(영문) 서울행정법원 2010.11.5. 선고 2010구합27110 판결

1. The part regarding Article 55(4) of the Rules of the Union (Conclusion of Collective Agreement with Collective Negotiations) of the Rules of the Plaintiff regarding the corrective order against the Plaintiff on March 31, 2010 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. A half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

Of the orders of Paragraph (1) and the defendant on March 31, 2010, the part of Paragraph (1) and Paragraph (2) of Article 9 of the Rules of the plaintiff and Paragraph (1) of Article 5 of the Addenda (amended by June 27, 1999) of the Rules of the plaintiff with respect to the plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The purpose of the Plaintiff Union is to improve the working conditions of the established teachers and staff as a national unit trade union established for the organization of nationwide kindergartens and elementary, middle and high schools, and to improve the social and economic status of the teachers and staff.

B. Since the enactment of the first code on May 28, 1989, the Plaintiff Union has amended the Code in total 22 times from February 27, 2009. Among them, the provisions on the corrective order stated in the purport of the claim are as follows: Article 9, Article 5 (1) and (2) of the Addenda (amended by June 27, 199) and Article 5 (4) of the Act are as follows.

|제9조 (조합원의 신분보장)조합원이 조합 활동을 하거나, 조합의 의결기관이 결의한 사항을 준수하다 신분 또는 재산상의 피해를 입은 때에는 규정이 정하는 바에 따라 조합원 신분을 보장하고 조합원 또는 그의 가족을 구제한다.| 제55조 (단체교섭과 단체협약의 체결)① 위원장은 사용자를 상대로 교섭하고 단체협약을 체결할 권한을 갖는다.② 교섭위원은 위원장을 포함하여 중앙집행위원회에서 지명한 조합원으로 구성한다.③ 위원장은 필요한 경우 교섭권과 협약체결권을 지부장에게 위임할 수 있다.④ 위원장은 전국대의원대회의 결의를 거쳐 단체협약을 체결한다.부칙(1999. 6. 27. 제14차 개정)제5조(해고조합원의 조합원 자격)① 규약 제6조 제1항의 규정에 불구하고 부당해고된 교원은 조합원이 될 수 있다.② 종전규약에 의거 조합원 자격을 갖고 있던 해직교원 중 복직되지 않은 조합원 및 이

Notwithstanding the provisions of Article 6 (1) of the Regulations, the members who were unfairly dismissed after the enforcement date of the Regulations shall maintain the qualification for membership.

C. On February 12, 2010, the Defendant determined that some provisions, including the provisions of Articles 1 and 2, among the rules of the Plaintiff Union, were in violation of labor-related Acts and subordinate statutes, and requested Seoul Regional Labor Relations Commission to make a resolution on the corrective order of the rules at issue in order to issue a corrective order under Article 21(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Relations Adjustment Act”).

D. On March 10, 2010, the Seoul Regional Labor Relations Commission violated Article 2 of the Act on the Establishment, Operation, etc. of Teachers’ Unions (hereinafter “Labor Relations Adjustment Act”) and determined that Article 2 of the Act on the Establishment, Operation, etc. of Teachers’ Unions was in violation of Article 6(1) of the Teachers’ Labor Relations Adjustment Act and Article 29(1) of the Trade Union and Labor Relations Adjustment Act with respect to all of the regulations requested by the Defendant.

C. On March 31, 2010, according to the above resolution, the Defendant issued a corrective order regarding the provision on the purport of the claim under the rules of the Plaintiff Union (hereinafter referred to as the “Rules of this case”). Of them, the corrective order stated in the purport of the claim is as follows.

1. Article 9 (Guarantee of Status of Members), Article 5 (1) and (2) of the Addenda (amended by Presidential Decree No. 14, Jun. 27, 1999) of the Rules of the Plaintiff Union provides that not only the Labor Relations Commission fails to file an application for remedy for unfair labor practice, but also the Labor Relations Commission's act of dismissal after the reexamination decision of the Central Labor Relations Commission shall be maintained as a member. Since a member who is not qualified as a member may abuse his status, Article 2 of the Teachers' Unions Act is in violation of the first corrective order, Article 5 (4) of the Rules of the Plaintiff Union's Act (hereinafter referred to as "the first corrective order of this case").

Article 6 (1) of the Teachers' Unions Act and Article 29 (1) of the Trade Union and Labor Relations Adjustment Act are violated to make it a mere fact in the name of the representative of a trade union by comprehensively and comprehensively restricting the right to conclude a collective agreement of the representative of a trade union by prescribing that a collective agreement shall be concluded following the resolution of the National Assembly of Representatives (hereinafter referred to as "the second corrective order of this case").

[Ground of recognition] The fact that there is no dispute, Gap 1, 2, and 3, Eul 1 and 2, each of the statements, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The First and Second Rules do not violate the labor-related Acts and subordinate statutes as follows, and thus, the corrective orders issued on different premise is unlawful.

