2010Kahap48 Disposition for collective bargaining abortion

○ Trade Union

Seoul Central District

Representative Maximum ○○○

Attorney Kim Young-deok, Counsel for the plaintiff-appellant

Korean Broadcasting System

Yeongdeungpo-gu Seoul

Representative President Kim ○-ok

Law Firm, Kim & Lee LLC, Counsel for defendant-appellant

Attorney Lee Jong-sung, Attorneys Lee Dong-sung, Lee Dong-sik, and Kim Jong-ro

March 10, 2010

1. The respondent shall faithfully comply with the applicant’s collective bargaining claim regarding the matters to be negotiated listed in the separate sheet.

2. Litigation costs shall be borne by the respondent;

Paragraph 1 of this Article shall also apply.

1. Facts of recognition;

According to the records and the purport of the whole examination, the following facts are substantiated:

A. The applicant is a nationwide unit trade union with the aim of organizing workers in nationwide and media-related industries. The respondent is a corporation established with the aim of contributing to the development of broadcasting culture and the improvement of public welfare by efficiently conducting domestic and foreign broadcasts and allowing the viewing of broadcasting throughout the country.

B. Around December 18, 2009, ○○○ and 545 employees belonging to the respondent joined the applicant and the applicant’s KBS branch was established. On January 13, 2010, the applicant KS headquarters (hereinafter “instant headquarters”) was changed into the organization.

C. The Claimant delegated the Respondent’s right to collective bargaining with the Respondent and delegated the right to collective bargaining from December 29, 2009 to the headquarters of this case. However, the Respondent had already been organized by KBS trade unions, which are corporate unit trade unions, and the Respondent refused its demand on the ground that it cannot be recognized as an object of collective bargaining because it constitutes multiple trade unions prohibited by the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”). The Claimant requested collective bargaining on or after February 12, 2010, but the Respondent did not comply with it for the same reason.

2. The parties' assertion

A. Summary of the applicant's assertion

The applicant is a primary-company industrial unit trade union and does not correspond to multiple labor unions prohibited from being established under the Trade Union Act, because the applicant is different from the KBS trade union, a company-level trade union, and the respondent must comply with the applicant's request for collective bargaining.

B. The gist of the respondent's assertion (1) is that the respondent has already established the headquarters of this case where the applicant shares the organizational target and then demanded collective bargaining against the respondent violates the purport that the Trade Union Act does not recognize multiple labor unions. (2) The applicant established the headquarters of this case without due process and delegated the collective bargaining right to the headquarters of this case to the headquarters of this case.

(3) The instant headquarters was established for the purpose of the strike against the current regime, including the nullification of the appointment and appointment of Kim○, the president of the respondent, and the contents of working conditions are clearly clear. Thus, the purpose of the collective bargaining request is unlawful. (4) The above union members, who were members of the applicant, were originally members of the KBS trade union, withdraw from the headquarters and join the applicant on the ground that the enforcement body was not in compliance with their good will, and this is contrary to the principle of good faith.

(5) Since collective agreements between the KBS Trade Union and the respondent are applied to the members belonging to the respondent who have joined the applicant, there is no need to preserve the application for provisional disposition of this case.

3. Determination

A. (1) As to whether the applicant’s request for collective bargaining to the respondent is contrary to the purport of prohibiting multiple labor unions under the Trade Union Act (amended by Act No. 9930, Jan. 1, 2010) Article 5(1) of the former Trade Union Act (amended by Act No. 9930, Mar. 13, 1997) regarding the right to be preserved (1) on the first claim (1) on the right to be preserved, “where a trade union is organized in one business or workplace, the provision of Article 5 shall be applied, notwithstanding the provision of Article 5.

31. Until now, a trade union cannot establish a new trade union with which it is organized (Article 7(1) of the Addenda of the current Trade Union Act (Article 7(1) of the Addenda of the current Trade Union Act).

30. In a case where an industrial trade union is extended to the end and the remainder is the same as that of the existing company-level trade union, even if a newly established trade union overlaps with an existing company-level trade union, the substance of its structural form is not limited to only the employees of a business or workplace, the industrial trade union does not constitute a multiple trade union, the establishment of which is prohibited under the aforementioned supplementary provision in relation to the existing company-level trade union (Supreme Court Decision 2006Du15400 Decided December 24, 2008).

