(영문) 부산지방법원 2017.11.17. 선고 2017구합20843 판결

A. The Plaintiff is a company-level trade union established for the maintenance, improvement, etc. of the working conditions for workers belonging to the Busan Urban Transportation Corporation (hereinafter “instant construction”).

B. Article 7 of the Rules of the Plaintiff’s Trade Union refers to “Conclusion of an agreement according to the result of the representatives’ resolution.”

Article 29(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union Act") provides that "the chairperson shall act as the representative and jointly with the negotiating members." On December 21, 2016, the defendant ordered the plaintiff to correct the instant regulations by January 23, 2017 (hereinafter referred to as the "instant corrective order"). The defendant issued the instant corrective order against the plaintiff on the grounds that the instant regulations limit completely and comprehensively the authority to conclude the collective agreement by the union and union union members under Article 29(1) of the Trade Union Act (hereinafter referred to as the "Trade Union Act"). The reasons why the defendant issued the instant corrective order are as follows.

○ The instant construction works, upon the Plaintiff’s failure to comply with the request of the Plaintiff to participate in supplementary negotiations regarding the introduction of the wage peak system for local public enterprises on September 30, 2015, the instant construction works, on October 29, 2015, to the Busan Regional Labor Relations Commission for the mediation of the instant case, shall make an administrative instruction to the Plaintiff on November 13, 2015 that the Committee would faithfully negotiate with the Plaintiff on December 21, 2015 to December 24, 2015 and to December 24, 2015, to make supplementary negotiations on the introduction of the wage peak system between the Plaintiff and the instant construction works (hereinafter referred to as “instant agreement”) to the Defendant on December 24, 2015 (hereinafter referred to as “the instant agreement”), 2015, 207, 2015, 207, 316, 205, 206, 206, 206, 2016,

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 10, Eul evidence Nos. 1, 2, 5, 9, 10 through 16, 22, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The agreement of this case is merely a so-called "provisional agreement," and it cannot be deemed that the final agreement is a "provisional agreement," and it cannot be deemed impossible to go through internal review and procedures for gathering opinions at the stage of "provisional agreement," and therefore, even if the agreement of this case was held and rejected as a result, it cannot be deemed that the agreement of this case limits the right to conclude the collective agreement of the chairperson, who is the representative of the trade union.

2) It cannot be deemed that requiring the representative of a trade union to reflect the results of the resolution on the general assembly or representatives of the union members in the course of concluding a collective agreement is limited to the comprehensive and full area of the right to conclude the collective agreement by the representative of the trade union as stipulated in Article 29(1) of the Trade Union Act. Moreover, it is possible to interpret the instant agreement as “after gathering the opinions of the union members through the result of the resolution on the representatives’ meeting, reflecting the opinion and concluding the collective agreement.” Therefore

3) The request for a "joint signature of bargaining members" under the instant agreement is necessary to secure the authenticity and clarity of a collective agreement along with the provision on delegation of bargaining authority (Article 78 of the Trade Union Act). Moreover, even if the representative of a trade union concludes a collective agreement without the joint signature of the negotiating members, it does not affect its validity. Thus, the instant agreement cannot be deemed to be in violation of Article 29(1) of the Trade Union Act that provides for the right to conclude the collective agreement

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the agreement of this case constitutes "provisional agreement"

A) According to Article 29(1) of the Trade Union Act, the representative of a trade union shall have the authority to negotiate and make a collective agreement with an employer or employers’ association for the trade union or union members and to completely and comprehensively limit such representative’s authority to conclude a collective agreement violates Article 29(1) of the Trade Union Act (see, e.g., Supreme Court en banc Decision 91Nu12257, Apr. 27, 1993). However, a collective agreement is a normative effect that directly determines standards for the working conditions and other treatment of each union member. As such, the actual owner of the collective agreement is a worker. Therefore, the collective agreement is a basic request for collective bargaining. Article 16(1)3 of the Trade Union Act provides that matters relating to a collective agreement shall be determined as a resolution of a general meeting to ensure that the representative of a trade union prepares a proposal for bargaining through a general meeting before the commencement of collective bargaining or that the collective agreement can continue to gather the total number of union members in the process of collective bargaining.

