealed against the judgment of the court of first instance. However, the plaintiff's claim against the defendant by an independent party intervenor against the defendant is not compatible with the plaintiff's claim against the defendant, and thus it is necessary to make a joint conclusion of conclusion between the plaintiff and the defendant and the independent party intervenor. As such, the part of the plaintiff's claim against the defendant in the judgment of first instance is prevented from becoming final and conclusive, and it is subject to the judgment of the court of first instance.

2. Basic facts, relevant laws and regulations, and the allegations of the Parties

The reasoning for this Court’s explanation is as follows: “1. Basic Facts” and “2. Related Acts and subordinate statutes” and “3. Party’s assertion” are as stated in each part of the judgment of the court of first instance; therefore, they are cited by the main text of Article 420 of the Civil Procedure Act.

3. Determination

A. The issues of the instant case

1) According to Article 29-2(1) and (2) of the Trade Union and Labor Relations Adjustment Act, where multiple trade unions exist in one workplace, a trade union shall set a representative bargaining trade union and request a business entity to conduct collective bargaining. However, where the employer consents not to undergo the simplification of bargaining windows (i.e., where the employer consents to the individual bargaining with the trade union), the employer may conduct individual bargaining with each trade union. Such individual bargaining agreement shall be made within the period for which the trade union voluntarily determines the representative bargaining trade union (hereinafter “the period for autonomous decision of the representative bargaining”). The period for autonomous decision of the representative bargaining is prescribed in Article 29-2(2) of the Trade Union and Labor Relations Adjustment Act and Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act. The purport of the above provision is to ensure that the representative bargaining trade union is to voluntarily determine whether to agree to the individual bargaining trade union, or that the period for which the collective bargaining is made unfairly late. Therefore, the above provision is mandatory.

2) Meanwhile, Article 14-6 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that "in cases where a trade union which has been determined or decided as a trade union which has requested bargaining pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act intends to set a representative bargaining trade union autonomously pursuant to Article 29-2 (2) of the Trade Union and Labor Relations Adjustment Act, the representative, negotiating members, etc. of the representative bargaining trade union shall be jointly signed or sealed and notified to the employer by the deadline of 14 days from the date of determination or decision pursuant to Article 14-5 of the Trade Union and Labor Relations Adjustment Act." Accordingly, the period of autonomous decision on the representative bargaining is 14 days from the date

3) Therefore, in full view of the contents of the aforementioned statutes and the basic facts of the instant case and the purport of the parties’ assertion, the issue of the instant case is whether the Defendant’s notice of individual bargaining was given to the Plaintiff within the period of autonomous bargaining delegation, and its detailed contents. ① Whether the decision of the Labor Relations Commission under Article 14-5(5) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act includes the decision of rejection, and ② if the decision of rejection is included, the “date of determination” is determined or “date of determination” as a trade union requesting bargaining, which serves as the starting point of the period of autonomous bargaining delegation under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act.

B. Determination on issues

1) Whether the decision of the Labor Relations Commission under Article 14-5(5) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is included

In full view of the following circumstances recognized by comprehensively taking account of the aforementioned basic facts and the purport of the entire pleadings, the “decision” as the basis for the “date of determination or decision pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Commission Act” should be deemed to include the “decision of rejection” by the Labor Relations Commission

A) The objective meaning of the phrase “the 14th day from the date determined or determined pursuant to Article 14-5” under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is interpreted as the date the procedures pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act are terminated among the procedures for simplification of bargaining windows under the Trade Union and Labor Relations Adjustment Act. Therefore, where a trade union requesting bargaining has made a request for correction to the Labor Relations Commission pursuant to Article 14-5(4) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act, the period of self-determination of the representative bargaining shall not proceed until the Labor Relations Commission makes a decision on the request

B) Since all trade unions which have participated in the procedures for the simplification of bargaining windows under the Trade Union and Labor Relations Commission Act voluntarily determine the period of a representative bargaining trade union, the period should be specified in all the trade unions, and even if either trade union is first specified, the period may not proceed unless the other trade union is specified as a trade union. Here, “specific trade union as a trade union requesting bargaining” means not only that the trade union has been recognized as a trade union by the employer or the Labor Relations Commission as a trade union, but also that the trade union’s name and name, number of union members at the time of the trade union’s request for bargaining, date of demand for bargaining, etc. (Article 14-5(1) and (2) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act, Article 10-4(1)1 of the Enforcement Rule of the Trade Union and Labor Relations Adjustment Act, an employer is obligated to publicly announce the name of the trade union and its representative at the time of the request for bargaining, number of union members at the time of the request for bargaining, and a trade union requesting bargaining after the above announcement can be an employer.

