(영문) 서울고등법원 2012.6.20. 선고 2011누34162 판결

1. Of the judgment of the court of first instance, the part concerning "a provision of convenience for facilities" (attached Form 3-7, Nos. 4 and 6) shall be revoked, and the plaintiff's claim concerning this part shall be dismissed.

2. The plaintiff's appeal and the defendant's remaining appeal are dismissed.

3. All costs of the lawsuit shall be borne by each party.

Purport of claim and appeal

1. Purport of claim

With respect to collective agreements concluded on June 29, 2010 between the Plaintiff and the Republic of Korea, the corrective order that the Defendant issued to the Plaintiff on September 30, 2010 shall be revoked.

2. Purport of appeal

[2] Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant's corrective order concerning that part shall be revoked. [Defendant] The part against the defendant among the judgment of the court of first instance against the defendant shall be revoked

Reasons

1. Details of the disposition;

The Plaintiff is an industrial trade union whose organization covers workers in metal and metal-related industries. On June 29, 2010, the Plaintiff entered into a collective agreement with the Korea Voluntaryer Co., Ltd. (hereinafter referred to as the “instant company”) with the term of validity from April 1, 2010 to March 31, 2012. However, the Defendant violated each of the provisions in the attached Table of the collective agreement, as stated in the grounds for the corrective order under the same Table, and ordered the correction thereof (hereinafter referred to as the “instant corrective order”).

[Grounds for recognition] The descriptions of Gap 1, 2, and 8 and the purport of the whole pleadings

2. Whether the corrective order of this case is lawful

(a) Article 1 (1) of the collective agreement;

1) The contents of the clause

The Company recognizes that it is the only labor organization that negotiates wages, conditions of labor, rights to union activities and other matters on behalf of all union members, and does not recognize any other two labor organizations.

2) The Defendant’s grounds for disposition violated Articles 5 and 29(1) of the Trade Union Act, which guarantee workers’ organization, freedom of joining and freedom of collective bargaining.

3) Whether Article 5 or 29(1) of the Trade Union Act is violated

According to Articles 5 and 29(1) of the Trade Union Act, workers may freely organize or join a trade union, and the representative of a trade union shall have the authority to negotiate and conclude a collective agreement with an employer or employers' association for the trade union or union members, thereby guaranteeing workers' freedom to organize and join a trade union and the right to collective bargaining.

However, the provision on the negotiating party of this case is the only labor organization that only the plaintiff is able to conduct collective bargaining with the company of this case and is not permitted by other organizations that are able to conduct collective bargaining with the company of this case, and it is evident that the above rights of workers are infringed (this provision merely refers to an organization that merely represents the union members belonging to the plaintiff).

4) Judgment on the Plaintiff’s assertion

A) The assertion that multiple labor unions are not allowed

(1) The plaintiff's assertion

Article 7 of the Addenda to the Trade Union Act provides that, where a trade union is organized in a single business or workplace, it shall not establish a new trade union that shares the objectives of organization with the trade union until June 30, 201, notwithstanding Article 5, and thus, it is prohibited from establishing multiple labor union until June 30, 201. Thus, the provisions of the single negotiating party are lawful until then. Since the defendant issued the corrective order of this case on September 30, 201, which is within that period, it was unlawful.

(2) Determination

"Where a trade union is organized in one business or workplace" in Article 7 of the Addenda to the Trade Union Act means a case where a company-level trade union is established or a branch or sub-branch of an industrial, occupational or regional trade union is an independent organization with independent rules and executive organs, and is capable of independently conducting collective bargaining and concluding collective agreements with respect to its organization or its members, which can be seen as equivalent to a company-level trade union (Supreme Court Decision 2006Du15400 Decided December 24, 2008).

However, the Plaintiff does not clearly dispute the fact that the instant company is not an organization of the same form of labor organization. Therefore, this part of the Plaintiff’s assertion on the premise that the instant company is a business or a place of business governed by Article 7 of the Addenda cannot be accepted.

B) The assertion that the union shop rules are legitimate

The plaintiff asserts that since the collective agreement of this case provides union shop regulations, the agreement of this case is legitimate. However, the collective agreement of this case does not have any provision of union shop regulations (A8). This argument is without merit without examining it.

The plaintiff asserts that the provisions of the negotiating party of this case are legitimate because they confirm that the plaintiff is in the status of representative bargaining trade union under the Trade Union Act, and they are consistent with the multiple labor union unification system under Article 29-2 of the Trade Union Act.

However, without considering all the procedures for simplification of the bargaining windows for multiple labor unions as provided in Article 29-2 of the Trade Union Act, it cannot be deemed that the Plaintiff is a trade union with only the right to collective bargaining, so it accords with Article 29-2 of the Trade Union Act. This part of the assertion is rejected.

5) Sub-decisions

The Defendant’s corrective order is lawful on the ground that the provision on the instant one-day negotiating party violates Articles 5 and 29(1) of the Trade Union Act that guarantees workers’ right to organize and join a trade union and freedom of subscription and right to collective bargaining. The Plaintiff’s assertion disputing this is without merit.

