[1] The meaning of "where a trade union is organized in one business or workplace" under Article 5 (1) of the Addenda to the Trade Union and Labor Relations Adjustment Act

[2] Whether an employer may postpone or refuse collective bargaining with each trade union on the basis of Article 5(3) of the former Trade Union and Labor Relations Adjustment Act, where a trade union substantially overlaps in a business or workplace (negative)

[3] Whether a collective agreement concluded by a company-level trade union by independently exercising the right to collective bargaining is restricted solely on the ground that the collective agreement has a general binding force under Article 35 of the Trade Union and Labor Relations Adjustment Act (negative)

[1] Article 5 (1) (amended by Act No. 8158, Dec. 30, 2006) of the former Addenda of the Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158, Mar. 13, 1997) provides that "where a trade union is organized in a business or workplace" refers to a case where a business unit trade union is established in a single business or workplace. However, where a trade union is organized within a single business or workplace with the right to determine independent working conditions, the branch or branch of a unit trade union of an primary business, industry, occupation, or region with independent rules and executive organs may independently conduct collective bargaining and collective agreement as to the unique matters of the relevant organization or union members, and thus, it shall also include cases where it is possible to independently conduct collective bargaining and collective agreement as to the unit trade union of each company. However, even if a newly established trade union does not limit only the substance of a business or workplace to the organization of workers, even if it overlaps with an existing company-level trade union, the establishment of multiple trade union is not prohibited.

[2] Although the Trade Union and Labor Relations Adjustment Act (amended by Act No. 9930, Jan. 1, 2010) provides for the simplification of bargaining windows, as long as the amended regulations have not yet implemented, each trade union is not subject to multiple trade unions prohibited from establishment pursuant to Article 5(1) (amended by Act No. 8158, Dec. 30, 2006) of the Addenda of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158, Mar. 13, 1997) and each trade union is entitled to demand collective bargaining to its employer, and the employer shall not postpone or refuse collective bargaining with each trade union on the grounds of Article 5(3) of the Addenda.

[3] Even if there are circumstances where a collective agreement made by a company-level trade union by independently exercising the right to collective bargaining exists and the collective agreement has general binding force under Article 35 of the Trade Union and Labor Relations Adjustment Act, the right to collective bargaining or collective agreement concluded by an industrial, occupational, and regional unit trade union established or joined by an employee in the same business or workplace is not restricted in the current Trade Union and Labor Relations Adjustment Act without the enforcement of the amended provision on the simplification of bargaining windows and without any other provision that restricts collective bargaining rights, etc.

[1] Article 5(1) of the Addenda of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158, Dec. 30, 2006) / [2] Article 5 (amended by Act No. 8158, Dec. 30, 2006) of the Addenda of the Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158, Dec. 30, 2006) / [3] Article 33(1) of the Constitution of the Republic of Korea; Article 35 of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 2001Du5361 Decided July 26, 2002 (Gong2002Ha, 2074) Supreme Court Decision 2006Du15400 Decided December 24, 2008 (Gong2009Sang, 110)

Korea Broadcasting System (Law Firm, Kim & Lee LLC, Attorneys Ko Hyun-chul et al., Counsel for defendant-appellant)

National Press Workers' Union

Seoul High Court Order 2010Ra857 dated July 23, 2010

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the assertion regarding multiple labor union

Article 5(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union and Labor Relations Adjustment Act”) provides that “workers may freely organize or join a trade union.” Article 5(1) of the Addenda (amended by Act No. 8158, Dec. 30, 2006; hereinafter “former Addenda to the Trade Union and Labor Relations Adjustment Act”) prohibits the establishment of a new trade union with only one trade union subject to organization as an independent trade union by not later than December 31, 2009, by stipulating that “If a trade union is organized in one business or workplace, a new trade union may not be established by not later than 10,000, with the capacity of an industrial trade union as an independent trade union or its branch of an industrial trade union established by Act No. 930, Jan. 1, 2010; see Article 5(1) of the Addenda to the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 9930, Dec. 13, 2017).

