[1] The meaning of "where it is deemed necessary to separate bargaining units" under Article 29-3 (2) of the Trade Union and Labor Relations Adjustment Act

[2] Whether the Labor Relations Commission's decision on a request for separation of bargaining units is allowed simply on the ground that the decision is disadvantageous to either party (negative), and where an objection is allowed

[1] In light of the legislative purport, etc. of the Trade Union Act that recognizes the separation of bargaining units in principle, while the contents and form of Articles 29-2, 29-3(1), and 29-3(2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), “where it is deemed necessary to separate bargaining units” as stipulated in Article 29-3(2) of the Trade Union Act means the exceptional cases where the simplification of bargaining windows through a representative bargaining trade union is possible not consistent with the intent of the simplification of bargaining windows to establish a stable bargaining system through the uniform formation of working conditions.

[2] Article 29-3(3) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that Article 69 of the Trade Union Act shall apply mutatis mutandis to a case where an appeal is filed against the decision of the Labor Relations Commission regarding an application for separation of bargaining units. Article 69(1) and (2) of the Trade Union Act provides that the grounds for appeal against an arbitration award, etc. by the Labor Relations Commission shall be limited to the case where “in violation of law or in good faith.” Therefore, the Labor Relations Commission’s decision on an application for separation of bargaining units is not allowed simply on the ground that it is disadvantageous to either party, and the procedure is unlawful or unlawful, or that it is necessary to separate bargaining units by misunderstanding the legal principles on the requirements for the determination on separation of bargaining units under Article 29-3(2) of the Trade Union Act, even if it is deemed necessary to separate bargaining units, it is unlawful

[1] Articles 29-2, 29-3 (1) and (2) of the Trade Union and Labor Relations Adjustment Act / [2] Articles 29-3 (2) and (3), 69 (1) and (2) of the Trade Union and Labor Relations Adjustment Act

High-transfer City Management Corporation (Law Firm LLC, Attorneys Lee Sang-min et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Daejeon High Court Decision 2014Nu12374 decided February 5, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. (1) Article 29-2 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides for the procedures for simplification of bargaining windows to require bargaining trade unions in cases where there are not less than two trade unions which have established or joined a single business or workplace regardless of its structural form, and Article 29-3(1) of the same Act provides that “a unit that shall determine a representative bargaining trade union pursuant to Article 29-2 (hereinafter “Negotiation unit”) shall be a business or a workplace” and Article 29-3(2) of the same Act provides that “Where it is deemed necessary to divide bargaining units in consideration of a significant difference in working conditions, type of employment, bargaining practices, etc. at one business or a workplace, a Labor Relations Commission may decide to divide bargaining units at the request of both or either of the parties to labor relations.”

Considering the content and form of the provision of the Trade Union Act and the legislative purport of the Trade Union Act that recognizes the separation of bargaining units in certain cases, “where it is deemed necessary to separate bargaining units” as stipulated in Article 29-3(2) of the Trade Union Act means exceptional cases where the simplification of bargaining windows through a representative bargaining trade union is likely to cause a result inconsistent with the purpose of the single bargaining channel unification system that intends to establish a stable bargaining system through the uniform formation of working conditions.

(2) Meanwhile, Article 29-3(3) of the Trade Union Act provides that Article 69 of the same Act shall apply mutatis mutandis to cases where an objection is made to the decision of the Labor Relations Commission with respect to an application for separation of bargaining units. Article 69(1) and (2) of the same Act provides that the grounds for appeal against an arbitration award, etc. by the Labor Relations Commission shall be limited to cases where the grounds for appeal are “illegal or unjust or unjust.” Therefore, the determination of the Labor Relations Commission with respect to an application for separation of bargaining units is not allowed simply on the ground that it is disadvantageous to either party, and the procedure is unlawful, or it is deemed necessary to separate bargaining units by misunderstanding the legal principles as to the requirements for the determination of separation of bargaining units under Article 29-3(2) of the Trade Union Act, even if it is deemed necessary to separate bargaining units,

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) Unlike other types of occupation, the Plaintiff’s ordinary workers are basically subject to separate regulations on the management regulations for commercial workers. In particular, unlike the Plaintiff’s general service and technical service, the Plaintiff’s occupational categories such as general service and technical service are subject to the public official remuneration regulations and the salary system is basically different from the wage system, which consists of the structure in which the basic salary and the allowances are provided for each type of occupation subject to the Commercial Service Management Regulations.

(2) The Plaintiff’s ordinary workers are not included in the prescribed number of personnel according to the organization regulations, but consisting of a facility manager, parking lot, counselor, etc., and the other types of occupation and duties are clearly distinguished, and personnel exchanges are not allowed between other types of occupation and other types of occupation.

(3) The Plaintiff’s ordinary workers have organized and organized a consultative body or labor union with other employees in the occupational category, and have concluded a wage agreement separate from other occupational categories since the time when the Plaintiff was affiliated with the Korea Facilities Management Corporation prior to the launch of the Plaintiff.

(4) On the other hand, the collective agreement of 2013 concluded with the Plaintiff by the high-transfer and management labor union is not applicable to commercial workers, and the high-transfer and management labor union has not been engaged in collective bargaining including the part against commercial workers even after it has been determined as the representative bargaining labor union.

(5) The instant trade union has only joined the Plaintiff’s ordinary workers, and the said trade union is clearly divided by each trade union, such as only the other trade-related workers are enrolled in the said trade union.

3. We examine these facts in accordance with the above provisions and legal principles.

(1) In light of the difference and degree of the working conditions and the type of employment between commercial workers and other workers in the workplace, there are circumstances to justify the exercise of collective bargaining rights by the instant trade union’s separate bargaining units. Accordingly, it is determined that the high-transfer and management trade union’s continuing representation of the representative bargaining trade union may cause a result inconsistent with the purpose of the simplification of bargaining windows to establish a stable bargaining system through the uniform formation of working conditions, such as creating conflicts between trade unions. Therefore, it is recognized that there is a need to separate the bargaining units stipulated in Article 29-3(2) of the Trade Union Act for commercial workers in the Plaintiff’s business.

(2) Nevertheless, the instant initial determination was based on the same basic wage system in comparison with the other types of business and the other types of business, but did not consider the difference between the wage system for ordinary workers. Rather, it denied the need to separate bargaining units on the ground that there is no substantial difference in the wage system. In so doing, the lower court erred by misapprehending the legal doctrine related to the separation of bargaining units under the Trade Union Act, thereby dismissing the application for separation of bargaining units of the instant trade union.

(3) Therefore, the decision of the first instance, which dismissed the application for separation of bargaining units, is unlawful, and thus, the decision of the retrial of this case which separates bargaining units is lawful.

4. Although the reasoning of the lower court is somewhat insufficient, the lower court’s conclusion that the instant decision on retrial was lawful is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the determination of the Labor Relations Commission on the division of bargaining units and the grounds for appeal, thereby adversely affecting

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)