C) Article 14-5(2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that “where a trade union which has requested bargaining pursuant to Articles 14-2 and 14-4 provides that a trade union may raise an objection against an employer during the period of public announcement pursuant to paragraph (1) where it is deemed that the details of public announcement pursuant to paragraph (1) are different from those submitted by it or that the details of public announcement have not been publicly announced, the trade union may make an objection against the employer during the period of public announcement pursuant to paragraph (1).” In light of the overall purport of the system of simplification of bargaining windows, it is interpreted that a trade union may raise an objection only to the contents of public announcement related to itself. However, the legal effect does not vary depending on the type of decision made by the Labor Relations Commission pursuant to Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act. Thus, Article 14-5(2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that a trade union is a request for bargaining.

D) However, Article 14-5(2), (4), and (5) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act limits the period in which the trade union requesting bargaining may make a correction request to the Labor Relations Commission, and the Labor Relations Commission also provides that the above matters of request for correction shall be decided within a given period. Accordingly, the period in which the period of autonomous decision of the representative of bargaining is extended by the trade union requesting the correction to the Labor Relations Commission is about 20 days. Furthermore, in light of the fact that Article 14-2(1) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act, the request for a trade union to initiate the procedures for the simplification of bargaining windows may be made within three months prior to the expiration date of the collective agreement, even if the trade union requesting bargaining is requesting the Labor Relations Commission to make a correction request, the period of the procedures for the simplification of bargaining windows cannot be deemed unfairly extended.

E) On the contrary, if an employer or a trade union requesting bargaining does not proceed from the date when the Labor Relations Commission determines to make a voluntary decision on matters concerning other trade unions than its own matters, but rather from the date when the Labor Relations Commission decides to make a request for bargaining or from the date when the period of its final announcement expires, it would result in the result that the employer or the trade union requesting bargaining should make a prior decision on whether or not the contents of the request for correction of the bargaining trade union are legitimate and whether or not the Labor Relations Commission makes a decision to make a decision to reject it before the Labor Relations Commission decides to make a decision. This would result in requiring the employer or the trade union requesting bargaining to make a legal decision on the matter before the Labor Relations Commission determines the labor relations and to bear risks arising therefrom. Therefore, it is reasonable to deem that the period of autonomous decision of bargaining should not proceed until the Labor Relations Commission makes a decision on the request for correction, unless there are special circumstances such as clearly unfair even if the trade union is who has made a request for correction to the Labor Relations Commission.

2) The meaning of “date determined” under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act

A) Next, we examine the meaning of “the date determined” under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act. In light of the following, in the event that the starting point of calculating the period is not the market price of the establishment of the act, but the starting point of starting the act when the act takes effect, the above date should be deemed to be “the date of taking effect” of the dismissal decision of this case.

Articles 29-2(7) and 69(1) of the Trade Union and Labor Relations Commission Act provide that a Labor Relations Commission may decide on an objection to a request for bargaining by a trade union, and the parties may file an application for reexamination with the Central Committee. The period for filing an application for reexamination is within 10 days from the date on which written decision is served. In addition, Article 15(1) of the Labor Relations Commission Act provides that “The Adjudication Committee shall be established to deal with the affairs belonging to the authority of the Labor Relations Commission for each sector.” Article 15(3) of the Labor Relations Commission Act provides that “The Adjudication Committee shall deal with the matters prescribed to be decided, decided, approved, or recognized by the Labor Relations Commission pursuant to the Trade Union and Labor Relations Commission Act.” Article 17-2(1) provides that “The Labor Relations Commission shall without delay notify the parties of the result of its resolution by a subcommittee.” Article 17-2(2) provides that “The Labor Relations Commission shall notify the parties of the written decision in relation to the disposition, and the effect of the disposition shall be effective.”

B) According to the above provisions, the Labor Relations Commission should deliver to the parties a decision on an objection to a request for bargaining by a trade union for bargaining, in writing, and the Labor Relations Commission’s decision shall take effect from the date of service thereof.

Meanwhile, the main text of Article 28 of the Rules of the Labor Relations Commission provides that “the Labor Relations Commission shall inform the other party of the result of a resolution by the Labor Relations Commission by means of telephone, facsimile, e-mail, etc., by no later than the day immediately following the date of resolution.” However, notice by “defaction” pursuant to the above Rules cannot be deemed as notice in writing” pursuant to Article 17-2(2) of the Labor Relations Commission Act and Article 136(2) of the Rules of the Labor Relations Commission. Rather, this is to implement the procedure under Article 17-2(

Therefore, it is reasonable to interpret the Labor Relations Commission's "date of decision" as "the date when the decision comes into effect" by serving the parties in writing.

