[1] The purpose or purpose of the Trade Union and Labor Relations Adjustment Act to promote collective bargaining procedures by introducing the simplification of bargaining windows to multiple trade unions

[2] In a case where the contents of a collective agreement that a representative bargaining trade union entered into with an employer discriminates against a trade union or union members who did not become a representative bargaining trade union without reasonable grounds, whether such agreement constitutes a violation of the duty of fair representation (affirmative)

[3] The scope of power of representation held by a representative bargaining trade union in the process of simplification of bargaining windows

[4] In a collective agreement entered into with a representative bargaining trade union by an employer, where a representative bargaining trade union and an employer agree, consult, or deliberate and decide on the working conditions of workers in a workplace, including those who belong to a trade union not a representative bargaining trade union, without any provision in the collective agreement itself, whether the agreement, consultation, or deliberation and decision fall under the scope of the representative bargaining trade union’s power of representation (negative in principle) / Whether the agreement, consultation, or decision-making fall under the scope of the representative bargaining trade union’s power of representation (negative)

[1] The main purpose or purpose of the Trade Union and Labor Relations Adjustment Act is to establish an efficient and stable collective bargaining system by effectively resolving the problems such as the labor union’s exercise of independent collective bargaining rights between multiple trade unions or the labor union and the employer’s anti-competitive and conflict, decrease in the efficiency of collective bargaining, increase in expenses, etc.

[2] A trade union that has not become a representative bargaining trade union under the system of simplification of bargaining windows is unable to independently exercise the right of collective bargaining. Thus, in order to protect trade unions that have not become a representative bargaining trade union, the Trade Union and Labor Relations Adjustment Act imposes an obligation of fair representation on an employer and a representative bargaining trade union to prevent discrimination against either the trade union that has participated in the procedures for simplification of bargaining windows or its members without reasonable grounds (Article 29-4(1)). The duty of fair representation functions as an institutional device to prevent infringement on the essential contents of collective bargaining rights guaranteed by the Constitution, and serves as a justifiable ground to justify the effect of collective agreement concluded between a representative bargaining trade union and an employer on other trade unions that have participated in the procedures for simplification of bargaining windows. Therefore, the content of collective agreement concluded with an employer and a representative bargaining trade union constitutes a violation of the duty of fair representation. In light of the purport and function of such duty of fair representation, etc., the duty of fair representation should be observed not only in the process of collective bargaining or the content of collective agreement, which is its result, but also in the process of collective agreement.

[3] Considering the language and text of the provisions of the Acts and subordinate statutes pertaining to the simplification of bargaining windows and the duty of fair representation, the purpose and purpose of the simplification of bargaining windows, the necessity for guaranteeing the three labor rights of a trade union which is not a representative bargaining trade union and its members, etc., the power of representation held by a representative bargaining trade union in the procedures for simplification of bargaining windows is limited to the specific process of implementing collective bargaining and collective agreements (including supplementary bargaining and conclusion of supplementary agreements) concluded in the procedures for simplification of bargaining windows unless otherwise expressly provided for by the Acts and subordinate statutes, and regardless of

[4] In a collective agreement entered into with a representative bargaining trade union by an employer, where a representative bargaining trade union and an employer agree, consult or decide on the working conditions of workers in a workplace including those who do not become a representative bargaining trade union, without any provision in the collective agreement itself, if the agreement, consultation or deliberation cannot be deemed as a specific implementation of a collective agreement and it cannot be deemed as a supplementary agreement, in light of the literal meaning thereof, the above agreement, consultation or deliberation and decision-making cannot be deemed as a specific implementation of a collective agreement, and it is reasonable to deem that such agreement, consultation or decision-making can be comprehensively delegated so that they can determine the working conditions in a form other than a collective agreement pursuant to the collective agreement. Therefore, the above agreement, consultation or decision-making cannot be deemed as falling under the scope of the representative bargaining trade union. Nevertheless, under the collective agreement provisions of a representative bargaining trade union, an employer and a representative bargaining trade union provide that only a representative bargaining trade union may make an agreement, consultation or decision-making on matters related to the working conditions of workers who belong to a trade union not a representative bargaining trade union with an employer.

[1] Articles 29(1) and 29-2(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act / [3] Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act / [4] Article 29-4(1) of

[1] [2] Supreme Court Decision 2016Du36956 Decided October 31, 2017 (Gong2017Ha, 2198), Supreme Court Decision 2017Da218642 Decided August 30, 2018 (Gong2018Ha, 1914), Supreme Court Decision 2017Du40655 Decided September 13, 2018, Supreme Court Decision 2016Du41224 Decided December 27, 2018

Conven Wnn Anthromobrus Limited Liability Company (Attorneys Kim Jae-hoon et al., Counsel for the plaintiff-appellant-appellee)

The Chairman of the National Labor Relations Commission

National Metal Trade Union (Law Firm Han, Attorneys Song Young-pop et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Nu52882 decided January 18, 2017

