[1] Where an agreement between a trade union and an employer on working conditions and other labor-management relations is established by a labor-management council, not a regular collective bargaining procedure, but a collective agreement should be deemed to be a collective agreement in cases where both parties have signed and sealed the agreement by written intent to make it a collective agreement (affirmative)

[2] Whether it is permissible for a trade union to procedurally limit the exercise of its power to conclude a collective agreement by requiring the labor union to follow internal procedures in its rules, etc. (affirmative in principle), and whether the representative of a trade union constitutes a tort in cases where the trade union concluded a collective agreement with an employer on matters that affect the important working conditions of union members without going through internal procedures prepared to hold and reflect the union members’ intentions (affirmative in principle)

[3] Whether the calculation of the amount of consolation money for non-property damage suffered by tort is discretionary matters of the fact-finding court (affirmative)

[1] A collective agreement is established by preparing in writing a labor union’s agreement on matters arising out of the labor union’s working conditions and other labor-management relations with an employer or employers’ association, and the agreement is not necessarily required to be concluded through regular collective bargaining procedures. Therefore, even if an agreement on working conditions and other labor-management relations between a trade union and an employer was established after consultation with the labor-management council, if both parties’ written intent to make such agreement as a collective agreement and the representatives of both parties’ signing and sealing on behalf of each trade union and an employer, it shall be deemed a collective agreement.

[2] Article 33(1) of the Constitution provides that “workers shall have the right to independent association, collective bargaining, and collective action to improve the working conditions.” Article 22 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that “The members of a trade union shall have equal rights and duties to participate in all matters of the trade union.”

On the other hand, collective agreement has a normative effect that directly determines the working conditions and other criteria for the treatment of individual union members of a trade union, so the actual subject of the collective agreement is an employee. Therefore, collective agreement should be concluded on the basis of the intent of the trade union formed by the union members participating in the collective agreement. Article 16(1)3 of the Trade Union Act stipulates matters concerning collective agreement as a resolution of the general meeting and stipulates that the representative of the trade union may prepare a proposal for bargaining through the general meeting before the commencement of collective bargaining or continue to gather the total amount of union members during the collective bargaining

Therefore, a trade union's procedural limitation on the exercise of its power to conclude collective agreements by reflecting its members' will and by controlling the representative's performance of collective bargaining and conclusion of collective agreements through internal procedures, etc. is not permissible unless it completely and comprehensively limits the power to conclude collective agreements.

In light of the provisions, purport, contents, and legal principles of the Constitution and laws, a trade union’s representative entered into a collective agreement with an employer on matters that affect the important working conditions of union members without undergoing any internal procedure prepared to make and reflect the intent of union members as above. When the collective agreement becomes effective for union members, such act constitutes a tort that infringes upon the right to organize of union members or the right to participate in the process of formation of a trade union’s will protected under the Constitution and laws, barring special circumstances.

[3] The amount of consolation money for non-property damage suffered by tort can be determined by the fact-finding court at its discretion, taking into account various circumstances.

[1] Articles 29 and 31 of the Trade Union and Labor Relations Adjustment Act / [2] Article 33(1) of the Constitution of the Republic of Korea; Articles 16(1)3, 22, and 29 of the Trade Union and Labor Relations Adjustment Act; Article 750 of the Civil Act / [3] Articles 393, 751, and 763 of the Civil Act

[1] Supreme Court Decision 2003Da27429 Decided March 11, 2005 (Gong2005Sang, 570) / [2] Supreme Court Decision 2010Da24534 Decided April 24, 2014 / [3] Supreme Court Decision 2017Da228083 Decided November 9, 2017 (Gong2017Ha, 2319)

See Attached List of Plaintiffs (Law Firm Shin, Attorneys Shin Jae-soo et al., Counsel for the plaintiff-appellant)

KT trade union and two others (LLC, Kim & Lee LLC, Attorneys Ko Hyun-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2026878 decided December 16, 2015

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

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

1. Regarding ground of appeal No. 1

A collective agreement is established by preparing in writing an agreement on matters arising out of the labor union’s working conditions and other labor-management relations with an employer or employers’ association, and such agreement is not necessarily required to be concluded through regular collective bargaining procedures. Therefore, even if an agreement on working conditions and other labor-management relations between a trade union and an employer is established after consultation with the labor-management council, if both parties are to prepare in writing a written intent to make such agreement as a collective agreement and signed and sealed by both parties on behalf of each trade union and the employer, it shall be deemed a collective agreement (see Supreme Court Decision 2003Da27429, Mar. 11, 2005).

On the grounds indicated in its reasoning, the lower court determined that each labor-management agreement of the instant case constitutes a collective agreement that requires resolution at the general meeting of the union members under the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) and the instant agreement.

In light of the above legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the meaning of a collective agreement and the legal principles on the interpretation

2. As to the grounds of appeal Nos. 2 and 3

A. 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.” Article 22 of the Trade Union Act provides that “The members of a trade union shall have equal rights and duties to participate in all matters of the trade union.”

On the other hand, collective agreement has a normative effect that directly determines the working conditions and other criteria for the treatment of individual union members of a trade union, so the actual subject of the collective agreement is an employee. Therefore, collective agreement should be concluded on the basis of the intent of the trade union formed by the union members participating in the collective agreement. Article 16(1)3 of the Trade Union Act stipulates matters concerning collective agreement as a resolution of the general meeting and stipulates that the representative of the trade union may prepare a proposal for bargaining through the general meeting before the commencement of collective bargaining or continue to gather the total amount of union members during the collective bargaining

Therefore, a trade union’s procedural restriction on the exercise of its power to conclude a collective agreement by reflecting its members’ intentions and by requiring the labor union to follow internal procedures, etc. in order to properly control the collective bargaining and the execution of its duties to conclude a collective agreement is permissible unless it completely and comprehensively limits the power to conclude a collective agreement (see Supreme Court Decision 2010Da24534, Apr. 24, 2014).

In light of the provisions, purport, contents, and legal principles of the Constitution and laws, a trade union’s representative entered into a collective agreement with an employer on matters that affect the important working conditions of union members without undergoing any internal procedure prepared to make and reflect the intent of union members as above. When the collective agreement becomes effective for union members, such act constitutes a tort that infringes upon the right to organize of union members or the right to participate in the process of formation of a trade union’s will protected under the Constitution and laws, barring special circumstances.

B. The lower court premised on the premise that the instant rules stipulate matters concerning the conclusion of a collective agreement as a resolution by the general meeting of partners, and that the representative should conclude a collective agreement after going through the resolution of the general meeting of partners. Thereafter, the lower court determined that the conclusion of each of the instant labor-management agreements with Defendant 2, etc., the representative of the Defendant trade union, without going through the procedures for gathering opinions from union members through the resolution of the general meeting, constitutes a tort against the procedural rights of union members who are entitled to participate in the process of formation of a trade union

C. In light of the above legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the requirements for establishment of tort,

3. Regarding ground of appeal No. 4

The amount of consolation money for non-property damage suffered by tort may be determined at the discretion of the fact-finding court, taking into account various circumstances (see Supreme Court Decision 2017Da228083, Nov. 9, 2017, etc.).

In light of the above legal principles and the records, the court below was justified in taking full account of the circumstances in its judgment and calculated the amount of consolation money against the plaintiffs, and there was no error of misapprehending the legal principles regarding the calculation of consolation money or failing to exhaust all necessary deliberations.

4. Conclusion

Therefore, all appeals are 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.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Jae-hyung (Presiding Justice)