[1] Whether an administrative agency may actually examine whether an organization that reported the establishment of a trade union falls under any item of Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (affirmative) and the standard for substantive examination

[2] The scope of "worker" under Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act in relation to the public official trade union

[1] Considering that the purport of Article 2 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) requires an administrative agency to examine whether an organization which reported the establishment of a trade union constitutes an item of Article 2 subparag. 4 of the same Act, is to ensure workers’ autonomous and democratic exercise of the right to organize by preventing the unestablishment of a trade union that fails to meet the actual requirements as a trade union, an administrative agency may substantially examine whether the pertinent organization falls under any item of Article 2 subparag. 4 of the Trade Union

However, in view of the fact that a broad examination authority is recognized to an administrative agency, if the report system is arbitrarily made and the report system is likely to be de facto changed to a permission system, the Trade Union Act stipulates only the report of establishment and the bylaws as documents to be submitted at the time of the report of establishment (Article 10(1)), and stipulates that an administrative agency shall issue a certificate of report within three days from the time of receipt of the report, except where there is any reason for supplementation or rejection (Article 12(1)), etc., the administrative agency shall examine whether it falls under any of the items of Article 2 subparag. 4 of the Trade Union Act based on the report of establishment and the contents of the bylaws once submitted, and may decide whether it falls under any of the items of Article 2 subparag. 4 of the Trade Union Act after a substantial examination on matters other than the regulations

[2] In full view of the main sentence of Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) and Articles 17(2) and 6(3) of the Act on the Establishment, Operation, etc. of Public Officials’ Labor Unions, “worker” under Article 2 subparag. 4(d) of the Trade Union Act in relation to a public official’s trade union is, in principle, limited to “person who maintains public official qualification,” and a public official dismissed, dismissed, or dismissed from office shall be deemed to fall under “person who is not an employee,” except where the Labor Relations Commission applied for remedy against unfair labor practices

[1] Article 12(3)1 of the Trade Union and Labor Relations Adjustment Act; Articles 21(2) and 37(2) of the Constitution / [2] Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act; Articles 6(3) and 17(2) of the Act on the Establishment and Operation of Public Officials’ Unions

National Public Officials Trade Union (Law Firm citizen, Attorneys Jeon Young-young, Counsel for defendant-appellant)

The Minister of Employment and Labor (Law Firm Barun, Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu25239 decided February 16, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the assertion that Article 12(3)1 of the Trade Union and Labor Relations Adjustment Act is unconstitutional

According to Articles 10(1), 12(1), and 12(3)1 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), a person who intends to establish a trade union shall submit a report of establishment to an administrative agency along with the bylaws. An administrative agency shall issue a certificate of report within three days from the receipt of the report, except where there is any ground for supplement or return. However, if a trade union which reported establishment meets the passive requirements of a trade union under each item of Article 2(4) of the Trade Union and Labor Relations Adjustment Act, it shall return the report of establishment.

The purport of the Trade Union Act’s above-mentioned reporting system is to protect and foster trade unions so that trade unions can continue to exist as autonomous and democratic organizations through efficient maintenance and management by administrative agencies regarding the organization system of trade unions (see Supreme Court Decision 96Nu9829, Oct. 14, 1997, etc.).

However, even if an organization which reported the establishment falls under any item of Article 2 subparag. 4 of the Trade Union Act and is deemed to have violated the concept of a trade union, or to have failed to meet the independence or democracy as a trade union, the report on establishment should be accepted as a condition and the requirement for autonomy can be demanded ex post facto correction. Thus, it is likely that a trade union's autonomy and democracy may be infringed because it could not prevent the unestablishment of a trade union which failed to meet the actual requirements of a trade union. This is inconsistent with the purport of the report system mentioned above.

Therefore, Article 12(3)1 of the Trade Union Act provides that an organization which submitted a report of establishment shall examine whether it falls under any of the items of Article 2 subparag. 4 of the same Act and return the report of establishment in such a case shall be an inevitable measure to ensure autonomy, which is an essential element of a trade union, and shall not be deemed as a permit for the association establishment as prohibited under the latter part of Article 21(2) of the Constitution, even if it is specified as a result of the examination in advance, in that it is necessary to accept the report of establishment, unless it falls under any of the items of Article 2 subparag. 4 of the same Act. It does not mean that an organization violates the principle of excessive prohibition (see Constitutional Court Order 2011Hun-Ba53, Mar. 29, 2012).

Therefore, the argument that Article 12(3)1 of the Trade Union Act is unconstitutional against Article 21(2) and Article 37(2) of the Constitution is without merit.

2. As to the argument regarding the examination of whether a dismissed public official is admitted

A. (1) In light of the purport that the Trade Union Act requires an administrative agency to examine whether an establishment report falls under any item of Article 2 subparag. 4 of the same Act with respect to an administrative agency that reported the establishment of a trade union, and thereby guaranteeing workers’ autonomous and democratic exercise of the right to organize by preventing the unestablishment of a trade union that failed to meet the substantive requirements, an administrative agency may actually examine whether the pertinent organization falls under any item of Article 2 subparag. 4 of the Trade Union Act. However, if an administrative agency recognizes a broad review authority over an administrative agency, it is likely that the report system may be arbitrarily changed into the permission system. The Trade Union Act provides only the report and bylaws with documents to be submitted at the time of the report on establishment (Article 10(1)), and stipulates that an administrative agency shall issue a certificate of report within three days from the time of receipt of the report (Article 12(1)) except in cases where there is a reason or rejection of the report (Article 12(1)), an administrative agency once it receives a report on establishment and a report on establishment, it should be considered as an objective circumstance.