B) Therefore, if the agreement of this case constitutes a "provisional agreement prepared in the course of collective bargaining", it is difficult to view it as a violation of the purport of Article 29(1) of the Trade Union Act even if the agreement of this case was resolved by the delegates in accordance with the agreement of this case. In full view of the following circumstances, it is reasonable to see that the agreement of this case constitutes a "provisional agreement prepared in the course of collective bargaining" rather than a "provisional agreement prepared in the course of collective bargaining". Accordingly, the plaintiff's assertion on the premise that the agreement of this case is inconsistent with a provisional agreement prepared in the course of collective bargaining is without merit.

① It appears that the chairperson of the Trade Union and Labor Relations Adjustment Committee, the representative of the Plaintiff, directly participated in the supplementary bargaining process (from December 21, 2015 to December 24, 2015) in order to prepare the instant agreement. In particular, it appears that he/she directly attended the supplementary bargaining held on December 24, 2015, which was conducted on the date of the formation of the instant agreement, and participated in the instant construction project.

② As seen earlier, the instant agreement was referred to as the result of the instant agreement’s voting at the second conference on February 17, 2016, and the final resolution was made at the meeting of the representatives. However, in light of the fact that the date of the preparation of the labor-management agreement (No. 10) that was made pursuant to the agreement was retroactively written on December 24, 2015, which was the date of the preparation of the instant agreement, and that both the contents of the said labor-management agreement and the contents of the instant agreement are the same, it is reasonable to deem that the instant agreement, notwithstanding its name, falls under the instant final agreement.

③ After the formation of the instant agreement, in the newsletter of the labor union issued by the Plaintiff, the Plaintiff also stated 24 days as “The Plaintiff shall be punished by the final negotiation related to the instant construction project and the wage peak system, and shall be punished by this Act.”

① On December 29, 2015, the Plaintiff confirmed only the consent or opposition to the instant agreement while conducting the instant conference, the newsletter of the labor union (Evidence 6) issued by the Plaintiff stated that if the instant agreement is “the result of the instant conference’s voting,” it would be effective, and when the instant agreement was concluded at the 2nd conference on February 17, 2016, the agreement was formulated in the same manner as the instant agreement without any additional negotiation process. In light of the fact that the instant agreement was concluded at the 2nd conference on February 17, 2016, it is reasonable to deem that the said agreement was concluded on the premise that the Plaintiff’s representative and the Plaintiff’s final agreement, which was derived from the process of the instant negotiation, was written in the form of the agreement.

2) Whether the instant bylaws restrict the right to conclude a collective agreement by the representative of a trade union under Article 29(1) of the Trade Union Act

A) Article 29(1) of the Trade Union Act provides that “the representative of a trade union shall have the authority to negotiate and make a collective agreement with an employer or employers’ association for the trade union or union members.” As such, the representative of a trade union shall have the authority to conclude a collective agreement in addition to the right to collective bargaining and to negotiate with an employer or employers’ association for the trade union or union members. Therefore, if the rules stipulate that the representative of a trade union shall adopt a resolution of the general meeting of union members regarding whether the agreement draft is a separate agreement after having agreed on the contents of collective bargaining with an employer according to the result of collective bargaining, the rules of the trade union shall be deemed to be merely nominal by comprehensively limiting the power to conclude the collective agreement and comprehensively, and thus contravenes the purport of Article 29(1) of the Trade Union Act that provides for the power to conclude the collective agreement (see, e.g., Supreme Court en banc Decision 91Nu1257, Apr. 27, 1993).

B) In light of the relevant legal principles, the following circumstances acknowledged based on the overall purport of the arguments and arguments admitted as a whole regarding the instant case, i.e., the instant rules should be subject to a resolution of the representatives conference on the negotiation proposal before the commencement of collective bargaining or prepared in the course of collective bargaining; further, it is interpreted that the instant agreements can be concluded after the resolution of the representatives conference as to the final agreement, such as the instant agreement.

There is room (as seen earlier, the newsletter of the labor union issued by the Plaintiff also takes effect when approval is obtained at the regular representative meeting on the premise that the agreement is a final agreement). ② Under the regulations of this case, unless there is a joint signature of negotiating members, it is reasonable to view that the representative of the labor union is practically impossible to conclude the collective agreement with the employer as its authority, and ③ Notwithstanding its title, the agreement constitutes the labor-management agreement which is entered into in the final agreement. As seen earlier, the chairperson, the representative of the plaintiff, actually agreed on the contents of the agreement of this case through negotiations with the construction project of this case, thereby gathering the opinions of the union members before concluding the collective agreement. In full view of the above, it is reasonable to deem that the agreement of this case violates Article 29 (1) of the Trade Union Act that grants the authority to conclude the collective agreement to the representative of the labor union. Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.