2012Nu33548 Revocation of corrective order in a collective agreement

National Metal Trade Union

The Administrator of the Central and Central Regional Employment and Labor Office;

Suwon District Court Decision 201Guhap1892 Decided August 23, 2012

April 10, 2013:

May 15, 2013

1. The judgment of the court of first instance is modified as follows.

A. The Defendant’s corrective order on July 6, 201 regarding collective agreements between the Plaintiff and two Won Labor Co., Ltd. regarding the collective agreement between the Plaintiff and two Won Labor Co., Ltd., “the treatment of those who take full-time office” in the proviso of Articles 10 and 14 of the attached Table gives rise to the treatment of those who take full-time office, and the part related to

B. The plaintiff's remaining claims are dismissed.

2. The Plaintiff shall bear 80% of the total litigation costs, and the remainder shall be borne by the Defendant.

1. Purport of claim

The Defendant’s corrective order regarding collective agreements between the Plaintiff and two Won Labor Co., Ltd. was revoked on July 6, 2011.

2. Purport of appeal

[] The part against the plaintiff among the judgment of the court of first instance is revoked, and the corrective order is revoked. [Defendant] The part against the defendant among the judgment of first instance against the defendant is revoked, and the plaintiff's claim is dismissed.

1. Details of the corrective order;

On December 10, 2010, the Plaintiff entered into a collective agreement, including the provisions in the column of the subject clause in the attached Table, with the two Won Han Jong-si Co., Ltd. (hereinafter referred to as the "Dubwon-Co.").

On July 6, 2011, the Defendant issued a corrective order to the Plaintiff on the ground that the instant provision violated the relevant provisions of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the “Trade Union Act”) as stated in the column of illegality in the attached Table (hereinafter referred to as the “instant corrective order”).

[Reasons for Recognition] No dispute, Gap evidence Nos. 1 through 3, the purport of the whole pleadings

2. Whether the corrective order of this case is lawful

(a) Article 1 of the collective agreement (hereinafter referred to as "Article 1 of the collective agreement");

1) The content company of the provision recognizes that a union is the sole labor organization that negotiates wages, working conditions, partnership activities and other matters on behalf of its members, and does not recognize any other two labor organizations, unless the right of bargaining is delegated to a superior organization.

2) The Defendant’s reason for corrective order is in violation of Articles 5 and 29(1) of the Trade Union Act that guarantees the establishment of a trade union and the freedom of workers’ membership and the right to collective bargaining.

3) Determination

A) According to Articles 5 and 29(1) of the Trade Union Act and Articles 5 and 29(1) of the Trade Union Act, an employee may freely organize or join a trade union (right to organize and join a trade union), and the representative of the trade union has the authority to negotiate with an employer or employers’ association and to conclude a collective agreement (right to collective bargaining) for a trade union or union members.

However, in light of the language and text, only the Plaintiff is the only labor organization that is able to conduct collective bargaining with two members of the labor union, and other labor organizations do not allow two members of the labor union to conduct collective bargaining. Therefore, the right to organize and join the labor union and infringe upon the freedom of collective bargaining (the Plaintiff’s assertion that this provision merely refers to an organization that merely represents the Plaintiff’s members belonging to the Plaintiff is not acceptable).

B) As to the Plaintiff’s assertion

The Plaintiff asserts that, since the collective agreement of this case provides a union shop provision, the provision of the unified negotiation body provision is legitimate. However, the collective agreement of this case does not provide a union shop provision as alleged by the Plaintiff (Evidence A 3), this part of the Plaintiff’s assertion is without merit.

4) Sub-determination

This part of the corrective order is legitimate on the ground that the article of the collective bargaining body is in violation of Articles 5 and 29(1) of the Trade Union Act. The plaintiff's assertion is without merit.

1) Contents of Article 13 (Treatment of Formerly Employed Persons)

(3) The wages of a predecessor of his/her predecessor shall be monthly, and during his/her predecessor shall be deemed ordinary service, and his/her wages shall be paid by the company.

