(영문) 서울행정법원 2012.2.9. 선고 2011구합20932 판결

1. The Defendant’s disposition to return to the Plaintiff on April 19, 2011 as to the Plaintiff’s union establishment report is revoked. 2. The litigation cost is borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On April 19, 201, the Plaintiff Union has its principal office in the third floor of Jongno-gu Seoul Metropolitan Government, and is an organization established to maintain and improve the working conditions of young workers (as prescribed by Article 3 of the Regulations (Evidence A). (b) On April 14, 201, the Plaintiff Union is an organization established to promote the maintenance and improvement of the working conditions of workers. The name of the Defendant as “A organization”, “regional unit labor union”, “two members”, and “C”, and “the report of establishment of a trade union” (hereinafter referred to as “the report of establishment of this case”). On April 19, 2011, the Defendant did not have actual employment for job seekers and job seekers, and thus, it cannot be viewed as an employee, not an employee under Article 2(c) of the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as “Trade Union and Labor Relations Adjustment Act”) but it did not return the person to the Plaintiff union.

[Ground for Recognition: Facts without dispute, entries in Gap-1 through 7, purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff union's assertion

(1) Non-existence of return authority

In light of the principle of free establishment of a trade union under the Constitution and the Trade Union Act, insofar as the Plaintiff union reported the establishment of a trade union by meeting the requirements under Article 10 of the Trade Union Act, the Defendant has no authority to examine and return the report of establishment of the Plaintiff

(2) Non-existence of grounds for disposition

The plaintiff union is a primary business trade union based on age and type of employment. Unlike a company-level trade union, in the case of a primary business trade union (industrial and regional trade union), the original employer's subordinate relationship does not meet the qualifications of union members, and it is necessary to guarantee the three labor rights under the Constitution. Therefore, even if the plaintiff union includes a worker who is temporarily unemployed or is seeking to find a job, it cannot be said that it falls under subparagraph 4 (d) of Article 2 of the Trade Union Act. Thus, the defendant's disposition of this case against which one of union members of the plaintiff union rejected the report on establishment of the plaintiff union on the ground that he is a job seeker is illegal.

(b) Relevant statutes;

Union and Labor Relations Adjustment Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "worker" means a person who lives on wages, wages, or any other income equivalent thereto, regardless of type of occupation;

4. The term "trade union" means an organization or an associated organization thereof which is organized, as its principal agent, for the purpose of maintaining and improving working conditions and promoting the improvement of workers' economic and social status by means of voluntary and collective association: Provided, That an organization shall not be deemed a trade union in any of the following cases:

(d) Where joining a person other than a worker is permitted: Provided, That in case where the dismissed person has requested the Labor Relations Commission to remedy unfair labor practices, it shall not be interpreted as a person other than the shower for labor until the Central Labor Relations Commission makes a decision on review;

Article 5 (Organization and Admission of Trade Union) Workers may freely establish a trade union or join it: Provided, That matters concerning public officials and school teachers shall be prescribed by a separate Act.

Article 10 (Report on Establishment of Trade Union)

(1) A person who intends to establish a trade union shall submit to the Minister of Employment and Labor a report stating the following matters, accompanied by the rules under Article 11, a labor union which is an associated organization and a unit trade union extending over two or more Special Metropolitan Cities, Metropolitan Cities, Dos, and Special Self-Governing Provinces; a unit trade union extending over two or more Sis, Guns, and Gus (referring to an autonomous Gu); and to the Governor of a Special Self-Governing Province or the head of a Si, Gun, or Gu (referring to the head of an autonomous Gu; hereinafter the same shall apply in Article 12 (1)) the other trade unions shall submit a report stating the following:

1. Name;

2. Location of the principal office;

3. Number of partners.

4. Names and addresses of executive officers under Article 12 (Delivery of Certificate of Report);

(1) The Minister of Employment and Labor, the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Do Governor, a Special Self-Governing Province Governor, or the head of a Si/Gun/Gu (hereinafter referred to as "administrative agency") in receipt of a report of establishment under Article 10 (1), shall issue a certificate of report within three days except in cases falling under the former

(3) Where a trade union to be established falls under any of the following subparagraphs, an administrative agency shall return its establishment report:

1. Where he falls under any of the items of subparagraph 4 of Article 2 or subparagraph 4.

The name of the union under Article 1 (Name A) of the Rules of the Plaintiff Union (No. 3) shall be a “A organization.”