C) The Intervenor asserts that “the date when the decision was made” should be interpreted as “the date on which the decision was made”. However, in full view of the grounds for interpretation of the above statutes and the following circumstances, it is reasonable to interpret “the date when the decision was made” as “the date when the decision became effective” as seen earlier. Thus, the Intervenor’s allegation above is without merit.

(1) The period of self-determination of the negotiating representative takes effect when the period expires autonomously and the employer is no longer able to decide on the representative bargaining trade union or consent to individual bargaining. Thus, the period of time shall be clear to the extent that there is no room for dispute between the parties. (2) In particular, where the Labor Relations Commission has made a decision on the period after the party raised an objection to the Labor Relations Commission, the party who raised an objection may clearly recognize the contents of the decision. (3) Where the contents of the decision are not properly transmitted according to the situation of transmission and reception network, and where the recipient is absent, the Labor Relations Commission does not have known the contents on the date of facsimile. (4) The Labor Relations Commission does not confirm the receipt of facsimile from the date of the decision on the rejection of the case (the Plaintiff who was the party that raised an objection to the Labor Relations Commission in this case is a party to the instant case and the date of the decision on the rejection of the request is no more than 20 days prior to the date of the decision on the original of the case, and thus, the defendant is no more than 20 days prior to receive the original decision on the date of the request for collective bargaining.

C. Judgment on the Plaintiff’s main claim

As seen earlier, the period of self-determination of bargaining delegation from February 7, 2012, which is the effective date of the decision of rejection of the instant case, shall be calculated, and according to the written evidence Nos. 6 through 8, the Plaintiff requested individual bargaining to the Defendant on January 31, 2012 and February 16, 2012, and the Defendant notified the Plaintiff that he/she would undertake collective bargaining to the Plaintiff on February 21, 2012. In light of the above facts of recognition, the individual bargaining notification of the instant case was made within 14 days from February 7, 2012, which is the effective date of the decision of rejection of the instant case, and thus, it is apparent that the individual bargaining notification of the instant case was made within the period of self-determination of bargaining delegation. Accordingly, the Plaintiff and the Defendant are obligated to implement individual collective bargaining procedures for the year 2012.

D. Judgment on the Intervenor’s claim

As determined earlier, the notice of the instant individual bargaining given by the Defendant to the Plaintiff was given within the period of autonomous decision-making of the negotiating delegation. Therefore, the Intervenor’s claim against the Plaintiff and the Defendant on the premise that the notice of the instant individual bargaining was null and void is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the ground of its reason, and the intervenor's claim against the plaintiff and the defendant shall be dismissed on the ground of its reason. However, the judgment of the court of first instance is unfair on the ground of its conclusion. Accordingly, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the plaintiff's claim against the plaintiff and the defendant shall be dismissed in entirety.

[Attachment List omitted]

Judges Kim Jong-tae (Presiding Judge)

1) "The name of a trade union that has requested the negotiation, the number of union members as of the date on which the trade union has requested the negotiation, etc." in Article 10-4 (Final Public Notice, etc.) (1) of the Decree means the following matters: 1. The name of a trade union that has requested the negotiation pursuant to Articles 14-2 and 14-4 of the Decree and the name of its representative; 2. The name of a trade union that has requested the negotiation pursuant to Articles 14-2 and 14-4 of the Decree; 3. The date on which a request for negotiation was made pursuant to Articles 14-2 and 14-4 of the Decree; 4. Where the details of the public announcement are not publicly announced or publicly announced differently from the details submitted by the trade union, an employer may raise an objection during the period of public announcement:

2) In the trial proceedings, a decision or order that is to be declared in accordance with the original of the decision is established and effective by a declaration, while a decision or order that is not pronounced is generally deemed to take effect when the original of the decision is delivered to a junior administrative officer, etc. and the notification to the parties is made in a reasonable manner. In light of this, the “date of the decision” referred to in this context appears to mean the date when the Labor Relations Commission delivers the original of the decision to the Secretariat or to the employee in charge of the Secretariat.

3) In light of the fact that the employer’s consent to individual bargaining is based on the proviso of Article 29-2(1) of the Trade Union and Labor Relations Adjustment Act, it cannot be deemed that the consent is based on the premise that all trade unions participating in the procedures for simplification of bargaining windows have applied for individual bargaining. If the employer’s consent is based on the premise that all trade unions have applied for individual bargaining, it refers to the fact that there has been an agreement between the employer and all trade unions regarding the implementation of collective bargaining by individual bargaining between the employer and all trade unions, and there is no reason for the proviso of Article 29-2(1) of the Trade Union and Labor Relations Adjustment Act to such cases as

4) In this case, there is no reason not to apply the “Principle of Non-Inclusion in the first day” under Article 157 of the Civil Act.