Therefore, even if the respondent is established as a company-level trade union, it does not go against the above supplementary provision of the Trade Union Act to request collective bargaining to the respondent who is the primary company-based unit trade union. (b) However, the "branch or chapter of the primary company-based and regional unit trade union for the organization of one business or workplace which has the right to determine independent working conditions" is an independent organization with independent rules and executive organs, which can be seen as being equivalent to the unit trade union of each company as it is prohibited to newly establish when the company-level trade union is already established (see the above Supreme Court Decision 1). However, according to the health provision, the headquarters of this case can only be seen as equivalent to the unit trade union of each company-level. (See the above Supreme Court Decision 4), according to the records, the applicant's signature and seal on the amended rules of No. 1, 202, 204 and 207, and the applicant's signature and seal on the amended rules of No. 1, 2002

In light of the above facts, even if the headquarters of this case intends to conduct an industrial action, it shall obtain prior consent from the chairperson (Article 46 of the Claimant's Code) of the Claimant's Code, it shall not be deemed as equivalent to a company-level trade union, because it is difficult to view that the headquarters of this case is an independent organization and has the ability to conduct independent collective bargaining and sign collective agreements not by delegation of the Claimant who is the primary business unit industrial trade union. (C) Meanwhile, even if the Respondent does not fall under a multi-unit trade union prohibited by the Respondent or headquarters of this case, the Respondent asserts that the Respondent does not have the authority to request collective bargaining with respect to matters unique to the Respondent, but the Respondent does not have the authority to request collective bargaining with respect to the Respondent in order to prevent the dualization of the bargaining channel, but it is the essential authority of the trade union, and there is no legal basis to limit it in this case. (2) Second, the judgment on the Claimant's violation of procedures.

In order to establish the headquarters of this case, the respondent must have a resolution of the Central Committee to delegate the right to collective bargaining, and the applicant has not gone through these procedures. Thus, the respondent's argument that the applicant did not go through these procedures. As seen earlier, as long as ○○○ and 545 persons, who are workers belonging to the respondent, were members of the applicant around December 18, 2009, as seen earlier, the respondent is merely an internal issue whether the applicant should organize any organization or not, and therefore, the respondent may not be considered as a defect in the establishment of the headquarters of this case.

10. Each applicant has delegated the authority to establish the headquarters to the chairperson of each applicant, and the largest ○○, the chairperson of each applicant, establishes the headquarters of this case and accordingly, establishes the headquarters of this case and delegates the right to collective bargaining with the respondent to the headquarters of this case.

(3) Judgment on the third argument

There is no evidence to acknowledge that the headquarters of this case was established for the purpose of the strike against the present political authority, such as nullification of appointment of Kim○, the president of the respondent, and that there is no interest in the contents of working conditions, and thus, the purpose of the applicant’s demand for collective bargaining is illegal.

(4) Judgment on the fourth argument

There is no vindication that the withdrawal of members from the KBS trade union and the joining of applicants violates the principle of good faith.

B. Determination on the necessity of preservation

Since the right to collective bargaining does not only have the meaning as an objective value order but also should be regarded as a private legal right realized by judicial procedures, each trade union should guarantee its own right to collective bargaining and the right to collective bargaining in cases where a trade union exist concurrently. Even if one of the union affiliated with a partnership requested collective bargaining but the employer did not recognize it and the union's refusal of collective bargaining without recognizing it, even if the union members of the union may see the benefits of the collective agreement established with the employer pursuant to Article 35 of the Trade Union Act, they shall lose an opportunity to see the benefits of the collective bargaining and collective agreement of the trade union to which they belong, and if a collective bargaining is refused at an individual workplace based on a nationwide trade union, the existence of the union shall be lost. Therefore, as seen earlier, as long as the respondent refuses to demand collective bargaining without justifiable grounds, the application for provisional disposition in this case is also recognized.

4. Conclusion

If so, the application for provisional disposition of this case is clearly explained the right to preserve and the need for preservation, and it is so accepted and decided as per Disposition.

Judges Yang Jae-young

Judges Lee Young-min et al.

Judge Lee Hy-young

A person shall be appointed.