1) The legislative purpose and purpose of the Act on the Trade Union and Labor Relations Adjustment of Teachers are in guaranteeing the right to organize and the right to collective bargaining of teachers. However, Article 19(1) of the Elementary and Secondary Education Act, which is invoked by the main sentence of Article 2 of the Act on the Trade Union and Labor Relations Adjustment of Teachers, does not stipulate the status or qualification of teachers as to the classification of schools and teachers eligible to join the Plaintiff Union, and Article 2 of the Act on the Trade Union and Labor Relations Adjustment of Teachers, and Article 2 subparag. 1, 4 (d) and Article 2 of the same Act do not stipulate the status or qualification of teachers. The Plaintiff Union, as a trade union by national type of industry, does not meet the qualification of union members, does not include those who are qualified as union members and are on job-seeking or dismissed. Accordingly, the provision of Article 1 of the same Act does not violate the Acts and subordinate statutes concerning labor relations.

2) As to the instant corrective order, the rules of the Plaintiff Union expressly state that the representative of the trade union has the authority to conclude a collective agreement, and the instant provisions are lawful since they are not follow-up voting system that directly affects the validity of the collective agreement concluded by the chairman, which is the content prohibiting Article 6(1) of the Teachers’ Labor Union Act and Article 29(1) of the Trade Union Act, but are provisions for gathering opinions of the union members before entering into the collective agreement and taking internal responsibility to the representative, which are provisions for gathering internal opinions of the union members and holding them accountable for the representative. Accordingly, the instant provisions are not in violation of the labor relations laws and regulations.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the corrective order of this case was unlawful

Prior to the example, Article 6 (1) of the State Public Officials Act or Article 55 of the Private School Act prohibits group activities for labor campaign or activities other than public services, but the right to organize and collective bargaining after the enactment of the Teachers' Labor Unions Act has not been recognized, but the right to organize and collective bargaining has not been recognized. In addition, the application of various special regulations under the Teachers' Labor Unions Act to the right to organize and collective bargaining based on the nature of education is subject to the structural characteristics of the educational system, the public nature of teachers' duties, expertise, autonomy, education, our historical tradition of education in Korea, and various circumstances in the educational field. The same purport is that Article 5 of the Trade Union and Labor Relations Act provides for separate regulations on teachers' labor union activities.

Therefore, the application of the Trade Union Act to the Trade Union shall be excluded in cases where there is a special rule on the Trade Union's organization, membership, activities, etc. (see Supreme Court Decision 2001Du8568, Feb. 27, 2004). ① Whether a "worker" in the main sentence of Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act is a person employed by the relevant company in the case of a trade union by enterprise, and it is reasonable to interpret that a primary trade union such as an industrial or regional trade union which does not require a certain employer's subordinate relationship should not ask for actual employment (see Supreme Court Decision 2001Du8568, Feb. 27, 2004). ② Whether a trade union's establishment of a trade union by enterprise under the Trade Union and Labor Relations Adjustment Act is not recognized, and the defendant's request for remedy to a teacher who is an employee of the Labor Relations Commission can only be interpreted as an "labor Union and Labor Relations Commission's dismissal" under the Labor Union Act.

2) Determination on the second argument

In light of the purport of Article 29(1) and (3) of the Trade Union Act, the fact that the representative of a trade union or the delegated person of a trade union has to agree on the contents of a collective agreement with an employer based on the collective bargaining and then again requires a resolution of a general meeting of partners on whether a draft agreement should be adopted shall be deemed to be merely nominal by comprehensively restricting the authority of the representative or the delegated person to conclude a collective agreement, and thus, it violates the purport of Article 29(1) and (3) of the Trade Union Act (see, e.g., Supreme Court Decisions 91Nu1257, Apr. 27, 1993; 91Nu10787, May 11,

Article 16(1) of the Labor Union Act and Article 16(1) of the Labor Union Act provide that “The term “the term “the term “the term “the term “this case’s collective agreement” means the term “the term “the term “the term “the term “or” means “the term “the term “or” means “the term “or” under Article 16(1) of the same Act, which means “the term “the term “or” under Article 16(1) of the same Act means “the term “the term “the term “or” under Article 16(1) of the same Act means “the term “the term “or” under Article 16(1) of the same Act means “the term “the term “the term “or” under Article 16(1) of the same Act means the term “the term “the term “or” under Article 16(1) of the same Act means the term “the term “or” under Article 16(1) of the same Act means the term “the term “or” under Article 16(2 of the same Act means the term “or” under Article 16(16(2) of the same Act means the term.

Therefore, the corrective order of this case No. 2, which ordered correction of the provision of this case No. 2 on a different premise, should be revoked illegally, and this part of the plaintiff's assertion is with merit.

3. Conclusion

The plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as there is no ground.