(b) Article 5 (2) 2 of the collective agreement;

1) The contents of the clause

해고의 효력을 다투고 있는 자가 노동위원회나 법원에 구제신청 및 소송을 제기한 경우 그 확정판결 떄까지 조합원이 아닌 자로 해석할 수 없으며, 회사 내 출입과 활동을 제한할 수 없다 (단, 직접생산을 방해해서는 안 된다).

2) The Defendant’s ground for disposition recognized the dismissal of a person who brought a lawsuit in a court as a partner, and thus violated the proviso of Article 2 subparag. 4 of the Trade Union Act.

3) Relevant provisions of the Trade Union Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "worker" means a person who lives on wages, wages, or any other income equivalent thereto, regardless of type of occupation;

4. The term "trade union" means an organization or associated organization of workers which is organized on their own initiative for the purpose of maintaining and improving their working conditions and promoting the improvement of workers' economic and social status by uniting independently and collectively: Provided, That an organization shall not be deemed a trade union in any of the following cases:

(d) Where joining a person other than a worker is permitted: Provided, That where the dismissed person has requested the Labor Relations Commission to remedy unfair labor practices, it shall not be interpreted as a person other than the worker until the Central Labor Relations Commission has made a decision on review;

4) Determination

According to the proviso of Article 2 subparagraph 4 (d) of the Trade Union Act, a person who is not a worker is prohibited from joining a trade union. The term "worker" in this context is, in principle, limited to a person who is actually employed and actually employed by a specific employer, barring any special circumstance (see Supreme Court Decision 2007Du4483, Mar. 24, 201).

However, the proviso of item (d) that allows a dismissed person to be an employee until the Labor Relations Commission makes a decision on review of the Central Labor Relations Commission, shall apply only to a company-level trade union and not to an industrial trade union, such as the Plaintiff (see Supreme Court Decision 2009Du8731, Feb. 11, 2010). The Plaintiff’s industrial trade union, such as the Plaintiff, is not premised on the existence of a specific employer’s subordinate relationship with the original employer due to its characteristics; a person dismissed from the employer may make a request for remedy to the Labor Relations Commission; and accordingly, a person who is dismissed from the employer may immediately bring a lawsuit for invalidation of dismissal to the Labor Relations Commission; therefore, a person who disputes the illegality of dismissal through a lawsuit for invalidation of dismissal to the Labor Relations Commission ought to be recognized as an employee, as in the case of filing a request for body with the Labor Relations Commission. In light of special circumstances, it should be deemed that a person who is dismissed from the employer and disputes the illegality

Therefore, it cannot be deemed that the Plaintiff, which is an industrial trade union, placed a "liability clause for union members" in the collective agreement concluded with the instant company and thus, did not violate the Trade Union Act. This part of the corrective order by the Defendant is unlawful. The Plaintiff’s assertion is with merit.

(c) Articles 15(1), 3 and (6), 17(2), 23(2) and (4), and 142(2) of the Collective Agreement, and Article 15(2) of the Agreement;

1) Contents of clause 3

A person shall be appointed.

2) This provision of the Defendant’s disposition violated Article 24(2) and Article 81 subparag. 4 of the Trade Union Act prohibiting the payment of wages to full-time officers (the Defendant also violated the provision prohibiting the payment of wages to full-time officers under Article 142(2) of the collective agreement).

3) Article 24 (Full-time Officer of Trade Union) (1) of the Regulations on the Trade Union Act provides that workers may engage exclusively in affairs of a trade union without providing labor as provided for in the employment contract, or with the employer’s consent.

(2) A person who is engaged exclusively in affairs of the trade union pursuant to paragraph (1) (hereinafter referred to as the "full-time officer") shall not be paid any benefits from the employer during the period of said full-time.

Any employer shall be prohibited from performing any of the following acts (hereinafter referred to as "unfair labor practice"):

4. Domination of or interference in the organization or operation of a trade union by workers, and payment of wages to the full-time officer of a trade union or assistance in operating expenses of a trade union (Detailed rules);

This Act shall enter into force on January 1, 2010: Provided, That the amended provisions of Articles 24(3), (4), and (5), 81 subparag. 4, and 92 shall enter into force on July 1, 201, Articles 29(2), (3), and (4), 29-2 through 29-5, the latter part of Article 41(1), Article 42-6, and subparagraph 2 of Article 89 shall enter into force on July 1, 201.

Article 3 (Transitional Measures concerning Collective Agreements) A collective agreement in force as at the time this Act enters into force shall be deemed concluded pursuant to this Act: Provided, That if the whole or part of such collective agreement violates Article 24 due to the enforcement of this Act, it shall be deemed effective until the time the relevant collective agreement enters into force notwithstanding this Act.

Article 8 (Special Cases concerning Application to Full-time Officer of Trade Union) Decision 24(2) and Article 81 subparag. 4 (limited to the provisions concerning the grant of wages to the full-time officer of a trade union) shall not apply until June 30, 2010.

Article 24(2) and Article 81 subparag. 4 of the Trade Union Act were first introduced into the Trade Union Act enacted on March 13, 1997, but the application of the provision was not made until December 31, 2001, and the application was made several times after the revision of the Act.

