[1] The meaning of "this Act enters into force" and "representative bargaining trade union under this Act" under Article 4 of the Addenda to the Trade Union and Labor Relations Adjustment Act ( January 1, 2010)

[2] In a case where a collective agreement entered into by a specific trade union exists in a business or a place of business, and the collective agreement satisfies the requirements to recognize general binding force under Article 35 of the Trade Union and Labor Relations Adjustment Act, whether the right to collective bargaining or the right to enter into a collective agreement with the trade union to continue existing collective bargaining without undergoing procedures for simplification of bargaining windows pursuant to Article 4 of the Addenda of the same Act (negative)

[3] The meaning of the principle of good faith and the requirements for denying the exercise of rights on the ground that it violates the principle of good faith

[1] Articles 29, 29-2, 29-3, 29-4, and 29-5 of the Trade Union and Labor Relations Adjustment Act, and Articles 1 and 4 of the Addenda ( January 1, 2010) / [2] Article 33(1) of the Constitution of the Republic of Korea; Articles 29, 29-2, 29-3, 29-4, and 29-5 of the Trade Union and Labor Relations Adjustment Act; Articles 1 and 4 of the Addenda ( January 1, 2010) / [3] Article 2 of the Civil Act

[1] Supreme Court Order 2012Ma858 Decided November 12, 2012 (Gong2013Sang, 155) / [2] Supreme Court Order 2010Ma1193 dated May 6, 201 (Gong2011Sang, 1117) / [3] Supreme Court Decision 91Da3802 Decided December 10, 1991 (Gong192, 467), Supreme Court Decision 2003Da18401 Decided May 26, 2006 (Gong2006Ha, 1126), Supreme Court Decision 2016Da32193 (Gong2017, 553) Decided February 15, 2017

KAC Co., Ltd. (LLC, Attorneys Ansan-sik et al., Counsel for the defendant-appellant)

National Metal Trade Union (Law Firm Woo, Attorneys Choi Woo-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2043238 decided November 23, 2016

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 29(2) through (4), and Articles 29-2 through 29-5 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that the establishment of multiple trade unions shall be completely permitted at one business or workplace, and the simplification of bargaining windows to determine a representative bargaining trade union and conduct collective bargaining where two or more trade unions are established or joined at one business or workplace regardless of the structural form thereof. Article 1 of the Addenda of the Trade Union Act provides that, in principle, the enforcement date of the provision on the simplification of bargaining windows, such as a representative bargaining trade union, etc. shall be determined as of January 1, 2010: Provided, That Article 4 of the Addenda of the Trade Union Act provides that “after this Act enters into force, collective bargaining trade unions which are in force shall be deemed to be a single representative bargaining trade union under this Act, and it is reasonable to interpret that “after this Act enters into force,” a single collective bargaining procedure, such as the enforcement date of the provision on the simplification of bargaining windows, shall be deemed to be one of the parties to the Act.

In addition, Article 33(1) of the Constitution provides that “worker shall have the right to independent association, collective bargaining and collective action to improve working conditions,” thereby guaranteeing workers’ right to independent association, as well as workers’ right to collective bargaining and right to collective action. Therefore, even if a collective agreement entered into by a specific trade union exists in a business or workplace and the collective agreement satisfies the requirements for recognition of general binding power pursuant to Article 35 of the Trade Union Act, a trade union that is able to continue existing collective bargaining without undergoing the procedures for simplification of bargaining windows pursuant to Article 4 of the Addenda to the Trade Union Act and is not subject to restrictions on the right to collective bargaining or right to conclude collective agreements (see, e.g., Supreme Court Order 2010Ma1193, May 6, 2011).

Meanwhile, the principle of trust and good faith (hereinafter “the principle of trust and good faith”) refers to an abstract norm that a party to a legal relationship should not exercise a right or perform a duty in a manner that violates the principle of trust and good faith, taking into account the other party’s interests, and thus, in order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, it should have been given to the other party or objectively deemed that the other party has a good faith. The exercise of a right against the other party’s trust and good faith should reach an extent that is not acceptable in light of the concept of justice (see, e.g., Supreme Court Decision 91Da3802, Dec. 10, 191).

2. A. The lower court, on the grounds delineated below, determined that the Plaintiff was obligated to respond to collective bargaining for the Defendant’s 2010 and 2011 wages and collective agreements, and rejected the Plaintiff’s assertion disputing this.

1) Pursuant to Article 4 of the Addenda to the Trade Union Act, the Defendant, who was under negotiation at the time of July 1, 201, which was the enforcement date of the Trade Union Act, has the right to collective bargaining on wages and collective agreements in 2010 and 2011 without undergoing the procedures for simplification of bargaining windows, and thus, the Defendant does not necessarily have to simplify bargaining windows to conclude wages and collective agreements in 2010 and 2011. Accordingly, the Defendant may demand that the Plaintiff conduct collective bargaining for the purpose of concluding wages and collective agreements in 2010 and 2011, independent of the CF trade union.

2) Even if the Plaintiff entered into a collective agreement with the KF trade union on the terms and conditions of employment, the Defendant still may enter into a new collective agreement more favorable than the said collective agreement through collective bargaining for the purpose of concluding wages and collective agreements in 2010 and 2011. As such, the Defendant has practical benefit in requesting collective bargaining for the purpose of concluding wages and collective agreements in 2010 and 2011.

Inasmuch as a trade union whose status as a negotiating party is maintained pursuant to Article 4 of the Addenda to the Trade Union Act was unable to conclude a collective agreement for a few years, it cannot be deemed that the labor union’s collective bargaining right protected as compulsory provisions is invalidated or deprived of its status as a negotiating party. Moreover, it is difficult to readily conclude that the failure to conclude a collective agreement in 2010 and 2011 between the Plaintiff and the Defendant

Furthermore, it is difficult to see that the defendant's union members had the industrial action to avoid the application of the Trade Union Act so that the defendant, not a representative bargaining trade union, can not conduct an independent industrial action.

Therefore, the evidence submitted by the plaintiff alone cannot be allowed as the defendant's demand for collective bargaining against the good faith principle.

B. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding collective bargaining, burden of proof, and subject matter of lawsuit, or by omitting judgment, etc.

3. 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 Kim Jong-hee (Presiding Justice)