2) The Defendant’s provision on the payment of wages to the full-time officer, regardless of the full-time officer’s duties or hours, is against Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union Act. 3)

A) According to Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union Act, the full-time officer of a trade union shall not receive any wage from an employer during the previous period (Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union Act, and the employer’s payment of wages to the full-time officer is not allowed due to unfair labor practices. However, in cases where the employer determines by a collective agreement or consents to it, the Deliberation Committee on Exemption from Work Hours upon deliberation and resolution by the Ministry of Employment and Labor in consideration of the number of union members at each business or workplace, and can conduct management of the trade union to the extent that it does not exceed the limit of exemption from work hours publicly notified by the Minister of Employment and Labor without loss of wages, such as negotiations with, grievance settlement, industrial safety activities

However, the provision on the payment of the full-time officer’s wages imposes an obligation on the two full-time officer to pay monthly wages to the full-time officer solely on the ground that he/she is the full-time officer regardless of the full-time officer’s duties or the hours of the union. Therefore, this provision violates Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union Act that allows the full-time officer to pay wages only for the affairs stipulated in the Trade Union Act or other Acts and the maintenance and management affairs of the trade union

B) As to the Plaintiff’s assertion

(1) The Plaintiff asserts that Article 24(2) and Article 81 subparag. 4 of the Trade Union Act infringe on the three basic labor rights, the principle of labor-management autonomy, and the labor rights under the Constitution, and thus null and void as they violate the basic contents of the three basic labor rights under the Constitution.

However, since a trade union receives the performance of its full-time officer's activities, the full-time officer's wages are also borne by him/her, and since these full-time officer's wages fall under the main part of the union's expenses, the employer's payment of wages to the full-time officer (hereinafter referred to as "full-time officer's wages") is likely to impair the autonomy of the trade union by providing convenience to the full-time officer. However, the employer's payment of full-time officer's wages is recognized by the agreement between the employer and the employee in order to substantially guarantee the union's activities in light of the reality of the labor union. However, the Trade Union Act prohibits the employer from paying the full-time officer's wages in consideration of the concerns that the union's autonomy might be undermined, on the other hand, on the other hand, it is recognized the employer's payment of wages in relation to the union's activities in certain cases. Accordingly, the full-time officer's payment of wages to the full-time officer does not belong to three labor rights, labor autonomy, and labor rights.

(2) The plaintiff asserts that the plaintiff is in violation of the ILO Convention and recommendations, and that Article 24(2) and Article 81 subparag. 4 of the Trade Union Act are null and void because they violate the ILO Convention No. 135 and No. 143 recommendations, which are generally accepted international laws and regulations.

However, Article 1 and Article 2 subparag. 1 of the ILO Convention provide that “the representative of an employee shall not receive unfavorable measures on the ground of his/her position or activity and may obtain appropriate conveniences from the enterprise so that he/she can perform his/her duties in a prompt and efficient manner.” However, the prohibition of the employer’s payment of full-time officer wages is merely because he/she received the benefits of his/her full-time union activity, not because he/she received the benefits of his/her full-time union activity, and does not constitute a ground for the status or activity of his/her full-time officer, and the representative of an employee may receive appropriate convenience to perform his/her duties within the limits of the exemption of working hours recognized by the Trade Union Act. Therefore, Article 24 subparag.

In addition, there is no evidence that the recommendations No. 143 of the ILO constitute a treaty concluded and promulgated in accordance with the Constitution or a generally accepted international law.

Therefore, this part of the plaintiff's assertion is without merit.

(3) The Plaintiff asserts that Article 24(2) of the Trade Union Act is a mandatory provision, and that the provision on the payment of full-time officer's salary of this case is still valid even if it is transferred in accordance with Article 24(2) of the Trade Union Act, which is a voluntary provision, as well as is stipulated as the result of the Plaintiff's active demand or

However, Article 24(2) of the Trade Union Act is not only a mandatory provision, but also an administrative agency may issue a corrective order in cases where there is an unlawful content among collective agreements, and a collective agreement is not required to be null and void to take such corrective order. Therefore, the Plaintiff’s assertion in this part is without merit.

4) Sub-determination

This part of the corrective order is legitimate on the ground that the provision on full-time officer’s payment of wages violates Article 24(2) and (4) and Article 84 subparag. 4 of the Trade Union Act. The plaintiff’s assertion is without merit. The plaintiff’s assertion is without merit.

1) The content of Article 14 (Recognition of Public Employment) recognizes that a member takes office in a public office of an association’s upper organization, metal labor union, and other organizations recognized by a labor-management agreement. However, the treatment of a former member is based on the treatment of his predecessor.

2) Since the Defendant’s provision of taking part in the position of a public official on the grounds of a corrective order requires the full-time officer to pay wages regardless of the full-time officer’s duties or hours, the decision is contrary to Articles 24(2) and (4) and 81 subparag. 4 of the Trade Union Act.

ex officio, the provision on the transfer of public service provides that if a member takes full office in the public service of an organization recognized by a labor-management agreement, etc., the two members shall not be required to pay wages to the member, but the provision on the treatment of the predecessor shall apply mutatis mutandis. In this circumstance, if a collective agreement provision on the transfer of public service violates the Trade Union Act, the provision on the transfer of public service also violates the Trade Union Act. However, the provision on the transfer of public service does not result from the violation of Article 24(2) and (4) of the Trade Union Act, and the provision on the treatment of the full-time officer does not result from the violation of the Trade Union Act. It is sufficient to correct the provision on the treatment of the full-time officer by a corrective order for the provision on the treatment of the full-time officer. Furthermore, it is not necessary to issue a corrective order to correct the provision on the transfer of public service, apart from the provision on the treatment of the full-time officer, and such corrective order is inappropriate

4) Sub-determination

This part of the corrective order is unlawful on the ground that the former Public Official is in violation of Article 24(2) and (4) and Article 84(4) of the Trade Union Act.

