(영문) 대구지방법원 2012.7.4. 선고 2011구합3847 판결

1. On August 23, 201, the Defendant’s disposition of denial of a new application for labor supply business that the Plaintiff rendered to the Plaintiff is revoked.

2. The supplementary part of the costs of lawsuit is assessed against the Intervenor, and the remainder is assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On July 19, 201, 201, 42 of the Intervenor’s Intervenor who was a member of the Intervenor’s Intervenor (hereinafter “ Intervenor”) was the Plaintiff, a regional trade union, was established, consisting of workers engaged in loading and unloading at ports within the port area, and was issued a trade union establishment report from the port area on July 22, 201. The Intervenor is a regional trade union consisting of workers engaged in loading and unloading at each port area within the border area, including the port area.

B. On July 22, 2011, pursuant to Article 33(4) of the Employment Security Act, the Plaintiff filed an application with the Defendant for a new permit for domestic labor supply business on the basis of 11 copies, such as a type of business labor union, month of the plan for the supply of air transport workers, 42 annually, the distribution of the business area, and the distribution of the business entity subject to the supply (hereinafter “instant application”).

C. Accordingly, on August 23, 2011, the Defendant filed the instant application with the Plaintiff on the grounds that (i) the volume of physical distribution in the port area of the port area is likely to decline compared to the preceding year, and (ii) the physical conflict between trade unions, the decrease in the working conditions, and the normal operation of the port logistics are anticipated to be difficult, etc. (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 and 2, Eul evidence No. 6, and the purport of the whole pleadings

A. The plaintiff's assertion is as follows.

① Articles 3 and 4 of a collective agreement concluded between the Korean Port Trade Union Federation and the Korean Port Cargo Association to which the Intervenor belongs are in violation of the Act on the Trade Union and Labor Relations Adjustment (hereinafter “Trade Union Act”), and the right to organize of the workers under the Constitution is infringed upon, and thus, illegal. ② The water dynamics of port distribution in port areas are increasing, ③ the total number of port workers are not increased than before the permission even if the Plaintiff grants the instant application, and the total number of port workers is not increased, and rather, the existing waste, waste, and waste of the Intervenor may be decreased, ④ the number of multiple unions bargaining windows in port areas under the Trade Union Act may resolve conflicts or physical conflicts in accordance with the procedures for simplification of multiple unions under the same Act. In light of the above, the instant disposition is unlawful by abusing and abusing discretion.

B. The defendant's assertion is as follows.

① Even if the application of this case is permitted, the Plaintiff is difficult to conclude an employee supply contract with the members belonging to the Korea Port Logistics Association, pursuant to Articles 3 and 4 of the collective agreement between the Korea Port Logistics Association and the Korea Port Logistics Association to which the Korea Port and Logistics Association belongs. The two intervenors recruited 18 new members after the Plaintiff’s members withdraw from the Intervenor. At present, the number of idle personnel is about 21; ③ if the application of this case is permitted, the physical conflict between the trade union may occur; ④ as the mechanization and modernization of loading and unloading work would result in a decrease in the demand for the future manpower. In light of the above, the instant disposition is not deemed to have been abused or abused by discretionary authority.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Facts of recognition;

A. The National Port Trade Union Federation (hereinafter referred to as the "Port Trade Union") is an associated organization of unit trade unions consisting of unit trade unions consisting of workers engaged in loading and unloading in respective fields, such as ports, railroads and land, and transportation businesses, and the Korea Harbor Transport Association (hereinafter referred to as the "harbor Transport Association") is an association of employers consisting of shippers who have registered port loading and unloading businesses under the Harbor Transport Business Act.

B. The port union has concluded a collective agreement with the harbor transport association from around 1981, and the content of the collective agreement in 2010 concluded on June 1, 2010 (hereinafter “instant collective agreement”) is as follows (No. 3).

Article 2(Scope and Scope of Application) This Convention shall apply to union members of port or other place of business to port and port and port and port union or port union.Article 3(Mediation Group) represents members of the above Association and recognizes that the port and port union represent unit union members.Article 4 (Right of Employment) and the right of employment of daily workers shall be held by the members of the Harbor Transport Association. However, this Convention shall not apply to workers supplied by the port and port union members.(2) In the case of duties belonging to the right of work of the port and port union members, it shall not be given opportunities for employment except unit trade union members of the port and port union members.The term of validity of this Convention shall be from June 1, 201 to May 31, 2012.

