National Metal Trade Union (Law Firm Shin, Attorneys Kim Tae-chul et al., Counsel for defendant-appellant)

Daejeon District Employment and Labor Agency Head (Attorney next-hwan et al., Counsel for the plaintiff-appellant)

September 20, 2012

Daejeon District Court Decision 201Guhap183 Decided January 18, 2012

1. Of the judgment of the court of first instance, the part against the Defendant regarding the “establishment of facilities and convenience” (Article 12-2 of the attached Table Nos. 12, Article 17(1) and (6) of the attached Table No. 3, Articles 12 and 82(3) of the No. 4-2, Article 17(1) and 110(2) of the No. 5, and Article 17(1) of the attached Table is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

2. The plaintiff's appeal and the defendant's remaining appeal are all dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

1. Purport of claim

The Defendant’s corrective orders against the Plaintiff on November 11, 2010 regarding each collective agreement concluded between the Plaintiff and seven employers (i.e., flexible companies, Nasck Co., Ltd., Ltd., Nasck, Mekeck Co., Ltd., Ltd., Mesckyke, Masckymp Co., Ltd., v., IMPS, Kaknifa Co., Ltd., Ltd., Ltd., and NAS Co., Ltd. (hereinafter “instant users”)

2. Purport of appeal

A. The plaintiff: The part of the judgment of the court of first instance against the plaintiff shall be revoked, and the defendant's corrective order against the revoked part shall be revoked.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The key issues of this case

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Relevant statutes

The corresponding part of the judgment of the first instance is the same.

C. Determination

1) Determination on the clauses of one-day negotiating party

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the addition of the following judgments as to the plaintiff's assertion, and thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

Although the plaintiff asserts that "the right to represent the union members is only the only negotiation body that can be interpreted as the plaintiff's only negotiation body" according to the language and text itself, it is difficult to interpret this part of the provision as the same as the above argument. If the purport of this part of the provision is the same as the above argument, the plaintiff's assertion that the litigation procedure is proceeding considerably, and it is difficult to properly understand whether the provision of the collective agreement with the above argument is legitimate and valid or not, even if it is possible to clarify its meaning, the correction of this part of the provision is still inevitable, in light of the fact that the correction of this part of the provision is not acceptable."

2) Determination on the qualification clause of dismissed members

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3) Determination on the provision on the treatment of full-time officers

A) Whether it becomes effective pursuant to the supplementary provision

The date of conclusion of each collective agreement of this case is as stated in the separate sheet on the contents of the collective agreement of this case, and it is not illegal in accordance with Articles 1, 3, and 8 of the Addenda to the Trade Union and Labor Relations Adjustment Act (Law No. 9930, Jan. 1, 2010), which existed as of July 1, 2010.

Article 24(1) of the former Labor Union Act provides that “[t]he employer shall be allowed to engage in business affairs of a labor union without providing labor prescribed in Article 24(1)(2) of the former Labor Union Act; “[t]he full-time officer of a labor union shall not receive any benefits from the employer during the former period” (Article 1(2)4 of the former Labor Union Act). Article 81 subparag. 4 of the former Labor Union Act provides that “[t]he employer shall be allowed to engage in business affairs of a labor union under Article 24(2) of the former Labor Union Act and Article 81 subparag. 4 of the former Labor Union Act; “[t]he employer shall be allowed to engage in business affairs of a labor union under Article 24(2) of the former Labor Union Act and Article 81 subparag. 4 of the former Labor Union Act; “[t]he employer shall be allowed to enter into force an unfair labor practice within the scope of 10th of March 28, 2001; [t] Article 2 of the former Labor Union Act.

On the other hand, Article 3 of the Addenda provides that "a collective agreement in force as at the time this Act enters into force shall be deemed to have been concluded pursuant to this Act: Provided, That where all or part of the collective agreement violates Article 24 due to the enforcement of this Act, it shall be deemed to have been effective until the time the relevant collective agreement enters into force, notwithstanding the enforcement of this Act." This provision aims to minimize disadvantages and confusion arising from the application of Article 24 (2) by recognizing the validity of the collective agreement even if the collective agreement is completely applied under Article 24 (2) which prohibits full-time officer from paying wages under the amended Trade Union and Labor Relations Adjustment Act and its validity is in violation of Article 24 (2). In light of such legislative purport, it shall be deemed to have been effective until the expiration of the term of validity under the proviso of Article 3 of the Addenda of the amended Trade Union and Labor Relations Adjustment Act, which is the date of application of Article 24 (2).

Therefore, as seen in the separate sheet of correction order, since each collective agreement of this case existed in each of the collective agreements of this case as of July 1, 2010, since each of the collective agreements of this case does not violate Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, the part ordering correction on the ground that it violated the above provision of the collective agreement of this case is unlawful.

B) Sub-decisions

Therefore, the part that the provision on the full-time officer treatment of the instant disposition violates Article 24(2) and (4) and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act is unlawful in light of the interpretation of Articles 1, 3, and 8 of the Addenda without the need to further examine the remainder of the Plaintiff’s assertion.

