[1] Where a collective agreement provides a pre-agreement clause on personnel disposition, but it can be seen that the employer's personnel disposition without such agreement is valid

[2] The case holding that in a case where an employer ordered personnel management for executive officers of a trade union without a prior agreement with the trade union even though a collective agreement provided that a trade union should obtain prior agreement on the personnel management of executive officers of a trade union, the trade union cannot be deemed to have renounced or abused the right of prior agreement on the ground that the principal employer failed to

[1] In cases where an employer requires the prior consent or consent of a trade union when taking a personnel disposition, or where a collective agreement provides for a personnel disposition in light of the agreement with a trade union by discussing the matters on the personnel disposition, a personnel disposition without undergoing such procedures shall be deemed null and void in principle. However, even if a prior agreement provision is established, it is not possible to exercise the employer’s right to personnel management, regardless of any circumstances, and where an employer’s “in cases where it is recognized that a trade union abused the prior agreement or renounced the exercise of the right to personnel management,” a personnel disposition without such agreement shall also be deemed valid. Here, when a trade union abuse the right to personnel management, it is recognized that there was a serious act of distribution on the part of the trade union, which caused the defect in the employer’s procedure, or that the necessity and rationality of the personnel disposition is objectively obvious, and the employer has made a sincere and sincere effort to make a prior agreement with the trade union, but the trade union did not reach a prior agreement by opposing the random personnel disposition without reasonable grounds or reasons.

[2] The case holding that, in a case where an employer issued a personnel order to an executive officer of a trade union without prior agreement with the trade union in a collective agreement, even though the employer had decided to obtain prior agreement with the trade union on the personnel management of the executive officer of the trade union, the employer should be deemed to be exempted from the application of the prior agreement provisions under the collective agreement, and thus the employer did not go through the prior agreement procedure itself, and therefore, the trade union refused the prior agreement provisions under the collective agreement, and therefore, the employer cannot be deemed to have renounced or abused the right to pre-agreement immediately

[1] Article 30 (1) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) (see current Article 23 (1)) / [2] Article 30 (1) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007) (see current Article 23 (1))

[1] Supreme Court Decision 2001Du3136 Decided June 10, 2003 (Gong2003Ha, 1537) Supreme Court Decision 2005Du8788 Decided September 6, 2007 (Gong2007Ha, 1560)

Plaintiff 1 and two others (Attorney Choi Sung-ho, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Hean Chuncheon Factory Co., Ltd. (Law Firm Square, Attorneys Park Jae-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Nu32100 decided July 4, 2007

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

If an employer requires the prior consent or consent of a trade union in making a personnel disposition, or if a collective agreement provides for a personnel disposition by considering the consistency of the opinion with the trade union through discussions on personnel disposition, a personnel disposition without undergoing such procedures should be deemed null and void in principle: Provided, That even if a pre-agreement clause is established, it is not possible to exercise the employer’s right to personnel management, regardless of any circumstances, and where a trade union’s abuse of the right to personnel management or waiver of the exercise of the right to advance agreement, the personnel disposition without such agreement shall also be deemed valid. Here, when a trade union abuse the right to advance agreement with the trade union, a material distribution has occurred on the part of the trade union, which led to the defect in the employer’s procedure, or the necessity and rationality of the personnel disposition is objectively apparent, and the employer has made a sincere and sincere effort to reach the prior agreement with the trade union, it shall be recognized in cases where there are circumstances such as the trade union failure to reach the prior agreement by opposing the personnel disposition without reasonable grounds or reason (see, e.g., Supreme Court Decision 785Du888, Sept.

According to the reasoning of the judgment of the court of first instance as cited by the court below, the first instance court acknowledged facts as stated in its reasoning, and determined that the Intervenor’s supplementary intervenor (the Defendant’s supplementary intervenor was changed to the Defendant’s supplementary intervenor on August 2, 2007, and the Defendant’s supplementary intervenor was merged with the Defendant’s supplementary intervenor on the same day; hereinafter, “the Intervenor’s general title”) and the Heando District Trade Union (hereinafter “Trade”) decided that the Intervenor would obtain prior agreement on the personnel affairs of the union officers in the collective agreement of this case without prior agreement with the trade union, but the Intervenor refused to give prior consent on the personnel affairs of the union officers in the collective agreement of this case. However, although the Intervenor refused to give prior consent on the personnel affairs of the trade union, the court below refused to give prior consent on the personnel affairs of the trade union on or after February 28, 2005, which was prior to the personnel management order of this case, it constitutes a valid personnel affairs union’s refusal to give prior consent on or after the personnel affairs order.

However, the court below's determination that a trade union renounced or abused the right to make a prior agreement, despite the fact that the prior agreement clause applied to the personnel order of this case and the prior agreement with the trade union was necessary, is not acceptable for the following reasons.

According to the facts duly admitted by the court below after accepting the judgment of the court of first instance and the evidence rejected by the court below, the intervenors and trade unions concluded the other agreement of this case separately from the collective agreement of this case and set the matters concerning the full-time reorganization of human resources between the intervenors and the intervenors after the termination of the strike. According to the other agreement of this case, the other agreement of this case, "the company shall implement the reorganization of departments and personnel between factories for the efficient management activities and performance of duties after the completion of the strike: Provided, That the company shall respect its opinion to the maximum extent possible, and consult with the union in advance," the intervenors shall be deemed to be exempted from the "pre-consultation" only through the conclusion of the other agreement of this case. The intervenors shall be notified of the contents of the agreement of this case to the trade union on February 28, 2005, which was before the issuance of the personnel order of this case and present their opinion. But the intervenors pointed out the procedural problems by the prior agreement clause of this case under the collective agreement of this case, the intervenors requested the labor union to cooperate on several occasions, and agreed with the plaintiff 30.

If the facts are identical, the intervenors are deemed excluded from the application of the provisions of the instant collective agreement to the personnel order, and they did not go through the prior agreement procedure itself. Thus, the main reason why the prior agreement with the trade union was not reached is for the intervenors, and the trade union refused the personnel order under the instant collective agreement provision, and the trade union’s refusal of the personnel order under the instant collective agreement cannot be said to have renounced or abused the right of prior agreement.

The judgment of the court below which judged otherwise is erroneous in the misunderstanding of legal principles as to waiver or abuse of the right of prior agreement, which affected the remaining judgment.

The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)