Where multiple trade unions are permitted, whether an employer may dismiss a worker who has joined a Class 2 trade union after withdrawing from the first trade union after concluding a union shop agreement with the first trade union (negative)

Although the union shop agreement may be deemed to infringe on or violate the freedom of passive right to organize and vocational selection, it is valid because it also conforms to the purport of the Constitution or labor-related legislation in comparison with the interests of passive right to organize and to strengthen the workers' right to organize, and the interests of maintaining and strengthening the union union's organization. However, in light of the strong effect of union shop agreement on the workers concerned, if the union shop agreement is concluded on the condition that the workers are employed even though the union does not represent two-thirds or more of the workers working in the workplace concerned, if the union shop agreement is concluded on the condition that the workers become a union member of another trade union at the time of concluding the union shop agreement, it shall not apply to cases where the workers already join another trade union or newly become a union member of another trade union at the time of signing the union shop agreement, and if the workers who have withdrawn from the union after concluding the union shop agreement at the time of demanding the workers who withdraw from the union, the employer shall not be deemed to have established any other trade union or to be discharged from the union.

Article 3 of the former Trade Union Act (Amended by Act No. 5244, Dec. 31, 1996); Article 5, Article 81 subparag. 1, and Article 81 subparag. 2 of the Trade Union and Labor Relations Adjustment Act; Article 5(1) of the Addenda to the Trade Union and Labor Relations Adjustment Act

Supreme Court Decision 96Da28899 delivered on October 29, 1996 (Gong1996Ha, 3535) Supreme Court Decision 96Nu16070 delivered on March 24, 1998 (Gong1998Sang, 1206)

Applicant 1 and six others (Law Firm Busan, Law Office, Attorney Seo Jae-in et al., Counsel for the plaintiff-appellant)

Busan Traffic Co., Ltd. (Law Firm Dongi General Law Office, Attorneys Now Don-soo et al., Counsel for the plaintiff-appellant)

1. Each disposition taken on July 11, 1998 against the petitioner 2, 3, and 4 on July 5, 1998 and against the petitioner 5 on July 8, 1998 against the petitioner 5, each disposition taken on July 11, 1998 against the petitioner 1, 1, 6, and 7 shall be determined provisionally by the Busan District Court 98Gahap15852 until the judgment of the court of first instance is rendered.

2. The above Busan District Court 98Gahap15852 decided temporarily that the applicants are in the position of workers of the respondent until the judgment of nullification of dismissal becomes final and conclusive.

3. Costs of application shall be borne by the respondent.

1. Fact-related relationship;

The following facts may be acknowledged by each entry in the evidence of paragraphs 1 through 6 of this title, unless there is no dispute between the parties or by the parties:

A. Status of the parties

The respondent is a corporation operating passenger transport business, etc., the applicant 1 is the applicant 2,3 and 4 who is the applicant 2, the applicant 2 on November 21, 1994; the applicant 3 on December 1, 1995; the applicant 5 on December 4, 1996; the applicant 6 on June 22, 1989; the applicant 4 on May 9, 1995; the applicant 7 on January 8, 1991; the applicant 2, 3, and 4 who are employed by the respondent as a taxi driver and worked as a taxi driver for each company on July 5, 1998; the applicant 5 on June 8, 1995; and the applicant 1,6, and 7 on January 1, 198, respectively.

(b) Collective agreement and union regulations of the respondent company and the Busan Regional Taxi Trade Union;

(1) On December 1997, the respondent company entered into a collective agreement with the National taxi trade union of the Republic of Korea, the Busan City/Si/Gun trade union (hereinafter referred to as the "Si/Gun trade union of the Republic of Korea"). Article 2 (2) of the said collective agreement provides that "if two-thirds of the employees have joined the trade union, all union members shall automatically become union members", and Article 2 (3) of the said collective agreement provides that "when an employee refuses to join or withdraws from the trade union, the company shall immediately dismiss the employee, and in cases of a person expelled from the trade union, the company shall take appropriate measures to the extent that there is no particular hindrance to business affairs." The above collective agreement takes effect from January 1, 1998, and at least two-thirds of the employees of the respondent company entered into the Busan City/Si/Gun trade union of the Republic of Korea, other than the applicant company."