(2) Meanwhile, Article 2 subparag. 4(d) of the Trade Union Act provides that a trade union shall not be deemed to be a trade union if a person who is not a worker permits the joining of a non-worker. In such cases, Article 17(2) of the Act on the Establishment, Operation, etc. of Public Officials’ Unions (hereinafter “Public Officials’ Unions Act”) applies to a public official’s trade union. In such a case, “worker” shall be deemed to be a “public official,” and Article 6(3) of the Public Officials’ Unions Act provides that a public official is dismissed, dismissed or dismissed and applied for remedy for unfair labor practices to the Labor Relations Commission, the public official shall not lose

Comprehensively taking account of the above provisions, “worker” under Article 2 subparag. 4(d) of the Trade Union Act is, in principle, limited to “a person who maintains his/her qualification as a public official,” and a public official dismissed, dismissed, or dismissed from office shall be deemed to fall under “a person who is not an employee,” except where the Labor Relations Commission applied for remedy against unfair labor practices with

B. (1) According to the facts acknowledged by the lower court, the Plaintiff: (a) was a public official labor union newly established through a merger resolution between the Korean Public Officials’ Union (hereinafter “former”) and the Korean Democratic Public Officials’ Union, and the court public official labor union; (b) After the above merger resolution, the Defendant requested correction from the former major labor union by ascertaining that there was a public official dismissed, dismissed, or dismissed from among the members of the former major labor union (hereinafter “North Korean Public Officials’ Union”); and (c) notified that the former major labor union is not deemed a labor union under the Public Officials’ Union Act for reasons of failing to comply with the request for correction thereafter pursuant to Article 9(2) of the Enforcement Decree of the Trade Union Act; and (d) under such circumstances, the Defendant submitted the establishment report on February 25, 2010; and (e) the Defendant issued the instant disposition to dismiss the Plaintiff.

Examining the above facts in light of the legal principles as seen earlier, considering the circumstances in which the Defendant received the establishment report of this case from the Plaintiff which merged the former major labor union under the Act on the Union of Public Officials when the Defendant notified the former major labor union that it would not be deemed a trade union under the Public Officials' Unions, the Defendant may examine whether the dismissal public official who was a member of the former major labor union acquires the Plaintiff’s membership and still remains as a member by acquiring the Plaintiff’s membership due to the effect of the merger. As such, the Defendant’s examination of the membership of the dismissed public official based on the information on the dismissed public official already known at the time of the establishment report of this case is different from that of the overall and broad examination for all the union members. Thus, it is legitimate for the Defendant to substantially examine whether the dismissal public official falls under Article 2 subparag. 4(d) of the Trade Union Act because the actual dismissed

In the same purport, the lower court is justifiable to have determined that the Defendant’s review on whether to admit a dismissed public official is lawful.

(2) Furthermore, according to the reasoning of the lower judgment, the lower court determined that, based on the facts stated in its reasoning, the disposition of this case was lawful on the ground that: (a) in the case of Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5, who performed duties, such as the chief of the Plaintiff Secretariat, the standing committee, or the chairperson of the Special Committee, among the public officials in the position at which the Defendant is at issue of joining the association members; and (b) in light of the status and authority of the public officials in the position of the Plaintiff, the said public officials cannot be considered as

In light of the records, the above determination by the court below is just, and so long as it is acknowledged that the plaintiff permitted the admission of a dismissed public official, i.e., a person who is not an employee, pursuant to Article 12 (3) 1 of the Trade Union Act, the return disposition of this case is legitimate, and it is not necessary to separately examine whether the plaintiff's autonomy has been damaged due to the admission of a person who is not an employee. In addition, it cannot be deemed that the court below acknowledged the admission of some of the dismissed public officials who are in question of the defendant

(3) Therefore, the lower court did not err by misapprehending the legal doctrine on the method of examination on the establishment report of a trade union, by failing to comply with the legal doctrine on the addition of grounds for disposition, by misapprehending the legal doctrine on the autonomy of a trade union or the determination of the scope of union members, or by omitting judgment as to whether the Plaintiff’s autonomy has been damaged, as otherwise

3. As to the assertion regarding the examination of whether the general manager is admitted

According to Article 6 (2) 1 of the Public Officials' Union Act and Article 3 subparagraph 1 (b) of the Enforcement Decree of the same Act, the so-called "general manager" who is a public official mainly engaged in the duties of directing, supervising, or controlling other public officials in the department by assisting the head of the department in accordance with directives or division of affairs shall not join the Public Officials' Union.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the disposition of the return of this case was lawful on the ground that the non-party 6, the head of the branch office affiliated with the plaintiff, etc., was in the position of general manager, and

However, in the records, there is no objective reason to suspect whether the Defendant joined the general manager at the time when the Plaintiff submitted the report of establishment from the Plaintiff, and there is no material to verify which circumstance the Defendant investigated the contents of the duties of the union members at issue. In this case, the Defendant’s substantial examination of the membership of the general manager after an overall investigation of the members’ contents of duties exceeds the limit of its authority in light of the above legal principles. Even if Nonparty 6, etc. is a general manager, it is difficult to view that the return of the Plaintiff’s report is lawful.

Therefore, the court below erred in recognizing the permission of the general manager as a legitimate ground for rejection on the premise that the examination of the general manager's membership is lawful. However, as seen earlier, the disposition of this case is lawful as long as the plaintiff's permission of the general manager's membership is acknowledged as a ground for rejection by the dismissal public official. Thus, this error does not affect the conclusion of the judgment.

4. Conclusion

Therefore, the appeal is 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.

Justices Min Il-young (Presiding Justice)