New Passenger Co., Ltd. (Attorney Kim-dong, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

National Public Transport and Services Workers' Union (Law Firm, Attorneys Kang Jong-sung et al., Counsel for the plaintiff-appellant)

May 21, 2014

Seoul Administrative Court Decision 2013Guhap102 decided September 12, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the part arising from the participation in the appeal.

The judgment of the first instance court is revoked. On December 10, 2012, the Central Labor Relations Commission revoked the final decision on the application for reexamination of unfair labor practice between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”). The final decision on the application for reexamination of unfair labor practice rendered by the Central Labor Relations Commission is revoked.

1. Quotation of the first instance judgment

The court's explanation about the instant case is as stated in the reasoning of the judgment of the first instance, except for the addition of judgment as stated in the following Paragraph 2. Therefore, this court's explanation is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the

2. Judgment on the plaintiff's assertion in the appellate court

(a) Whether an intervenor has a benefit in filing an application for remedy;

1) The plaintiff's assertion

Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act takes the aid of protecting trade unions and members as victims, and the Intervenor cannot be deemed to have suffered any loss due to the Plaintiff’s wage support act against the Nonparty. Even if the National Labor Relations Commission considers this as an unfair labor act and issued a remedy to the Plaintiff, the Intervenor’s intent or purpose cannot be achieved by the instant lawsuit in the light that the Intervenor’s full-time officer was exempted from working hours equal to that of the Nonparty, or the part paid to the Nonparty was excessive

2) Determination

The plaintiff's assertion includes the plaintiff's assertion that there is no benefit for the intervenor to file a remedy against the non-party's payment of benefits.

According to the Trade Union Act, where there are not less than two trade unions established or joined in one business or workplace regardless of its structural form, a trade union shall request a representative bargaining trade union (including a representative bargaining organization consisting of not less than two trade unions; hereinafter the same shall apply) to negotiate: Provided, That this shall not apply where an employer agrees not to undergo the procedures for simplification of bargaining windows within a time limit set for autonomous determination of a representative bargaining trade union pursuant to paragraph (2) (Article 29-2(1)). In principle, all trade unions participating in the procedures for simplification of bargaining windows shall autonomously determine within the time limit prescribed by Presidential Decree (Article 29-2(2)), but where an employer fails to obtain consent from the whole members of a trade union participating in the procedures for simplification of bargaining windows without designating a representative bargaining trade union within such time limit, a trade union shall be the representative bargaining trade union (including where not less than two trade unions become the majority of all union members of a trade union participating in procedures for simplification of bargaining windows by delegation or combination, etc.), and where such trade union does not have reasonable authority to enter into a single bargaining trade union or collective agreement (2).

The following circumstances revealed through the provisions of the Trade Union Act, i.e., ① a labor union which has not become a representative bargaining trade union (hereinafter “small trade union”) is an entity that can enjoy the results achieved on the basis of substantial equality with an employer through a representative bargaining trade union (see Constitutional Court Order 2011Hun-Ma338, Apr. 24, 2012). The exercise of collective bargaining rights by a small number of trade unions is realized through a representative bargaining trade union; ② if the autonomy of a representative bargaining trade union is infringed by an employer, the collective bargaining rights of a small number of trade unions may not be infringed if it is a principle that a trade union participating in the procedures for simplification of bargaining windows autonomously forms a labor union; ③ a representative bargaining trade union may also be a representative bargaining trade union; ④ a labor union which is a small number of union members may negotiate or participate in joint bargaining by delegation or means; ④ a labor union which is an actual need to protect the full-time officer’s benefits from an act of violation of Article 28(2) of the Trade Union Act, regardless of whether an act of violation of its full-time.

Therefore, the intervenor has the interest to apply for relief to the non-party to the full-time officer of the previous North Korean Automobile Labor Union established in the same workplace. We cannot accept the plaintiff's assertion that differs from this opinion.

B. Whether the Plaintiff’s wage support act constitutes unfair labor practice

1) The plaintiff's assertion

Since the former North Korean Automobile Labor Union was guaranteed more than paid full-time activities through the conclusion of the instant collective agreement and wage agreements, there was no violation of autonomy and democracy, and there was no intent of unfair labor practices to the Plaintiff. Therefore, unfair labor practices are not established.

2) Determination

As seen earlier, the Trade Union and Labor Relations Adjustment Act was amended by Act No. 9930 on January 1, 2010, and the act of receiving wages from an employer and providing wages to the full-time officer from the employer from July 1, 2010 is all prohibited. However, as long as an employee is determined by a collective agreement or consented by the employer, it was allowed to perform the activities prescribed in Article 24(4) to the extent that it does not exceed the limit of exemption from working hours, and it was prohibited that a trade union conduct industrial actions for the purpose of demanding and accomplishing payment of wages in violation of this provision.

It is interpreted that the full-time officer’s payment of wages from the employer is an unreasonable labor-management practice in terms of the autonomy of the labor union, but on the other hand, considering the net function of the full-time officer system of the labor union that contributes to the formation of a stable labor-management relationship by taking charge of the labor management affairs of the employer, it is interpreted that the structure of “the prohibition of the principle of subsidization of full-time officer’s wages and the permission of exceptional limits of exemption from working hours” is accepted in the necessity of continuous protection and support of the labor union activities at a certain level (see Constitutional Court Order 2010Hun-Ma606, May 29,

In addition to the stipulated forms of Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, the Plaintiff’s act of recognizing working hours in excess of contractual work hours and paying excessive wages to the Nonparty constitutes unfair labor practices under the latter part of Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, regardless of the existence of a company engaging in unfair labor practices.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

The plaintiff's claim shall be dismissed as it is without merit. In conclusion, the judgment of the court of first instance is justifiable. Therefore, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)