[1] Criteria for determining “justifiable cause” in the employer’s refusal and dismissal of collective bargaining

[2] In a case where a trade union sent by facsimile a letter of request for bargaining unilaterally demanding collective bargaining without prior consultation with a company within 70,000 days after the employee is employed by the trade union, and did not state specific matters regarding collective bargaining in the letter of request for bargaining; the date and time of bargaining was 2 days after the date and time of document transmission; and the place of bargaining was determined as one’s office, the case holding that it is difficult to readily conclude that the Defendant, a business owner, was refusing or neglecting collective bargaining without good cause merely because he did not appear at the time and place specified in the letter of request for bargaining in terms of social norms

[1] Article 81 subparagraph 3 of the Trade Union and Labor Relations Adjustment Act / [2] Article 81 subparagraph 3 of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 97Nu8076 delivered on May 22, 1998 (Gong1998Ha, 1777) Supreme Court Decision 2005Do8606 Delivered on February 24, 2006 (Gong2006Sang, 560)

Defendant

Prosecutor and Defendant

Attorney Lee Dong-ho

Ulsan District Court Decision 2009No61 decided July 24, 2009

The conviction part of the judgment of the court below is reversed, and that part of the case is remanded to the Ulsan District Court Panel Division. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Article 81 subparag. 3 of the Trade Union and Labor Relations Adjustment Act provides that "no employer may refuse or neglect the conclusion of a collective agreement with the representative of a trade union or a person delegated by a trade union or any other collective bargaining without any justifiable reason." Whether there is a justifiable reason for refusal or neglect of an employer in relation to collective bargaining shall be determined based on whether it is difficult for an employer to expect the performance of the collective bargaining obligation under the generally accepted social norms by taking into account the bargaining authority of the trade union, the bargaining time and place as requested by the trade union, the bargaining place, the bargaining agreement, and the attitude of such bargaining (see Supreme Court Decision 2005Do8606, Feb. 24,

According to the reasoning of the judgment below, the court below acknowledged the facts in its reasoning based on the evidence duly adopted by the court of first instance, and determined that the Ulsan District Construction Workers' Union (hereinafter "the union of this case") was an unfair labor practice prohibited under the Trade Union and Labor Relations Adjustment Act as long as the defendant did not comply with the request without any justifiable reason, since the non-indicted 1, a member of the union of this case, demanded collective bargaining to the defendant, who is the business owner of the non-indicted 2 Co., Ltd. (hereinafter "the company of this case") working for the non-indicted 1, a member of the union of this case,

However, according to the reasoning of the judgment below and the records of this case, Non-Indicted 1 was employed as an official contact with the company of this case on August 21, 2006, and the term of the labor contract was explicitly determined until the completion of the construction work scheduled to be completed on August 31, 2006. The company of this case and Non-Indicted 1 agreed to pay 9 hours a day orally and 120,000 won a day daily. Non-Indicted 1 initially worked 9 hours a day a day a day a day a day a day a day from August 23, 2006 to the site manager from August 23, 2006. The association of this case asserted that Non-Indicted 1 worked 8 hours a day a day a day a day a day a day a day from August 28, 2006 without prior consultation with the company of this case. The association of this case, without mentioning the fact that it sent the company of this case by facsimile the negotiation request of this case to the company of this case, 20.

As can be seen, Nonindicted 1 sent a written request for negotiation of this case, which unilaterally demanded collective bargaining without prior consultation with the instant company, by facsimile at 70,000 days after Nonindicted 1 was employed by the instant company, and did not state specific matters regarding collective bargaining in the written request for negotiation of this case, and the date and time of negotiation was determined two days after the date and time of document transmission, and the place of negotiation was determined as one’s own partnership’s office. In light of the contents, delivery method, etc. of the said written request for negotiation of this case, it is difficult to readily conclude that the Defendant’s failure to attend the date and place specified in the said written request for negotiation of this case merely refused or neglected collective bargaining without justifiable grounds, inasmuch as it is difficult to view that the demand for bargaining through

Nevertheless, the court below considered this as unfair labor practice and found the defendant guilty of violating the Trade Union and Labor Relations Adjustment Act among the facts charged in this case. In so doing, the court below erred by misapprehending the legal principles as to justifiable reasons for refusing collective bargaining and neglecting collective bargaining, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the Prosecutor’s Grounds of Appeal

In light of the reasoning of the judgment below and the record, the court below affirmed the judgment of the court of first instance which acquitted the part of the charges of violation of the Labor Standards Act due to unfair dismissal and violation of the Labor Standards Act due to unpaid retirement allowances on the ground that there is no proof of crime, and there is no violation of the rules of evidence or misapprehension of the legal principle as

3. Conclusion

Therefore, the guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)