In the same purport, by taking account of the circumstances revealed in the court below's reasoning, the KBS trade union is a company-level trade union of the debtor's company-level trade union organized by the debtor's employees, and the creditor is a primary industrial unit trade union with nationwide press industry and related business workers, and the KBS headquarters of the creditor's company (hereinafter "the headquarters of this case") cannot be deemed to have the creditor's own ability to independently conduct collective bargaining and sign collective agreements with respect to its organization or its members. Thus, the creditor is just in holding that the establishment of the KBS trade union does not fall under multiple trade unions prohibited by Article 5 (1) of the Addenda to the former Trade Union Act in relation to the KBS trade union, and contrary to the allegations in the grounds for re-appeal, there is no illegality of misapprehending the legal principles as to whether it falls under multiple trade unions. Meanwhile, the Supreme Court Decision 200Da23815 Decided October 25, 2002 cited in the grounds for re-appeal is inappropriate to invoke the issue of this case.

2. As to the assertion regarding the simplification of bargaining windows

As seen earlier, Article 5(1) of the Addenda to the former Trade Union and Labor Relations Adjustment Act prohibits the establishment of multiple trade unions temporarily. Article 29-2(3) of the same Act prohibits “The Minister of Labor, by December 31, 2009, shall take measures, such as the method and procedure of collective bargaining for the simplification of bargaining windows to be applied after the expiration of the period prescribed in paragraph (1) until December 31, 2009.” The main text of Article 29-2(1) of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 9930, Jan. 1, 2010; hereinafter “former Trade Union and Labor Relations Adjustment Act”) provides that “if there are two or more workers who establish or join a single business or workplace regardless of their structural form, a trade union shall request the negotiation trade union to designate a representative bargaining trade union and delete Article 5(3) of the Addenda to the former Trade Union and Labor Act from the date of entry into force of Article 29-2 through Article 29-5 of the Addenda to the same Act.”

The provisions of Article 5 (3) of the Addenda to the former Trade Union and Labor Relations Adjustment Act limit the number of offenders to the Minister of Labor, and the contents thereof also are nothing more than a provision that requires the Minister of Labor to prepare certain legislation or policies on the method, procedure, etc. of the simplification of bargaining windows in preparation for the fact that multiple trade unions prohibited from establishment by Article 5 (1) of the former Trade Union and Labor Relations Adjustment Act can be fully permitted. Thus, as long as the amended regulations have yet to enforce the system of the simplification of bargaining windows, each trade union that does not fall under multiple trade unions prohibited from establishment pursuant to Article 5 (1) of the Addenda to the former Trade Union and Labor Relations Adjustment Act shall have the right to request collective bargaining to the employer, and the employer shall not justify the postponement or refusal of collective bargaining with each trade union on the grounds of Article 5 (3) of the Addenda to the former Trade Union and Labor Relations Adjustment Act.

In the same purport, the court below is just to have rejected the debtor's assertion related to the simplification of the bargaining counter, and it is not erroneous in the misapprehension of legal principles as to the justifiable grounds in the demand for collective bargaining in the grounds for reappeal

3. As to the assertion regarding the general binding power of a collective agreement

Article 33(1) of the Constitution provides that “workers shall have the right to independent association, collective bargaining, and collective action to improve working conditions, thereby guaranteeing workers’ right to independent collective bargaining, as well as the right to collective bargaining, and the right to collective action. Therefore, even if there are circumstances in which a collective agreement entered into by a company-level trade union by independently exercising the right to collective bargaining exists and the collective agreement has the general binding power under Article 35 of the Trade Union and Labor Relations Adjustment Act, it cannot be said that the right to collective bargaining or the right to enter into collective agreements with an industrial, occupational, and regional unit trade union established or joined by workers in the same business or workplace under the current Trade Union and Labor Relations Adjustment Act without enforcing the amended provision on the simplification of bargaining windows

In the same purport, the lower court is justifiable to have rejected the obligor’s assertion that the obligee may refuse the obligee’s demand for collective bargaining on the grounds concerning the validity of collective agreement. In so doing, the lower court did not err by misapprehending the legal doctrine as to the general binding force of collective agreement

4. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)