(영문) 대구지방법원 2012.7.13. 선고 2012구합470 판결

The corrective order issued by the Defendant on December 21, 201 to the collective agreement concluded between the Plaintiff and Gyeongbuk University Hospital shall be revoked.

Reasons

1. Details of the disposition;

A. On November 28, 201, the Plaintiff concluded a collective agreement (hereinafter “instant collective agreement”) with an industrial unit union consisting of workers, etc. in the workplace of the Gyeongbuk University Hospital, which included the following provisions, as a unit trade union by industry (hereinafter “instant collective agreement”).

Article 9 (Joint Work Hours of Cooperative) (1) In principle, partnership activities of union members shall be performed outside working hours: Provided, That in cases falling under any of the following subparagraphs, a hospital shall be notified at least five days before the union is held to conduct union activities during working hours, and a hospital shall be admitted to participate in the event in cooperation with the relevant department so that it does not interfere with its work. In relation to the above, a hospital shall be replaced by a public letter so that it can be handled en bloc.

B. The Defendant, among the collective agreement of this case, stated that the proviso of Article 9(1)3 (hereinafter referred to as the “instant provision”) of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the “Trade Union and Labor Relations Adjustment Act”) requested the Gyeongbuk Regional Labor Relations Commission to make a decision to correct the violation of Article 24(2) and Article 81 subparag. 4 of the said Act, and the Gyeongbuk Regional Labor Relations Commission made a decision on December 12, 201, the instant provision provides that even if a worker was not designated as a negotiating member, the payment of wages for the previous negotiation period shall be made on a fixed and daily basis regardless of the specific purpose of use of the union activity hours and actual time required, regardless of the fact that the instant provision does not coincide with the basic purport of introducing the system of exemption from working hours.

C. On December 21, 2011, the Defendant issued a corrective order to the Plaintiff by applying Article 31(3) of the Trade Union and Labor Relations Adjustment Act on the ground that the instant key provision violates Article 24(2) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1 and 2-2, the purport of the whole pleadings

2. The plaintiff's assertion

A. Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act applies only to a full-time union employee, and thus, it cannot be applied in cases of payment of wages to a full-time union employee or a negotiating member. Thus, the instant key provision does not violate Article 24 of the Trade Union and Labor Relations Adjustment Act.

B. Article 24(2) of the Trade Union and Labor Relations Adjustment Act and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, which prohibit the payment of wages to full-time union workers, violate the fundamental contents of the three labor rights guaranteed by Article 33 of the Constitution, violates the fundamental contents of the three labor rights guaranteed by Articles 33 of the Constitution, and Articles 10 and 37(1) of the Constitution, violates the fundamental contents of the labor-management autonomy principle guaranteed by Article 32 of the Constitution, violates the fundamental contents of the labor rights guaranteed by Article 32 of the Constitution, violates the over-breadth principle under Article 37(2) of the Constitution, violates the ILO Convention, Article 135 of the Constitution, and Article 143 of the Constitution, and violates the principle of respect for international legal order under Article 6 of the Constitution, and the non-payment of wages for the reason that the full-time union worker is a full-time union worker is a discrimination without reasonable grounds. Thus, it is unconstitutional because it violates the principle of equality

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

The key issue of this case is that a worker (including a pre-paid worker) is paid benefits during the pre-Negotiation period without being excluded from the limit of working hours under Article 24(4) of the Trade Union and Labor Relations Adjustment Act even if a negotiating member is not designated as a time-off worker, so the provision of Article 24(4) of the Trade Union and Labor Relations Adjustment Act applies to all workers including a full-time union worker for the following reasons. Thus, the key issue of this case is that Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act is legitimate, and the plaintiff's assertion is without merit.

(1) Article 24(4) of the Trade Union and Labor Relations Adjustment Act provides that the definition of a full-time officer of a trade union, prohibition of payment of wages to a full-time officer, and guarantee of the full-time officer's activities. Article 24(4) of the Trade Union and Labor Relations Adjustment Act provides that a worker shall be granted a paid working hours exemption system that allows a trade union to engage in activities without loss of wages within the limit of working hours if the worker determines or agrees to do so by a collective agreement. Article 24(1), (2), and (3) of the Trade Union and Labor Relations Adjustment Act provides that the subject of Article 24(4) of the Trade Union and Labor Relations Adjustment Act is a full-time officer. On the other hand, Article 24(4) of the Trade Union and Labor Relations Adjustment Act provides that the aforementioned provision is limited to a full-time officer and it is not applicable to a worker who is not a full-time officer (non-permanent union officer or negotiating commissioner, etc.) is inconsistent with the language and text of the Act.

