2017Da263192. Invalidity of collective agreement and compensation for damages

National Metal Trade Union

Law Firm Woo, Attorney Park In-bok

[Defendant-Appellee] Plaintiff 1 and 3 others

Defendant 1 and five others

Attorney Yu Sung-sung et al., Counsel for the defendant-appellant

Seoul High Court Decision 2016Na2057671 Decided August 18, 2017

October 29, 2020

All appeals are dismissed.

The costs of appeal by the Plaintiff are assessed against the Defendants. The costs of appeal by the Plaintiff are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Plaintiff’s grounds of appeal

A. 1) According to the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an employee may freely organize a trade union or join it (Article 5), and the representative of a trade union may request an employer to conduct collective bargaining on behalf of the trade union or its members (Article 29(1)). However, if a trade union exists in a single business or workplace, regardless of its structural form, at least two trade unions exist concurrently, the representative of a representative bargaining trade union determined in accordance with the procedures for the simplification of bargaining windows must demand the employer to conduct collective bargaining (main sentence of Article 29-2(1)). If the Trade Union Act introduced a system for the simplification of bargaining windows for multiple trade unions, allowing the unified of collective bargaining procedures by adopting such a system, the main purpose or purpose is to establish an efficient and stable collective bargaining system (see, e.g., Supreme Court Decisions 201Du3681, Oct. 31, 2017; 2016Du36816, Aug. 26, 2017).

2) A) A) A trade union that has not become a representative bargaining trade union under the system of the simplification of bargaining windows is unable to independently exercise the right to collective bargaining. As such, the Trade Union Act imposes an obligation of fair representation on an employer and a representative bargaining trade union to prevent discrimination against either the trade union that has participated in the procedures for the simplification of bargaining windows or its members in order to protect trade unions that have not become a representative bargaining trade union without reasonable grounds (Article 29-4(1)). The duty of fair representation serves as an institutional device to ensure that the fundamental contents of the right to collective bargaining guaranteed by the Constitution are not infringed, and the validity of a collective agreement entered into between a representative bargaining trade union and an employer (hereinafter referred to as a “small-scale trade union”).

In light of the purport, function, etc. of the duty of fair representation, the duty of fair representation shall be observed not only in the contents of a collective agreement, which is the result of collective bargaining, but also in the course of collective bargaining (see, e.g., Supreme Court Decision 2017Da218642, Aug. 30, 2018). A representative bargaining trade union bears the duty of fair representation not to discriminate against the minority trade union in the course of collective bargaining until the conclusion of the collective agreement. Accordingly, in order for the representative bargaining trade union to treat the minority trade union equally and appropriately in the course of collective bargaining and implement the duty of fair representation, information on collective bargaining and conclusion of collective agreement should be provided to the minority trade union as appropriate and gathered opinions. However, given that the same nature and reality of the collective bargaining process is realized in reality, given that the representative of the representative bargaining trade union has considerable discretion in the process of collective bargaining based on the power of representation recognized under the Trade Union Act, such duty of information and opinion gathering on the representative trade union should be limited. Therefore, in order for the representative trade union to sufficiently provide or fully consider all procedural information.

B) Meanwhile, in the event that a representative bargaining trade union undergoes a pro-con voting procedure on a draft provisional collective agreement agreement prepared by the representative bargaining trade union in the course of collective bargaining with an employer (hereinafter referred to as “provisional agreement”) in lieu of its member’s general meeting or general meeting, even if the representative bargaining trade union did not give its members an opportunity to participate equally in that procedure or did not consider their pro-con intent in the process of determining whether to adopt a provisional agreement, that alone cannot be readily concluded that the representative trade union violated its procedural fairness representative duty. The reasons are

(1) Considering the purport or purpose of the system of simplification of bargaining windows and the contents and purport of Article 29(2) of the Trade Union Act, the representative of a representative bargaining trade union has an independent right to conclude a collective agreement on behalf of the trade union participating in the procedures for simplification of bargaining windows and all members of the trade union participating in the procedures for simplification of bargaining windows, in principle, cannot be deemed binding on the intent of a minority trade union

(2) Even though the rules of a representative bargaining trade union stipulate that a provisional agreement should be made by vote of union members, it is only an internal procedure prepared for decision-making by union members belonging to the representative bargaining trade union, not an internal procedure required by law.