C. Workers belonging to each port across the country are engaged in loading and unloading work. Since a trade union that has obtained permission for a labor supply business under the Employment Security Act only one for each port, the licensed trade union is engaged in the supply business of exclusive loading and unloading workers. The trade union is engaged in the supply business of exclusive loading and unloading workers at each port within the border. The trade union is engaged in the supply business of exclusive loading and unloading workers at each port within the border.

D. From May 1, 201 to April 30, 2014, the Intervenor obtained the Defendant’s permission for the renewal of the employee supply business with the period of permission from the Defendant, the port of port in which the permission was granted, racing, field of field of field of field of field of field of field of field of area of area of area of area of area of area of area of area of area of area of area of area of area of area of operation. The total number of the Intervenor’s union members is 1,050 as of November 1, 201 and December 12, 201. Specifically, the number of union members of the Intervenor is 13 union officers, 12 union employees, 24 union employees, 100 union employees in non-harbor areas, and 90 union employees in port areas of area of area of area of area of transportation and port area of area of area of area of area of area of area of area of area of area of area of area of area of 202 to November 2011.

A person shall be appointed.

F. The monthly average number of attendance days of the Intervenor’s members from 2008 to 2011 (No. 12-4) increased from 2010 to 2011 as follows (No. 12-4).

A person shall be appointed.

G. The average monthly amount of ordinary wages of port workers from 2007 to 2011 is as follows: (a) the members of the Intervenor was within fiveth of the whole country (No. 15-1 to 4).

A person shall be appointed.

H. From November 197, 1997, Scco introduced a transportation system of the RO-Rship exclusively used for the transportation of steel scrap oil (referring to a ship transporting cargo that can be loaded and unloaded on a ship using a wheels, unlike cargo loaded and unloaded on a click, for the efficient loading and unloading of ports) for the efficient loading and unloading of ports. Notwithstanding the fact that part of the harbor operations was automated, in the case of the final liaison office of the Intervenor in charge of the harbor operations of Scco, 434.08 of the monthly average number of registered employees in 2008, 8,218.25, 18.94 of the monthly average number of enrolled employees in 201, but on 2011, the average monthly number of enrolled employees was increased by 454, 9,285.33, average monthly number of enrolled employees, 2008. [Recognition] No dispute is established, Gap's evidence Nos. 15 to 214, 217 through 7 evidence No.36 of each of the Korea Port Association.

5. Determination

A. According to Articles 2 subparag. 7, 33(1), (2), and (3)1, and 44 of the Employment Security Act and Article 37 subparag. 4 of the Enforcement Decree of the Employment Security Act, a person who intends to engage in a labor supply business refers to a labor supply business that allows another person to use a worker under a supply contract. A person who intends to engage in a labor supply business shall obtain a license. In the case of a domestic labor supply business, a person who intends to engage in a labor supply business shall obtain permission for a term of validity only three years for a labor union under the Trade Union Act. A person who intends to engage in a labor supply business after the expiry of the term of validity shall obtain such permission. According to Article 33(1) of the Employment Security Act and Article 33(1) of the Enforcement Decree of the Employment Security Act, a person who intends to engage in a labor supply business shall submit an application for permission stating the plan for workers supply, the number of supplied companies, etc. among the permitted matters. The purport of Article 33(1)19 of the Employment Security Act is that a person who actually interferes with an employee is obliged to supply.

B. Article 3 of the collective agreement of this case provides that "harbor transport association shall represent its members and recognize that it is a designated negotiation body representing unit trade union members."

According to Article 5 of the Trade Union Act (amended by Act No. 9930, Jan. 1, 2010), workers may freely organize or join multiple trade unions in one business or workplace, but Article 7 (1) of the Addenda of the Trade Union Act (amended by Act No. 9930, Jan. 1, 2010) provides that "where a trade union is organized in one business or workplace, it shall not be established until June 30, 201, a new trade union, the same as the trade union, shall not be established until June 30, 201." Thus, a new trade union, the same as the existing trade union, may not be established until June 30, 201, and a new trade union, the same as the trade union, may be established from July 1, 2011.

The purport of Article 7(1) of the Addenda is to temporarily prohibit the establishment of multiple labor unions with separate bargaining rights while carrying out the formation of bargaining windows as well as the methods and procedures for the unification of bargaining windows. Since multiple labor unions prohibited from establishment pursuant to Article 7(1) of the Addenda is already established in one business or workplace, or branches or sub-branches of unit trade unions by industry, occupation, and region that can be seen as equivalent thereto, the number of labor unions is limited to 10,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