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

A. 1) Workers may freely organize a trade union or join it, and a trade union may demand an employer to conduct collective bargaining for its members. Meanwhile, according to the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), where at least two trade unions exist in a business or workplace unit regardless of their structural form, each trade union shall, in principle, determine a representative bargaining trade union in accordance with the procedures for the simplification of bargaining windows and request an employer to conduct collective bargaining (main sentence of Article 29-2(1)). Accordingly, the representative of a representative bargaining trade union has the authority to negotiate and conclude a collective agreement with an employer on behalf of all the trade unions or union members requesting the bargaining (Article 29(2)). In addition, Article 29-5 of the Trade Union Act provides that in relation to the scope of the exercise of the power of representation of a representative bargaining trade union among matters not directly related to the collective bargaining and the conclusion of collective agreements, trade unions referred to in Articles 55(3), 72(3) and 81 subparag. 3, etc. of the same Act shall be deemed a representative bargaining trade union.

The main purpose and purpose of the Trade Union Act is to establish an efficient and stable collective bargaining system by effectively resolving the problems such as the labor union that may arise when multiple trade unions exercise their independent collective bargaining rights, the labor union or the labor union and the employer’s labor union’s reflect and conflict, the decrease in the efficiency of collective bargaining, and the increase in expenses (Supreme Court Decision 2016Du36956 Decided October 31, 2017).

2) A trade union which has not become a representative bargaining trade union under the system of simplification of bargaining windows is unable to independently exercise the right of collective bargaining. In order to protect trade unions which have not become a representative bargaining trade union, the Trade Union Act imposes an obligation of fair representation on an employer and a representative bargaining trade union to prevent discrimination against either the trade union which has participated in the procedures for simplification of bargaining windows or its members without reasonable grounds (Article 29-4(1)). The duty of fair representation functions as an institutional device to prevent infringement on the essential contents of collective bargaining rights guaranteed by the Constitution, and is justifiable to justify the effect of collective agreements concluded between a representative bargaining trade union and an employer on other trade unions which have participated in the procedures for simplification of bargaining windows. Therefore, the content of collective agreements concluded with an employer by a representative bargaining trade union constitutes a violation of the duty of fair representation in cases of discrimination against a trade union which has not become a representative bargaining trade union or its members. In light of the purport and function, etc. of such duty of fair representation, the duty of fair representation should also be observed in the process of implementation of collective agreements.

3) Considering the language and text of the statutory provisions pertaining to the simplification of bargaining windows and the duty of fair representation, the purpose and purpose of the simplification of bargaining windows, the need to guarantee the three labor rights of a trade union which is not a representative bargaining trade union and its members, etc., the power of representation held by a representative bargaining trade union in the procedures for simplification of bargaining windows may only extend to the specific process of implementing collective bargaining and collective agreements concluded (including supplementary bargaining and conclusion of supplementary agreements) unless otherwise expressly provided for by the statute, and regardless of such, to the overall process of labor-management relations.

In a collective agreement concluded with a representative bargaining trade union by an employer, where a representative bargaining trade union and an employer agree, consult, or deliberate and decide on the working conditions of workers in the workplace, including those who belong to a trade union not a representative bargaining trade union, without any provision in the collective agreement itself, if such agreement, consultation, or deliberation and decision cannot be deemed the specific implementation of a collective agreement and it cannot be deemed as a supplementary agreement, in light of the literal meaning thereof, the above agreement, consultation, or deliberation and decision-making cannot be deemed to constitute a specific implementation of a collective agreement, and it is reasonable to deem that such agreement, consultation, or decision-making can be comprehensively delegated so that they can determine the working conditions in a form other than a collective agreement. Therefore, the above agreement, consultation, or decision-making cannot be deemed to fall under the scope of the representative bargaining trade union’s power of representation. Nevertheless, under the collective agreement, the provision that an employer and a representative bargaining trade union may make an agreement, consultation, or decision-making on matters related to the working conditions of workers who belong to a trade union not a representative bargaining trade union with an employer.

B. The lower court determined that Article 103 of the instant collective agreement, which provides that the representative bargaining trade union’s power to represent after the conclusion of a collective agreement shall not be granted to the additional agreement, consultation, deliberation of working conditions, etc., constitutes a violation of the duty of fair representation because it discriminates against the Defendant’s assistant participant who is another trade union by granting authority such as agreement, consultation, etc. to the representative bargaining trade union beyond the scope of the representative authority of the representative bargaining

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the legal status or authority of the representative bargaining trade union, the duty of fair representation, and the burden of proof, as otherwise alleged in the grounds of appeal.

2. As to the fourth ground for appeal

The lower court determined that Article 48 of the Detailed Guidelines for the instant collective agreement only designated the date for the establishment of a representative bargaining trade union as a paid holiday without reasonable grounds constituted a violation of the duty of fair representation as it discriminates against the Defendant’s Intervenor who is another trade union.

Examining the foregoing legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the duty of fair representation, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)