(d) Article 9 of the collective agreement (hereinafter referred to as "working hours exemption provision");

1) The contents of the clause

Article 9 (Activities of Associations during Work Hours) An association shall notify the company of the time of any of the following activities, and the company shall be deemed to have worked for the hours and days which it has failed to work during that period:

10. The number of full-time officers of the investigating committee in the case of an audit group shall be two persons, each of whom shall not exceed 40 days, and the period of full-time appointment of a negotiating committee members shall not exceed 40 days, and the period of full-time appointment of a negotiating committee members shall be up to the end of the union:

2) Since the Defendant’s provision on the exemption of working hours for the reasons of the corrective order is deemed to have worked as a staff member of the collective union and a negotiating member for non-working hours, it is against Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union Act. 3)

Article 24(4) and the former part of Article 81 subparag. 4 of the Trade Union Act clearly stipulate the subject of exemption from working hours as “full-time employee” rather than “full-time employee”. In addition, even if there is no full-time officer or even if there is a full-time officer, it may be necessary for a trade union to have a paid union operation with the consent of an employer from among its general members. In addition, if Article 24(4) of the Trade Union Act is interpreted that it does not apply to a non-full-time member, it would result in unreasonable results that a non-full-time employee may engage in a paid trade union operation without the limit of exemption from working hours, if there is a collective agreement or

Therefore, it is reasonable to view that the working hours exemption system under Article 24(4) of the Trade Union Act is subject to all workers including full-time officers.

In addition, the exemption of working hours under Article 24(4) of the Trade Union Act is clear that it is permissible within the scope publicly notified by the Minister of Employment and Labor by the Deliberation Committee on Exemption of Work Hours, only in cases of the maintenance and management of a trade union for the sound development of labor-management relations, such as negotiations with an employer, settlement of grievances, industrial safety activities, etc.

However, Article 24 (4) and Article 81 (4) of the Trade Union Act are violated since the time limit for a union member to engage in the paid trade union activity is not limited to the time limit for a union member, and the time limit for a union member to engage in the paid trade union activity is allowed.

4) Sub-determination

This part of the corrective order on the ground that the provision on the exemption of working hours violates Article 24(4) and Article 81 subparag. 4 of the Trade Union Act is legitimate. The Plaintiff’s assertion disputing this is without merit.

(e) Article 10 of the collective agreement (hereinafter referred to as "working hours between unions");

1) The contents of the clause

Article 10 (Work Hours between Associations) The Company shall grant the whole non-exclusive union members for hours of work after consultation at the request of the president of the branch: Provided, That consultation shall be notified to each department within eight hours, and after notification to the next superior in the event of emergency of outdoor activities, it shall be notified after the approval of the president of the branch in the event of emergency of outdoor activities, and it shall be recognized that the worker has worked for hours and days which he/she has worked (at night time, it shall be recognized that the worker has worked for two or more hours per month and the highest two hours per time per week).

2) The Defendant’s reasons for corrective order are deemed to have worked for the union activity hours between non-exclusive union members. Thus, it is in violation of Article 81 subparag. 4 of the Trade Union Act prohibiting the provision of assistance in operating expenses of a trade union.

3) Determination

Where an association activity of a non-exclusive union member constitutes the maintenance and management of a trade union for the affairs prescribed by the Trade Union Act or other Acts, such as negotiations with an employer, settlement of grievances, industrial safety activities, etc. and for the sound development of labor-management relations, it shall be allowed within the limit of time-off pursuant to Article 24(4) of the Trade Union Act. In such cases, it does not constitute unfair labor practices pursuant to the proviso to subparagraph 4

However, under the premise that the hours of the non-exclusive union employees pursuant to this Article do not constitute those subject to exemption from working hours pursuant to Article 24(4) of the Trade Union Act, the Defendant concluded that all of the above hours of working within the scope of exemption from working hours, without considering whether permission is granted, constitutes unfair labor practices prohibited by Article 81 subparag. 4 of the Trade Union Act, and thus, the part of the corrective order regarding this Article is unlawful.

