In a case where the members of an industrial trade union’s subdivision voluntarily convened a general meeting without going through the general meeting convocation procedure stipulated in the operational rules, etc. of the subdivision, and then decided to change the organizational structure of the union from an industrial trade union to a company-level trade union, the case holding that such resolution is null and void on the grounds that serious defects in the convocation

Articles 11 and 18 of the Trade Union and Labor Relations Adjustment Act

Plaintiff (Attorney Kim Young-deok et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Han Han-soo et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2007Na2559 Decided December 13, 2007

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. According to the evidence adopted by the lower court, the Defendant Company: (a) was a company engaged in the manufacturing of automobile parts; (b) its employees were approximately 120 workers; (c) the Defendant Company changed its structural structure to a subdivision of the National Metal Trade Union (hereinafter “○○○○○○ Branch”) around 200; (d) since most of its members wished to withdraw from metal trade unions to change its structural form to an enterprise-level trade union; and (e) Nonparty 1 appeared to retire from the 2005 branch president on May 13, 2005; and (e) concluded that the 2nd general assembly meeting meeting was convened to be convened by 5th members of the Plaintiff’s members of the company; and (e) Nonparty 2, etc. was the representative of the 5th general assembly members of the company to be called the 5th general assembly; and (e) concluded that the 2nd general assembly meeting was convened to be convened to change its structural form to the 5th general assembly members of the company’s meeting. However, it did not require to convene a quorum to be convened to be convened to be held.

2. However, we cannot agree with the judgment of the court below for the following reasons.

According to the records, a general meeting of the ○○○○○ Branch is to be convened when the president of the branch deems it necessary or when the representative of the branch or one-third or more of the representatives of the branch submit a request stating the matters to be referred to a meeting (Article 12(2)). If the president of the branch fails to convene a general meeting despite the request of at least 1/3 of the union members, the head of the branch office may, with the approval of the chairperson, nominate the person entitled to convene the meeting (Article 12(4)). Meanwhile, Article 18(2) and (3) of the Trade Union and Labor Relations Adjustment Act provides that the representative of the trade union shall convene an extraordinary general meeting or extraordinary council without delay when the representative of the trade union intentionally evades or neglects to convene the meeting and requests the convocation of the meeting to do so by one-third or more of the union members or representatives. An administrative agency shall, upon the request of the Labor Relations Commission for a resolution, convene the general meeting or extraordinary council without delay.

According to the above facts and regulations, even though the majority of members of ○○○○ Branch wishing to make a general meeting while wishing to make a structural change into a company-level trade union, it is possible to request the president of the branch to convene a general meeting under the operational rules of the branch, and if the branch president refuses the above request, he can request the chairman of the metal labor union to approve the convocation of the branch president by designating the convocation authority, and he cannot convene a general meeting. If the chairman of the metal labor union refuses to authorize the president of the branch to nominate the convocation authority, it can be said that the member of the ○○○○○ branch branch by applying mutatis mutandis Article 18(3) of the Trade Union and Labor Relations Adjustment Act, so it can be said that the members of the ○○○○ branch branch by designating Nonparty 2 as the convening authority without going through these procedures, and then, it should be deemed that the removal from the general meeting is null and void, separate from the special circumstances where a resolution to change the organization into a trade union into a company-level (the removal from the general meeting).

Nevertheless, the court below held that the disciplinary committee (the disciplinary committee shall be composed of five labor-management members under Article 26 (5) of the above collective agreement) stipulated in the above collective agreement was legally constituted, and thus, the disciplinary action against the plaintiff was lawful, and the plaintiff's work as a full-time worker was dismissed without permission. Thus, the court below erred by misapprehending the legal principles on the convocation of a general assembly of a trade union, which affected the conclusion of the judgment. The ground of appeal No. 1 pointing this out is with merit.

3. Therefore, without examining the ground of appeal No. 2, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)