The case holding that although the collective agreement provides that "the personnel management and disciplinary action of the executive members of a trade union shall be conducted in consultation with the trade union in advance," a retirement disposition was taken without such prior consultation, it shall not be deemed to have an effect.

The case holding that in case where the collective agreement provides that "the personnel management and disciplinary action of the executives of a trade union shall be conducted in consultation with a trade union in advance," the above "pre-consultation" is not only to the extent that an employer gives an employer an opportunity to present an opinion necessary to ensure the fairness of personnel affairs or disciplinary action and takes into account the opinion of the trade union presented in order to prevent any harm to the normal activities of the trade union by exercising the employer's arbitrary personnel rights or disciplinary rights against the executives of the trade union, and it does not necessarily affect the validity of the above pre-consultation, on the ground that in case where a worker retires pursuant to the collective agreement that provides that the employer shall naturally retire without taking the same procedure as the case of disciplinary action if he falls under a certain reason for retirement, it is necessary that the trade union should take the above pre-consultation procedure unless the employer has already known that such ipso facto reason has already occurred or has not yet occurred.

Article 27(1) of the Labor Standards Act

Supreme Court Decision 91Da4775 delivered on April 14, 1992 (Gong1992, 1554) 91Da41484 delivered on June 9, 1992

Plaintiff 1 and four plaintiffs, et al., Counsel for the plaintiff-appellant and two others

Doyang corporation, Attorneys O Sung-sung et al.

Busan High Court Decision 91Na629 delivered on October 10, 1991

The judgment of the court below is reversed.

The case is remanded to Busan High Court.

The grounds of appeal Nos. 1 and 2 by the defendant's attorney are also examined.

1. The lower court: (a) under the collective agreement with the Korean Textiles Trade Union (hereinafter referred to as the “Trade Union”) the Defendant Company established a retirement provision that allows immediate retirement of its members without undergoing disciplinary procedures (Article 31) to constitute one of the reasons; (b) provided that if the employee is an executive of a trade union, he/she shall consult with the trade union in advance (Article 21 subparagraph 2); (c) the Plaintiffs, who are the employees of the Defendant Company, were elected as executive members of the trade union on April 12, 1989; and (d) did not interfere with the employees and employees of the Defendant Company and the registered companies stationed in the Defendant Company from June 1, 198; and (e) decided that the Plaintiffs were to deduct the number of days of imprisonment with prison labor from the Busan High Court on the ground that they would not have been convicted of the remaining members of the Defendant Company for the reason that they would not have been convicted of the remaining members of the Defendant Company for the reason that they would not have been convicted of the Defendant Company's 19.

2. However, by comparing related evidence with the records, the overall structure and contents of the collective agreement as decided by the court below and Article 21 subparagraph 2 of the same Act provide that "the personnel management and disciplinary action of the executive officers of a trade union shall be conducted in consultation with the trade union" shall be conducted in advance, and in light of the overall collective agreement with the defendant and the overall collective agreement and the practices of the labor and management, the above "prior consultation" shall not affect the retirement of the plaintiffs without necessarily considering the effect that the defendant should obtain the approval or consent of the trade union or jointly decide the personnel rights or disciplinary action by allowing the defendant to give a prior notice to the trade union of the personnel management or disciplinary action on the executive officers of the trade union in order to ensure fairness in personnel affairs or disciplinary action and to give necessary opinion to the trade union, and it shall not necessarily affect the retirement of the plaintiffs.

Furthermore, in accordance with Article 31 of the collective agreement which provides that if a worker falls under a certain reason for retirement, the defendant shall be treated as naturally retired without undergoing the same procedure as the case of disciplinary action, and in the case of this case where the defendant retires against the plaintiffs, if the trade union was aware in advance that such reason for retirement has already occurred or has not occurred due to the occurrence of such reason for retirement (According to the evidence No. 2 of the original court accepted as evidence, the labor union entered into a labor-management agreement with the chairperson acting for the representative of the trade union on September 6, 1989 after the plaintiffs were detained for the above criminal facts, and the defendant agreed not to recognize the status of the employee during the period of detention and not to suffer any disadvantage in personnel affairs until the judgment of the court of first instance is rendered. Accordingly, according to this fact, the trade union is deemed to have already known prior to the retirement disposition of this case without having the defendant undergo the above prior consultation, it is difficult to deem that the retirement disposition of this case had already been made by the defendant without undergoing the above prior consultation.

Nevertheless, the court below held that the retirement disposition against the plaintiffs was null and void solely on the ground that the defendant did not have consulted with the labor union. Thus, the court below did not err in misapprehending the interpretation of the "prior consultation" as stipulated in the above collective agreement, and it is clear that such illegality has affected the conclusion of the judgment. Thus, there is a reason to point out this error.

3. Therefore, without further proceeding to decide on the third ground of appeal by the defendant, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.