(3) Article 29-2 of the Trade Union Act provides for the procedures for the simplification of bargaining windows, and Article 14-7 of the Enforcement Decree of the Trade Union Act provides for the detailed provisions on the standards for the calculation of the number of union members necessary for the establishment of a representative bargaining trade union pursuant to delegation. The latter part of Article 41(1) of the Trade Union Act provides that industrial action may be conducted only when the whole union members of the trade union participating in the procedures for the simplification of bargaining windows go through the pro-con voting procedures. However, in relation to pro-con voting on a provisional agreement, not only whether such pro-con voting is carried out, but also there is no provision on how to coordinate if each trade union participating in the procedures for the simplification of bargaining windows has different regulations on how to set the number of union members necessary for the establishment of a representative bargaining trade union.

B. As to the grounds of appeal Nos. 1 and 2

1) After compiling the adopted evidence, the lower court determined as follows: (a) as to whether Defendant 1, Defendant 2, Defendant 4, and Defendant 5 (hereinafter referred to as “Defendant 1, etc.”) who became a representative bargaining trade union at each workplace through the procedures for simplification of bargaining windows violated procedural representative duties in the course of collective bargaining (in the case of Defendant 5, the amendment of the collective agreement in 2013 and collective bargaining for the conclusion of the wage agreement in 2014) conducted in order to enter into a collective agreement in 2014; and (b) thereby taking tort liability by failing to comply with the procedural representative duties in the course of collective bargaining (in the case of Defendant 5, the amendment of the collective agreement in 2013 and collective bargaining for the conclusion of the wage agreement in 2014), the submission of the Plaintiff’s evidence alone is difficult to deem that there was intention or negligence to the extent that tort liability can be recognized by Defendant 1, etc.

2) Examining the following circumstances revealed by the reasoning of the judgment below in light of the aforementioned legal principles, it is difficult to evaluate that Defendant 1, etc. discriminated against the Plaintiff’s branch without reasonable grounds by abusing or abusing discretion due to Defendant 1, etc.’s omission in or without sufficiently undergoing the procedures for providing information and gathering opinions on basic and important matters against the Plaintiff’s branch, which is a minority trade union. Moreover, even if Defendant 1, etc. did not give the Plaintiff’s members the opportunity to participate equally in the relevant procedure with respect to the vote against the union members on the provisional agreement or did not decide whether to adopt a provisional agreement by taking into account the same consideration as both the opposing and opposing intent of the Plaintiff’s branch members, it cannot be deemed that Defendant 1, etc. violated the duty of fair representation. Ultimately, it cannot be deemed that Defendant 1, etc. violated the duty of fair representation. Accordingly, the lower court’s decision denying tort is justifiable. This part of the grounds of appeal pertains to the legal doctrine of intentional or negligent acts due to the violation of the duty of fair representation,

A) Defendant 1’s collective bargaining process

(1) On March 6, 2014, Defendant 1 asked the Plaintiff Branch to cooperate with the Plaintiff 115 members of the Plaintiff Branch to conduct a survey to conduct collective bargaining on the collective agreement in 2014. Defendant 1 demanded that the Plaintiff Branch explain the demand for collective agreement in 2014.

(2) On March 20, 2014, Defendant 1 prepared the draft collective agreement request on March 20, 2014, and demanded the Plaintiff Branch to explain the Plaintiff’s draft demand on April 8, 2014. (3) Plaintiff Branch and Defendant 1 opened a representative meeting in relation to the collective agreement in April 15, 2014. At the time, Plaintiff Branch explained Defendant 1’s draft demand on the Plaintiff Branch.

(4) On May 28, 2014, Defendant 1 demanded that Defendant 1 “to explain the proposal of Defendant 1 to the Plaintiff Branch,” and that Defendant 1 “to convene a meeting of representative.” At an open meeting on May 30, 2014, Defendant 1 explained the proposal of Defendant 1 to the Plaintiff Branch.

(5) On October 23, 2014, Defendant 1 prepared a provisional agreement in 2014, and notified Plaintiff 1’s branch of the same day, and the pertinent contents thereof. While collective bargaining is underway, Defendant 1 created a newsletter that explains the progress of collective bargaining from time to time, and kept it in front of each conference room and restaurant for public perusal. Defendant 1 entered in the newsletter in detail “the date and place of collective bargaining, participants, future schedule, labor and management arguments, future prospects,” etc. The provisional agreement was prepared, and Defendant 1 arranged in the newsletter in a manner easily understandable by explaining the specific contents of the provisional agreement.

B) Defendant 2’s collective bargaining process

(1) On April 15, 2014, the president of the Plaintiff Branch visited Defendant 2’s office to discuss the conclusion of the collective agreement with Defendant 2 and Defendant 2 in 2014.