4) Determination on the provision regarding treatment of non-exclusive workers

A) Whether Article 24(4) of the Trade Union and Labor Relations Adjustment Act applies to non-exclusive managers

Article 24 of the Trade Union and Labor Relations Adjustment Act, amended on January 1, 2010, retains the provision prohibiting payment of wages to full-time officers of a trade union under Article 24(2) of the Trade Union and Labor Relations Adjustment Act, but newly establishes Article 24(4) of the Trade Union and Labor Relations Adjustment Act, which provides that "any worker may consult with and negotiate with an employer, handle grievances, and maintain and manage a trade union without incurring any loss of wages, within the limit of working hours." The Plaintiff’s assertion is understood to the effect that, since the provision applies only to full-time officers under Article 24(4) of the Trade Union and Labor Relations Adjustment Act, in the case of non-permanent officers, he/she may engage in

Article 24 (2) and (4) of the Trade Union Act provides that the term "full-time officer of a trade union" is used under the title of "full-time officer of a trade union." However, Article 24 (4) of the Trade Union Act provides that ① A person subject to the limit of exemption from working hours under the language of Article 24 (4) of the Trade Union Act does not limit the full-time officer of a trade union, and is defined as "worker"; ② Article 81 (4) of the Trade Union Act provides that "the employer would allow workers to engage in activities under Article 24 (4) during working hours." Since it is unnecessary for the employer to permit the maintenance and management of his/her full-time officer's trade union, the above proviso provides that if the non-full-time officer does not engage in his/her paid labor union activity within the limits of exemption from working hours, it can be deemed that the above provision does not apply to the non-permanent officer's work hours without any limit on his/her full-time officer's working hours or non-permanent officer's's work hours.

B) Whether it is effective pursuant to the supplementary provision

However, as seen in the attached list of corrective orders, insofar as each collective agreement of this case existed in each of the collective agreements of this case as of July 1, 2010, each of the above provisions on treatment of non-exclusive workers under Articles 1 and 3 of the Addenda of the Trade Union and Labor Relations Adjustment Act should be deemed effective until the effective period of each collective agreement. As such, the part ordering correction on the ground that the provision on treatment of non-exclusive workers of each of the instant collective agreements of this case violates Article 24(2) and (4) and subparagraph 4 of Article 81 of the Trade Union and Labor Relations Adjustment Act is unlawful.

5) Determination on the provision of facilities and convenience

A) Interpretation of Article 81 Subparag. 4 of the Trade Union and Labor Relations Adjustment Act

Article 81 Subparag. 4 of the Trade Union and Labor Relations Adjustment Act provides that “the act of subsidizing the operating expenses of a trade union” as unfair labor practices. This is intended to form and maintain equal labor-management relations and maintain the independence of a trade union by preventing an employer from exercising influence over a trade union in the counter-party relationship. The purpose of the proviso is to prohibit an employer or a trade union from “an act likely to interfere with the independence and independence of a trade union as a negotiating party,” regardless of what the employer or a worker’s intent is, except for “the act of contributing funds to the welfare fund of workers or to prevent, remedy, etc. economic inequality or any other re-performance, and the provision of a trade union office of a minimum size.”

The Plaintiff’s assertion is an act of subsidizing the operating expenses of a trade union only when there is a significant risk of infringing upon the independence of the trade union, and it should be permitted to provide assistance if not. However, it is difficult to regard the scope of prohibition of operating expenses of a trade union as an exceptional act allowing “contribution and provision of an office of a trade union” under the proviso not only where the scope of prohibition of operating expenses of a trade union is likely to infringe on the autonomy of a trade union, but also as an exceptional act allowing “the risk of infringing on the autonomy of a trade union” under the proviso, which is not the law, as it depends on an indefinite concept, and it is difficult to determine the standards for unfair labor practice. Furthermore, in a situation where multiple labor unions are allowed, it is likely that the Plaintiff would infringe on the autonomy and independence of a trade union. (3) Although the Plaintiff’s assertion is based on Supreme Court Decision 90Nu6392 Decided May 28, 191, it is difficult to interpret the above provision as an exceptional act of a trade union under the former Labor Union Act.

B) The case of each collective agreement of this case

The collective agreement between the Plaintiff and Nastec, Pacific, Korea powder, IMP, and Switzerland provides that the employer shall provide the office of a trade union with office and fixtures and bear the expenses for the management and maintenance of the office of the trade union (electric power, water supply, heating, cooling, air conditioners, and oil expenses) and the expenses for the management and maintenance of the office of the trade union, and provide vehicles to the trade union or subsidize vehicle management and oil expenses. According to the above interpretation, the part of each of the above provisions that provides office and office maintenance expenses, vehicles, maintenance expenses, and oil expenses in excess of the provision of office of the trade union and office and office fixtures and fixtures, shall be deemed to violate Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act. Therefore, the Plaintiff’

6) Judgment on the provision restricting the termination of collective agreement

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

7) Determination on the provision on maternity leave

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

8) Sub-determination

Therefore, the part concerning the provision of one-day negotiating party, provision of facilities and convenience, provision of restriction on the termination of collective agreement, provision of maternity leave, provision of childcare leave is legitimate, and the part concerning the provision on the qualification of dismissed union members, provision on full-time treatment, and provision on the treatment of non-appointed union members should be revoked illegally.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair in the part of "facility and convenience provision" with different conclusions, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The plaintiff's appeal of this case and the defendant's remaining appeal are dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Jae-sop (Presiding Judge)