[1] In a case where the labor union Gap violated Article 29(1) of the Trade Union and Labor Relations Adjustment Act, where the representative of the trade union under the trade union agreement has reached an agreement on collective bargaining with the employer, the case affirming the judgment below that the above agreement violated Article 29(1) of the Trade Union and Labor Relations Adjustment Act, which granted the representative of the trade union

[2] Whether Article 2 subparagraph 4 (d) of the Trade Union and Labor Relations Adjustment Act applies to a trade union by industry, occupation, and region (negative)

[3] Whether Article 29(1) of the Trade Union and Labor Relations Adjustment Act is against Article 29(1) of the Trade Union and Labor Relations Adjustment Act, where the representative of a trade union agreed upon the contents of the collective agreement with an employer as a result of collective bargaining and again requires a resolution of the general meeting

[1] Article 29(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act / [3] Article 29(1) of the Trade Union and Labor

[2] Supreme Court Decision 2001Du8568 decided Feb. 27, 2004 (Gong2004Sang, 557) / [3] Supreme Court en banc Decision 91Nu1257 decided Apr. 27, 1993 (Gong193Sang, 1579)

Korea Development Industry Trade Union (Law Firm Inn, Attorneys Shin Young-soo et al., Counsel for the defendant-appellant)

The Head of the Seoul Regional Labor Administration's Republic of Korea

Korea Western Development Co., Ltd. (Attorney Seo Il-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu32879 decided June 1, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Judgment on the Plaintiff’s grounds of appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to have determined that the collective agreement was violated Article 29(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Relations Adjustment Act”) which grants the representative of a trade union the authority to conclude a collective agreement, and that the latter part of Article 68(1) of the Rules of this case did not err by misapprehending the legal doctrine on the interpretation and scope of application of Article 29(1) of the Trade Union and Labor Relations Adjustment Act and the latter part of Article 68(1) of the Rules of this case, or by violating the Supreme Court precedents, even in cases where collective bargaining agreement was reached with the employer as the representative of the Plaintiff and the collective bargaining members, unless they jointly sign the agreement.

2. Determination on the grounds of appeal by the Defendant and the Intervenor joining the Defendant

A. As to subparagraph 3 of Article 7 and proviso of subparagraph 1 of Article 9 of the Rules of this case

(1) Article 2 Subparag. 4 of the Trade Union and Labor Relations Adjustment Act provides that "a trade union means an organization or associated organization organized by workers as its principal agent for the purpose of the maintenance and improvement of working conditions and the enhancement of the economic and social status of workers by voluntarily forming an employee: Provided, That it shall not be deemed a trade union in any of the following cases." However, Article 2 Subparag. 4(d) proviso of the Trade Union and Labor Relations Adjustment Act provides that "where a person who is not an employee is allowed to join the trade union" is limited to "corporate-level trade union" and Article 2 Subparag. 4(d) proviso of the Trade Union and Labor Relations Adjustment Act does not apply to cases of industrial, occupational, and regional trade unions, etc. which do not require any dependent relationship with the original employer (see Supreme Court Decision 2001Du8568, Feb. 27, 2004).

(2) The lower court determined that the proviso to Article 7 subparag. 3 and Article 9 subparag. 1 to Article 2 subparag. 4 subparag. 4(d) of the Trade Union Act, which permits the Plaintiff to join a union member, cannot be deemed as a violation of Article 7 subparag. 3 and the proviso to Article 9 subparag. 1 of the Trade Union Act, in full view of the following: (a) the instant rules stipulate that a union member, who is a constituent entity, shall be disqualified for membership; (b) the development industry and its related business sector; and (c) the place of collective bargaining lies in several business places; and (c) the subject of collective bargaining is not a single employer.

In light of the above legal principles and records, the above determination by the court below is just, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the structural structure of a trade union or the scope of application under Article 2 subparag. 4(d) of the Trade

B. As to Article 24(1)2 and the former part of Article 68(1) of the Rules of this case

(1) Article 29(1) of the Trade Union and Labor Relations Adjustment Act provides that "the representative of a trade union shall have the authority to negotiate and make a collective agreement with an employer or an employers' association for the trade union or union members, as well as the authority to conduct collective bargaining. Therefore, the representative of a trade union shall have the authority to conclude a collective agreement with an employer as a result of negotiations. Therefore, if the trade union rules stipulate that the representative of a trade union shall follow a resolution at a general meeting of union members concerning whether the draft collective agreement is a matter of the agreement after agreement with an employer as a result of collective bargaining, the trade union rules shall be deemed to be merely nominal by putting a full and comprehensive restriction on the power to conclude the collective agreement, and therefore, they are contrary to the purport of Article 29(1) of the Trade Union and Labor Relations Adjustment Act, which provides for the authority to conclude the collective agreement (see Supreme Court en banc Decision 91Nu

(2) Article 24(1)2 of the Rules of this case provides that “the matters concerning the conclusion of a separate agreement” shall be subject to the resolution of the general meeting of the Plaintiff. Article 68(1) of the Rules provides that “When a cooperative intends to enter into an agreement, the chairperson shall enter into the agreement through the general meeting.” However, Article 24(1)2 of the Rules and the former part of Article 68(1) of the Rules provide that “The chairperson, the representative of the Plaintiff, shall enter into the agreement.” However, it is unclear whether the former part of Article 24(1)2 and Article 68(1) of the Rules is limited to a cooperative agreement only after the resolution of the general meeting of the union members regarding whether the draft agreement can be entered into after the chairperson, who is the representative of the Plaintiff, agreed on the contents of the collective agreement with the employer according to the collective bargaining result, may not be deemed to violate the overall provision of Article 24(1)2 and Article 28(1)14 of the Rules.

The judgment of the court below to the same purport is just, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the interpretation and scope of application of Article 29(1) of

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)