(2) Upon receipt of the proposal for collective agreement of the Hanjin Heavy Industries, Defendant 2 delivered it to the Plaintiff Branch on May 22, 2014.

(3) On September 25, 2014, Defendant 2 prepared a draft interim agreement with the Hanjin Industries Co., Ltd., Ltd. and Defendant 2. The representative of Plaintiff Branch and Defendant 2 held a meeting of representatives on the same day and discussed on the draft interim agreement.

(4) Defendant 2 posted all the collective bargaining process with Hanjin Heavy Industries Co., Ltd., the preparation of a provisional agreement and the contents of a provisional agreement in the newsletter at an open place after publishing them in the newsletter. In particular, in relation to the interim agreement, Defendant 2 explained in detail the ordinary nature of the regular bonus that was controversial between multiple labor unions, wage discount portion, and the amendment of the collective agreement.

C) Defendant 4’s collective bargaining process

(1) On March 27, 2014, Plaintiff Branch delivered to Defendant 4 the proposal for collective agreement with Plaintiff Branch.

(2) Defendant 4 revealed the process of negotiations through the newsletters, etc. In the newsletters of the Plaintiff Branch, the negotiation process or contents (basic wage increase, regular bonus increase, annual bonus increase, annual improvement, scope of ordinary wage, etc.) conducted by the representative bargaining trade union was introduced.

(3) On September 25, 2014, Defendant 4 prepared a provisional agreement with the two Industrial Infrastructure Co., Ltd. and the provisional agreement. The Plaintiff Branch also introduced the contents of the provisional agreement in the newsletter.

(4) On September 29, 2014, Defendant 4 held a general meeting on a provisional agreement and explained it to its members. Defendant 4 also attended and responded to the provisional agreement.

D) Defendant 5’s collective bargaining process

(1) From the end of February 2014, Defendant 5 had been engaged in the amendment of the collective agreement in 2013 and collective bargaining to enter into the wage agreement in 2014 with Ebroto Korea Co., Ltd. andhh times.

(2) Defendant 5: (a) drafted and publicly announced the date, venue, and proposal for collective agreement after each negotiation; and (b) published the minutes and the content of the agreement. Defendant 5 sent the minutes containing the result of each negotiation to the Plaintiff Branch. On March 24, 2014, the letter of public notice sent by the Plaintiff Branch to Defendant 5 was written by the Plaintiff Branch of the Plaintiff Branch of the Plaintiff on March 24, 2014, stating that “The Plaintiff Branch of the Plaintiff was notified of the negotiation minutes, etc. from the Defendant Aka Korea Trade Union, and reviewed them.”

(3) On March 28, 2014, Defendant 5 prepared a provisional agreement with ABS Korea Co., Ltd., Ltd., and announced the interim agreement and minutes on the same day. Examining the grounds of appeal No. 3 in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the interpretation of Article 29(2) of the Trade Union Act and statutory delegation relationship, etc., contrary to what is alleged in the grounds of appeal.

2. Determination on Defendant 3’s grounds of appeal

A. The lower court, on the grounds indicated in its reasoning, determined that Defendant 3, a representative bargaining trade union, added Article 103 of the collective agreement in 2014 and Article 48 of the detailed guidelines for collective agreement to discriminate against the Plaintiff’s branch without reasonable grounds, and that it constitutes a violation of the duty of fair representation, and that it constitutes a tort in light of the relevant circumstances.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on fair representation, without exhausting all necessary deliberations, as alleged in the grounds of appeal

B. Meanwhile, the lower court denied Defendant 3’s tort liability on the grounds that it is difficult to recognize Defendant 3’s intentional or negligent act while recognizing Defendant 3’s violation of the duty of fair representation with respect to the pro-con voting on the interim agreement.

Defendant 3’s ground of appeal on the provisional agreement’s pro-con voting is the purport of disputing the judgment of the court below that rejected Defendant 3’s tort liability, and it cannot be a legitimate ground of appeal.

3. Determination on Defendant 6’s grounds of appeal

The lower court determined that Defendant 6, a representative bargaining trade union, failed to provide information or collect opinions on the collective agreement with respect to the Plaintiff Branch that participated in the procedures for the simplification of bargaining windows in the course of concluding the wage agreement in 2014, and that this constitutes tort due to the violation of the duty of fair representation.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to the non-exercise of right of explanation and the establishment of tort, or omitting judgment.

4. Conclusion

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

Justices Kim Jae-sik, Counsel for the defendant

Justices Min Min-young

The chief Justice Justice shall mobilized

Justices Noh Tae-ok