(2) Article 6 (Purpose) of the Regulations of the Association provides that "the purpose of this association is to contribute to the realization of welfare of its members by making a declaration of labor, maintaining and improving the working conditions of taxi workers in the Busan City area, improving their economic, social and political status, and protecting their rights and interests in labor," and Article 8 (Composition) provides that "this association shall be comprised of members of the labor union from among the workers engaged in the Busan City taxi transportation business that is supported by the declaration, lectures, regulations, and this union regulations."

(c) Permission for multiple trade unions and the organization of the Busan Metropolitan City Democratic Taxi Trade Union other than applications;

(1) Article 3 subparag. 5 of the former Trade Union Act (repealed by Article 3 of the Addenda of Act No. 524 of Dec. 31, 1996) prohibits the establishment of a new trade union that is to be organized with the existing trade union. However, Article 5 of the Trade Union and Labor Relations Adjustment Act, which was enacted and implemented on March 13, 1997 by Act No. 5310 of Mar. 13, 1997, prohibits "worker may freely organize or join a trade union." Article 5(1) of the Addenda of the Trade Union and Labor Relations Adjustment Act provides that "where a trade union is organized in a single business or workplace, a new trade union that is to be organized with the said trade union shall not be established until December 31, 201," and each provision prohibits the establishment of multiple trade unions in the case of a company-level by December 31, 201, but permits the establishment of multiple trade unions in the case of a regional trade union by type of business, etc.

(2) On May 13, 1997, the Busan Metropolitan City Democratic Taxi trade union is a trade union that reported the establishment to the head of the Busan Metropolitan City Regional Labor Office on May 13, 1997. The purpose of this union is to maintain and improve the working conditions of taxi workers in Busan Metropolitan City, to promote the economic, social, and political status of its members, and to contribute to the construction of mountain-level and welfare state by realizing the democratic labor movement." Article 7 (Composition and Scope) of the Regulations of the Union.

(d) Secession from the Busan Metropolitan City Democratic Taxi Trade Union and joining the Busan Metropolitan City Democratic Taxi Trade Union other than the applicant's application;

The applicants joined the Busan Urban Railroad Workers' Union on June 25, 1998, and the applicants 2, 3, 5, 6, and 7, respectively, withdrawn from each of the above trade unions on June 26, 1998, and the applicants 4 joined each of the above trade unions on June 25, 1998, and the applicants 1, 2, 3, 5, 6, and 7, respectively, to the Busan Metropolitan City Democratic Taxi Trade Union on June 26, 1998.

(e) Circumstances of dismissal;

On July 3, 1998, the Busan City/Si/Gun trade union notified the respondent company of the dismissal of the applicant 2, 3, and 4 on July 3, 1998, the applicant 5 on April, and the applicant 1, 6, and 7 on July of the same month, and the respondent company dismissed the applicants as seen earlier on the ground that the applicants withdrawn from the Busan City/Si/Gun trade union.

2. Determination:

A. The parties' assertion

(1) The applicants asserted that the respondent's dismissal of the respondent company for reasons that the applicants withdraw from the Busan City/Si/Gun labor union pursuant to the so-called U.S. union shop agreement concluded with the Busan City/Si/Gun labor union, but the applicants immediately join the Busan City Democratic Gun labor union after withdrawal from the application. In such cases, since the validity of the union shop agreement does not extend to the applicants (if such interpretation is not made only, the worker is unable to join a new labor union or form a new labor union, thereby infringing on the freedom of collective decision) shall be null and void as there is no justifiable reason.

(2) For this, the respondent company will dismiss the respondent company's applicants in accordance with the so-called union shop agreement among the collective agreements of the respondent company.