According to Articles 29(1) and (2) and 29-2 of the Trade Union Act, a representative of a trade union shall have the authority to negotiate and conclude a collective agreement with an employer or an employers’ association for the trade union or union members, and the representative of a representative bargaining trade union determined pursuant to Article 29-2 shall have the authority to negotiate and conclude a collective agreement with an employer for all the trade unions or union members that have requested bargaining. According to Articles 81(3) and 90 of the Trade Union Act, an employer shall not “act of refusing or neglecting to conclude a collective agreement or other collective bargaining with the representative of the labor union or a person delegated by the labor union without justifiable reasons,” and a person who violates this provision shall be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won. Accordingly, a harbor transport association or a member of the association may not refuse collective bargaining with the Plaintiff. Nevertheless, Article 3 of the instant collective agreement prohibits collective bargaining between the Plaintiff and a member of the association, which shall be null and void as it violates Article 29-2 and Article 81 subparag. 3 of the Act.

C. Purport of Article 4 of the instant collective agreement

Article 4 (1) of the collective agreement of this case provides that the right to employ daily workers shall be held by the members of the Harbor Transport Association. However, this provision provides that the right to employ shall not apply to workers supplied by the port unions, and Article 4 (2) of the collective agreement of this case provides that "no person shall be given an opportunity for employment except for the unit trade union members of the port unions of the port unions of the port unions of the port unions of the port unions of the port unions of Korea."

However, the proviso of Article 4(1) of the collective agreement of this case purports that the harbor transport business association’s members cannot directly employ workers supplied by the port-based association. Thus, the harbor transport business association’s members are not prohibited from employing workers other than the unit labor union members belonging to the port-based association. (2) pursuant to Article 19(1)4 and (4) of the Monopoly Regulation and Fair Trade Act, workers’ employees are prohibited from having other business operators engage in acts restricting their trading partners by contract, agreement, resolution, or any other means; and (3) the unit labor union belonging to the port-based association is null and void. Thus, the unit labor union belonging to the port-based association cannot restrict the conclusion of the labor supply contract with other business operators belonging to the harbor transport business association; (4) the harbor transport business association’s members are not members belonging to the port-based association and its members from the port-based association to the port-based association. (3) The collective agreement of this case’s 9 and the harbor transport business association’s members are not members belonging to the association.

D. According to Article 33(4) of the Employment Security Act, when the head of an employment security office permits labor supply business, the instant disposition constitutes discretionary action, given that the scope of business of a labor union and the pertinent region, the status of supply of and demand for human resources by occupation, the maintenance of employment stability, etc. for domestic labor supply business

As seen earlier, Article 3 of the collective agreement of this case is null and void, and even according to Article 4 of the collective agreement of this case, a member of the Harbor Transport Association may enter into a worker supply contract with the plaintiff, and considering the following circumstances acknowledged by the evidence and the facts admitted, the disposition of this case is deemed unlawful since it deviates from and abused discretionary power. Thus, the plaintiff's assertion is with merit.

(1) According to Article 33(1) of the Employment Security Act and Article 33(1)2 of the Enforcement Decree of the Employment Security Act, when the instant application is filed, the Plaintiff and the Intervenor applied for the labor supply business with the number of its members equal to that of the Intervenor’s labor supply plan. The total number of employees in the port area increases by 42, compared to the number of the Plaintiff’s members before the instant application is granted; 2. The extension may be denied after the lapse of 3 years pursuant to Article 33(1) of the Employment Security Act. The Defendant, even if the instant application was filed, may not extend the term of validity, taking into account the supply and demand situation of the Intervenor and the stability of employment relations; 3.4. 5. 5. 5. 5. 5. 5. 5. 6. 6. 6. 6. 6. 20 and the average monthly number of the Intervenor’s members from 202 to 2011. 5. 7. 5. 15. 7. . . 205. . . . . 7. . 1. . . . 7. 20. . . . . . . . .

(2) According to Article 29-2 of the current Trade Union Act, if there are two or more trade unions in one business or one place of business, collective bargaining windows are unified. Thus, even if the instant application is granted, there is little concern that conflict between the Plaintiff and the Intervenor or between the Plaintiff and the port trade union during the process of collective bargaining or concluding a specific labor supply contract.

(3) If the instant application is granted, the competition system for the supply of workers by multiple port trade unions can prevent harm caused by the existing exclusive and exclusive labor supply system.

(4) Since the Special Act on Assistance to the Reorganization of Harbor Manpower Supply Systems (Act No. 7759 of Dec. 23, 2005) was enacted and promulgated on December 23, 2005, the supply system of port manpower will be reorganized by a harbor transport business entity that directly employs loading and unloading workers. However, the enactment of the Special Act is due to the fact that a single port transport business entity has a right to exclusively and exclusively supply workers, and thus, it does not necessarily conform to the legislative intent of the Special Act.

6. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.