In full view of the legislative history and the text of Article 3 of the Addenda of the current Trade Union Act, along with the legislative history of the provision prohibiting the payment of full-time officers of the union, if a collective agreement is valid because it did not violate the Acts and subordinate statutes at the time of conclusion, it would be in violation of the current Trade Union Act. In full view of the fact that the legislative intent of the proviso of Article 3 of the Addenda would be to prevent disadvantages arising from the retroactive application of the Act, "where all or part of the provisions violate Article 24 due to the enforcement of the Act" shall include not only the implementation of the current Trade Union Act but also the case where Article 24 is violated due to the application of the provision prohibiting the payment of full-time officers of the union under Article 8 of the Addenda. Therefore, the provision regarding full-time officers of the case concluded on June 29, 2010, which was concluded on June 29, 2010, shall be deemed effective in accordance with Articles 3 and 8 of the Addenda, notwithstanding Articles 24 (2) and 4 of the Trade Union Act.

(d) Articles 15 (7), 16, and 19 (2) of the collective agreement;

1) Contents 7)

A person shall be appointed.

2) The Defendant violated Article 81 Subparag. 4 of the Trade Union Act, which prohibited the subsidization of operating expenses of a trade union.

3) Whether Article 81(4) of the Trade Union Act is violated

Article 81(4) of the Trade Union Act prohibits an employer from engaging in unfair labor practice. Moreover, imposing an employer’s obligation on an employer under the provision of convenience in the instant facilities belongs to the operating expenses of the trade union. Accordingly, this provision violated Article 81(4) of the Trade Union Act.

4) Judgment on the Plaintiff’s assertion

A) In relation to the risk of violation of autonomy of labor unions, the Plaintiff first asserts that the provision of convenience in the instant facilities has been made a long-term practice as the result of the Plaintiff’s independent activities, and that the provision of convenience in other workplace belonging to the Plaintiff does not pose a risk of infringing the independence of labor unions under this provision, and therefore does not violate Article 81 subparag. 4 of the Trade Union Act.

However, Article 81 subparag. 4 of the Trade Union Act does not limit the scope of prohibition of subsidization of operating expenses of a trade union to cases where it is likely to infringe on the autonomy of a trade union. In addition, in light of the fact that the proviso of Article 81 subparag. 4 of the Trade Union Act separately provides an exception to the donation of funds to promote workers’ welfare funds or to prevent and remedy for economic depression and other re-payment, and the provision of a minimum amount of office of a trade union, it shall not be deemed that the prohibition of subsidization of operating expenses of a trade union is limited to cases where it might infringe on the autonomy of a trade union (the Supreme Court decision cited by the Plaintiff is inappropriate to be invoked in this case as the case where the Trade Union Act,

B) In relation to Article 6(2) of the Addenda to the former Trade Union Act, the Plaintiff asserts that Article 6(2) of the Addenda to the former Trade Union Act is still effective, and Article 16 of the collective agreement is valid as it conforms to this.

Article 6 (2) of the Addenda to the former Trade Union Act provides that a trade union and an employer shall endeavor to gradually reduce the amount of benefits for full-time officers through labor-management consultation, but in such cases, the financial resources shall be used for the financial independence of the trade union.

However, there is no evidence to view that the amount of benefits grants to full-time officers under the instant collective agreement is reduced or reduced or that the reduced portion constitutes the Cooperative Financial Self-Support Fund under Article 16 of the collective agreement.

Therefore, even if Article 6 (2) of the Addenda to the former Trade Union Act is still effective as the plaintiff's assertion, it cannot be said that Article 16 of the collective agreement complies with it.

5) Sub-decisions

Since the provision on the provision of convenience in the instant facilities violates Article 81(4) of the Trade Union Act, the Defendant’s corrective order on this ground is legitimate. The Plaintiff’s assertion cannot be accepted.

3. Conclusion

In the instant claim, the part concerning the qualification clause for a member of the dismissal and the provision concerning the full-time officer treatment of the dismissed among the claims in this case shall be cited for the reasons, and the remaining claims shall be dismissed for the reasons that are without merit. The judgment of the court of first instance differs from the part concerning the provision of facility convenience and is thus unfair. The part concerning the provision of facility convenience in the judgment of the court of

Judges

The presiding judge, senior judge and senior judge

Judges Noh Jeong-il

Judges Jeong Jae-ok

Note tin

1) hereinafter referred to as “ordinary clause” is referred to as “ordinary party.”

2) In order to hereinafter referred to as “a member qualification clause”, the term “a member qualification clause.”

3) hereinafter referred to as "a clause for treatment of pre-employed persons".

(iv) means a non-permanent negotiating member who is temporarily recognized as a full-time employee from the time of dispatch of the proposal for collective bargaining to the final inquiry.

5) Article 15 seems to have been written in writing.

(vi) means the temporary full-time period, recognized as the chairman and the candidate for executive officers, from the date of the public announcement on the candidate for executive officers to the date of election.

7) hereinafter referred to as “facilities provision” provides convenience.

8) The articles enacted by Act No. 5310 on March 13, 1997