(b) Markets:

(1) As to the permissible scope of multiple trade unions and the legality of the Busan Metropolitan City Democratic Taxi Trade Union outside the application

(A) Allowable scope of multiple trade unions

As seen above, the Trade Union and Labor Relations Adjustment Act permits multiple trade unions, and it is reasonable to view the scope of trade unions permitted as follows in the interpretation of the above Act:

In other words, a trade union prohibited under the above law is an existing trade union for a company-level trade union, and the second trade union to be newly organized should also be a unit trade union organized in a company or a place of business.

Therefore, even if a supra-company unit trade union, such as a region, industry, type of business, and company group, forms workers of a certain company, it is not an existing trade union subject to the prohibition of multiple trade unions, and therefore the establishment of a company-level trade union for the same company is not prohibited and its opposition is also the same. In other words, even if a company-level trade union exists as an existing trade union, a regional and a trade union for each business type, which are the primary business unit trade union including the employees of the company, can be established

(B) As to the legality of the Busan Metropolitan City Democratic Taxi Trade Union outside the application

In light of the purpose "purpose" and "organization" in the union regulations of the Busan Urban Railroad Workers' Union, other than the applicant, the Busan Urban Railroad Workers' Union shall be deemed the unit trade union by region and by business type. In light of the "purpose" and "organization" in the above union regulations, other than the applicant Busan Urban City Democratic Taxi Trade Union shall be deemed the unit trade union by region and by business type.

If so, the Busan metropolitan taxi trade union is not a company-level trade union, and the Busan metropolitan city Democratic taxi trade union is not a unit trade union organized by the company or workplace. Therefore, the Busan metropolitan city Democratic taxi trade union outside the application is a legitimate trade union under the Labor Union and Labor Relations Adjustment Act.

(2) As to the so-called union shop agreement

(A) Article 81 subparag. 2 of the Trade Union and Labor Relations Adjustment Act prohibits an employee from becoming a member of a trade union on the condition that the employee should not join or should withdraw from the trade union, or on the condition that the employee should become a member of a specific trade union. As such, the latter part of the same Article provides that "where the trade union represents not less than 2/3 of the employees in the workplace concerned, the conclusion of a collective agreement under which the employee should become a member of the trade union is an exception

(B) Although the union shop agreement may be deemed as infringing or violating the passive right to organize and freedom to choose occupation, it is valid because it is also consistent with the purport of the Constitution or labor-related legislation in comparison with the interests of the passive right to organize and the freedom to choose occupation, strengthening the workers’ right to organize, and maintaining and strengthening the organization of the trade union.

However, in light of the strong effect of the union shop agreement on the relevant workers, the union shop agreement is not effective if (i) a union does not represent more than 2/3 of the workers employed in the relevant workplace, but (ii) a union shop agreement is concluded with the employment condition that an employee is to become a member of another trade union; or (iii) a new employee is not applied to another trade union at the time of the conclusion of the union shop agreement; and (iv) a union shop agreement is concluded with respect to the freedom of union decision-making by the former part of Article 81 subparagraph 2 of the Labor Union and Labor Relations Adjustment Act and the freedom of union decision-making by the relevant trade union after withdrawal from the trade union and then the relevant trade union is required to dismiss the relevant employee as of the time of requesting the employer to dismiss the said employee, and the employer is not obligated to dismiss the relevant employee.

According to the above, the applicant was admitted to the Busan Metropolitan City Democratic Taxi Trade Union after withdrawing from the Busan Metropolitan City District Taxi Trade Union, and then the applicant became a member of the Busan Metropolitan City Democratic Taxi Trade Union prior to notifying the respondent company of dismissal.

Therefore, the so-called union shop agreement in the collective agreement concluded between the respondent company and the non-applicant company and the non-applicant company of Busan City District taxi trade union is interpreted to be not applicable to the case where the non-applicant company is a legitimate trade union under the Labor Union and Labor Relations Adjustment Act as a unit trade union for different regions and industries before the respondent notifies the respondent company of dismissal. Thus, the dismissal of the respondent company's applicants should be null and void.

3. Conclusion

Therefore, since the application of this case is well-grounded and there is a need to preserve it, it shall be decided as per the disposition without having the security furnished.

Judges Park Chang-chul (Presiding Justice)