(2) Even if Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act prohibits the full-time officer of a trade union from providing wages or assisting the operation of a trade union, "However, it is unreasonable to allow an employer to do the activities under Article 24 (4) during working hours to clearly distinguish between the full-time officer and the employee."

(3) When interpreting "worker" under Article 24 (4) of the Trade Union and Labor Act as "all workers including full-time union workers", it can explain the reasons for setting the limit of exemption from working hours for the number of union members engaged in union members due to strike in the notice of limit of exemption from working hours (public notice of exemption from working hours publicly notified by Ministry of Labor on May 14, 2010). Since Article 24 (1), (2), and (3) of the Trade Union and Labor stipulates "person engaged in union members only" as his/her full-time officer, a person engaged in union affairs cannot, in principle, be deemed as a full-time officer under the Trade Union and Labor Act, but since he/she falls under "worker" under Article 24 (4) of the Trade Union and Labor Act and thus, he/she can act without compensation for wage loss within the scope not exceeding the limit of exemption from working hours.

B. Judgment on the Plaintiff’s assertion No. 2.B.

According to the provisions of Article 24(1) and (2) and Article 81(4) of the Trade Union and Labor Relations Adjustment Act, an employee may be employed as a full-time employee if a collective agreement is prescribed or consent is obtained from the employer, and the full-time employee shall not be paid any benefits from the employer during his/her full-time period, and the employer’s payment of benefits to the full-time employee constitutes an unfair labor practice.

The provisions of Article 24 (2) of the Labor Union and Labor Relations Adjustment Act and Article 81 subparagraph 4 of the Labor Union and Labor Relations Adjustment Act, which provide the benefits to the full-time worker, shall not be deemed to be unconstitutional for the following reasons. Thus, the plaintiff's assertion is without merit.

First, it is difficult to see the issue of recognition of the union tenant or the payment of wages to the union tenant as a kind of right to organize under the Constitution or the right derived therefrom, because the union tenant is recognized as the premise of the consent of the employer.

Second, a full-time employee has no right to receive wages as remuneration for labor since he exclusively engages in the affairs of a trade union and provides labor, and the employer pays wages to a full-time employee by himself. Even if an employer pays wages to a full-time employee under a collective agreement, it is a matter of the employer’s support or provision of convenience to a trade union. Therefore, even if the payment of wages to a full-time employee is prohibited by law, there is no room for infringement of the freedom of occupation, the right to work, the principle of equality under the

Third, there is a lot of cases where a trade union actually plays a role as a representative of all employees, and it is desirable to solve the issue of support for an employer's trade union through consultation between the labor and management, and there is no need to prohibit the payment of wages to the full-time union by autonomous bargaining between the labor and management, but on the other hand, the payment of wages to the full-time union to the full-time union by the employer as a conflict of historical and structural conflict may undermine the autonomy of the trade union, may have an impact on the negotiation process between the trade union and the employer, and ultimately, there is a need to restrict the employer's payment of wages to the full-time union, and therefore, it is necessary to restrict the employer's payment of wages to the full-time union worker in terms of the possibility of affecting the bargaining process

Fourth, it is difficult to view that the wage support for a full-time worker is an unfair labor act, and even if it is decided to punish a violation, it is against the excessive prohibition principle, in that there are considerable side effects due to the provision of wages to a full-time worker, such as fear of violation of autonomy of a trade union and the formation of a disorderly labor-management relationship due to the establishment of so-called labor-management union, and there is a great need to eradicate practices among labor-management.

Fifth, Article 24 (4) of the Trade Union and Labor Relations Adjustment Act provides an alternative provision by recognizing the exemption of paid working hours within a certain scope.

Sixth, the Convention No. 135 of the International Labor Organization provides that the representative of workers shall not take any disadvantageous measure against the latter on the ground of their status and activities, and that the latter shall provide appropriate convenience to the latter so that the latter can perform his duties in a prompt and efficient manner. However, it is difficult to view the above Convention as directly regulating the issue of payment of wages to the former. The recommendation of the latter is not a treaty concluded by the Constitution or a generally accepted international law, and it is not a violation of Article 6(1) of the Constitution, even if the latter recommendation was violated.

Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.