4) Sub-determination

The part of the corrective order of this case, which is premised on the fact that the hours of association operation violates Article 81 subparagraph 4 of the Trade Union Act, is unlawful. The plaintiff's assertion pointing this out has merit

(f) The latter part of the proviso to Article 14 of the Collective Agreement (hereinafter referred to as "the provision concerning non-permanent employment")

1) The contents of the clause

Article 14 (Recognition of Taking Public Office) The company recognizes that members take public office of the association's upper organization, metal labor-management, and other organizations recognized by the labor-management agreement.

However, in the case of a person who takes a non-exclusive office, the hours of his/her official duties shall be given at the request and the hours that he/she has failed to work as such shall be deemed to have worked and shall not be treated disadvantageously.

2) The Defendant’s reasons for the corrective order are deemed to have worked hours for a union member to take office in a public office, and thus, it violates Article 24(4) and Article 81 subparag. 4 of the Trade Union Act.

3) Determination

Article 24(4) of the Trade Union Act, which provides for the exemption from working hours, intends to support the labor-management relations of each business or workplace by exceptionally prescribing the burden of individual employer’s benefits by reflecting the characteristics of the labor-management relations by company. Therefore, it is reasonable to view that the scope of union activities subject to exemption from working hours is limited to the labor-management activities of the business or sub-councils, such as a company unit trade union or a trade union by industry or by region, and that it does not apply to any worker who supports labor unions or

However, the non-exclusive appointment clause of public office does not limit the scope of the exemption of working hours to the Plaintiff’s labor union activities within the two members of the two members of the two members of the labor union, and is deemed to have worked for higher-level organizations, etc., so it violates Articles 24(4) and 81 subparag. 4 of the Trade Union Act.

The part of the instant corrective order is legitimate on the ground that the non-exclusive appointment clause for public office violates Article 24(4) and Article 81 subparag. 4 of the Trade Union Act. The Plaintiff’s assertion disputing this is without merit. The Plaintiff’s assertion is without merit. The content of Articles 16(1) and 81(2)(1) of the collective agreement, 16(Provision of Convenience) and 16(Provision of Conveniences).

(1) A company shall provide one motor vehicle for business purposes for smooth association activities: Provided, That the company shall bear expenses incurred in the maintenance and management of a motor vehicle.

Article 81 (Welfare)

(2) A company shall provide a consumption cooperative, credit union, user cooperative, housing association, etc. with places, facilities, and means of transport for its members.

2) Since the grounds for the Defendant’s corrective order allows an employer to assist the operating expenses of a trade union, it is in violation of Article 81 subparag. 4 of the Trade Union Act prohibiting such an act.

3) Determination

A) Article 81 subparag. 4 of the Trade Union Act prohibits an employer from engaging in unfair labor practice in violation of Article 81 subparag. 4 of the Trade Union Act. Moreover, imposing an employer’s obligation to pay on an employer under a provision of convenience falls under all the operating expenses of the trade union. Accordingly, the provision of facilities is against Article 81 subparag. 4 of the Trade Union Act.

B) As to the Plaintiff’s assertion

The plaintiff asserts that Article 81 subparagraph 4 of the Trade Union Act does not violate Article 81 of the Trade Union Act, since the provision of facilities for the long-term practice as the result of the plaintiff's independent activities and the provision of similar contents has been established in another workplace to which the plaintiff belongs.

However, Article 81 subparag. 4 of the Trade Union Act does not limit the scope of prohibition of employer’s act of subsidizing operating expenses of a trade union to cases where the autonomy of a trade union is likely to be infringed, and the same head of the same head of the same head of the same head of the Trade Union Act separately provides for exceptions to the provision that the provision of contributions to the employee’s welfare fund or for the prevention, relief, etc. of the amount of re-payment and the provision of a trade union office of a minimum size is excluded. In light of this, the prohibition of operating expenses of a trade union is limited

4) Sub-determination

This part of the corrective order is legitimate on the ground that the provision of facilities convenience violates Article 81 subparagraph 4 of the Trade Union Act. The plaintiff's assertion disputing this is without merit.

3. Conclusion

Of the instant corrective order, “the treatment of a person who takes full office” in the proviso of Article 10 and Article 14 of the Attached Table among the instant corrective order provides that “the treatment of a person who takes full office is equivalent to the treatment of his predecessor, and thus, the relevant part is unlawful, and thus, the relevant part is lawful. Therefore, the Plaintiff’s claim shall be accepted within the scope of the above recognition within the reasonable scope, and the remainder of the claim shall be dismissed as it is without merit. The judgment of the first instance is partially unfair, and thus, it is modified

The presiding judge, senior judge and senior judge

Judges Noh Jeong-il

Judges Jeong Jae-ok