Article 2(Purpose) aims to improve the working conditions of workers and to improve their economic and social status. Members of Article 3(Composition) are non-regular workers, full-time workers, and workers seeking jobs from the age of 15 to 39,000 in Seoul Special Metropolitan City, and are operated as voluntary participants of this Agreement.

(1) According to Article 10(1) of the Trade Union Act as to the non-existence of the right to return, when a trade union is to be established, it shall submit a report of establishment to the competent administrative agency along with the union rules. Article 12(1) of the Trade Union Act adopts the so-called "the so-called "the principle of reporting" by allowing the relevant administrative agency to deliver a certificate of reporting within three days upon receipt of the report of establishment. Article 12(3) of the Trade Union Act provides that a trade union which submitted the report of establishment must return the report without issuing a certificate of reporting if it falls under any item of Article 2 subparag. 4 of the Trade Union Act. Thus, the Plaintiff union's report of establishment in this case, which was rejected by deeming that the report of establishment in this case falls under the main sentence of Article 2 subparag. 4(d) of the Trade Union Act, may not be viewed as unlawful even if the Plaintiff union

(2) As to the non-existence of the disposition grounds

(A) The Labor Standards Act was established for the purpose of regulating individual labor-management relations from the perspective of “whether it is necessary to directly protect a person who provides labor to a person who actually provides labor.” However, the Trade Union Act was established for the purpose of regulating collective labor-management relations from the perspective of “whether it is necessary to guarantee the right to organize, etc. between labor suppliers.” Unlike the case of a company-level trade union with a certain employer’s subordinate relationship as a member’s qualification, the proviso to Article 2 subparag. 4 (d) of the Trade Union Act is applied only to cases where the worker is denied by dismissal from the employer, and the proviso to Article 2 subparag. 4 (d) of the Trade Union Act is limited to cases where the worker is a member’s subordinate relationship with the employer, and it is not to apply to cases such as industrial or regional trade unions, etc. from the original point of view of which Article 2 subparag. 1 and subparag. 4 of the Trade Union Act is defined differently in accordance with the legislative purpose.

(B) In light of the above legal principles, the fact that one of the two members of the Plaintiff Union, having the nature of a regional trade union, is a person seeking a job who is not a person who is actually employed by one of the union members, can be acknowledged by either dispute between the parties or by considering the overall purport of the pleadings as a whole. In light of the above legal principles, it cannot be said that the Plaintiff Union's members seeking a job are not workers under the trade union, just like self-employed, self-employed, students, etc. who have no intent or ability to work. The Plaintiff'

(3) Judgment on the defendant's assertion

Considering the trade union rules (Evidence A) of the Plaintiff Union, the Defendant asserted to the effect that at least three members are required to form the Plaintiff Union, and therefore, the Plaintiff Union merely was an organization under the establishment of the so-called Plaintiff Union and did not have 'groupity'. Thus, the Defendant rejected the report on establishment of the Plaintiff Union to the effect that one of the members of the Plaintiff Union composed of two members cannot be viewed as a job seeker merely because it is merely a job seeker in rendering the original disposition of this case. Thus, if the Plaintiff Union was excluded, the Plaintiff union actually failed to be organized as a single trade union, the above ground newly asserted in this case is related to the “collectiveity of the Plaintiff Union.” However, although the Defendant’s new ground for rejection is different from the above ground for rejection presented by the Defendant at the time of the original disposition of this case, and it cannot be deemed justifiable to refuse the report on establishment of the Plaintiff on this ground, the Defendant’s argument is without merit (it is difficult to see that the Plaintiff Union did not have an organization nature solely on the ground that the Defendant asserted the above ground for rejection of the disposition of this case.

(4) Sub-determination

Therefore, the instant disposition based on a different premise is unlawful.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.