2010Guhap3283 Revocation of corrective order in a collective agreement

Korean Teachers' Union

Minister of Employment and Labor

March 4, 2011

March 25, 2011

1. On June 25, 2010, the Defendant’s corrective orders issued to the Plaintiff regarding Article 10(1) of the collective agreement concluded on December 28, 2006 by the Superintendent of the Provincial Office of Education of the Plaintiff, the Korea Teachers’ Union, and the Governor of the Provincial Office of Education of Jeollabuk-do regarding the Plaintiff, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Defendant, and the remainder by the Plaintiff, respectively.

The Defendant’s corrective order concerning the attached collective agreement as to the Plaintiff on June 25, 2010 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is an industrial unit trade union established on July 1, 199 by Yeongdeungpo-gu, Yeongdeungpo-gu, Seoul, the main office of which is 49-1 Hyundai Flaz. 201, and whose organization is nationwide kindergartens, elementary, middle and high school teachers, etc.

B. On December 28, 2006, the Plaintiff concluded a collective agreement with the Korean Teachers’ Union and the Superintendent of the Provincial Office of Education, the Korean Teachers’ Union and the Superintendent of the Provincial Office of Education, the Korean National Teachers’ Union and the Jeju Special Self-Governing Province Office of Education on January 31, 2007 (hereinafter referred to as “collective agreement with the Jeju Branch,” respectively.

C. On April 8, 2010, the Defendant requested the Jeonbuk Regional Labor Relations Commission and the Jeju Special Self-Governing Province Regional Labor Relations Commission to make a provisional decision on the grounds that the attached collective agreements in each of the said collective agreements violate Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”). Accordingly, the Jeju Special Self-Governing Province Regional Labor Relations Commission decided on April 23, 2010; and the Jeonbuk Regional Labor Relations Commission decided May 14, 2010 that each of the said collective agreements violated the Trade Union Act.

D. On June 25, 2010, the Defendant issued a corrective order under Article 14(1) of the Act on the Establishment, Operation, etc. of Teachers’ Unions and Article 31(3) of the Trade Union Act with respect to each of the above collective agreements on the grounds that the Plaintiff violated Article 81 subparag. 4 of the Trade Union Act (hereinafter “instant corrective order”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 to 4, the purport of the whole pleadings

2. Determination on this safety defense

The defendant, around June 21, 2010, notified the superintendent of education of Jeju Special Self-Governing Province that the collective agreement of Jeju Branch ceases to exist after the lapse of six months from the date of notification to the head of Jeju Branch Office of the plaintiff union pursuant to the proviso of Article 32 (3) of the Trade Union Act. Since the collective agreement was terminated on December 21, 2010, the above collective agreement was terminated around December 21, 2010, the plaintiff has no legal interest to seek cancellation of the corrective order of the above collective agreement.

However, if an administrative disposition is invalidated, there is no legal interest in seeking cancellation of the administrative disposition, unless there is any special circumstance to deem that there is a violation of any legal interest due to the remaining external form of the disposition. However, if there is a risk of criminal punishment in the case of violation of the above administrative disposition, it shall be subject to criminal punishment, and if there is a risk of criminal punishment due to such violation, it shall be subject to special circumstances to deem that the administrative disposition is in violation of legal interest due to such administrative disposition. Thus, the person who violates the corrective order under Article 31 (3) of the Trade Union Act shall be punished by a fine not exceeding five million won, and in this case, the person shall be punished by a fine not exceeding five million won, and in addition to the offender under Article 94 of the same Act, there is a legal interest in seeking cancellation of the part concerning the collective agreement of the Jeju Branch of this case among the corrective order of this case,

3. Whether each of the corrective orders of this case is lawful

A. The plaintiff's assertion

Each of the instant corrective orders is unlawful as the following illegal grounds exist for each of the provisions of the collective agreement.

1) Article 11(3) of the collective agreement of the former North Korean Branch provides that a City/Do superintendent of education may lend or sell closed school property to local residents pursuant to Article 5(1) of the Special Act on the Promotion of Utilization of closed school property (hereinafter referred to as the “Closed School Property Act”). If a labor union satisfies the prescribed requirements, local residents can be permitted to use idle space in the school if they meet the prescribed requirements. The autonomy is infringed even if a labor union satisfies the prescribed requirements, and thus, the use of idle space in the school is prohibited.

2) 전북지부 단체협약 제60조 제5항 후단 교원의 연수는 노조원이 아닌 자를 포함하는 모든 교원이 부담하는 것이어서 명백히 개별적 근로관계에서 발생하는 의무이므로 연수비용은 노동조합법 제81조 제4호가 금지하는 노동조합의 운영비에 해당되지 않고, 교원이 개별적으로 자율연수를 시행한 때에는 연수비용을 지급받을 수 있으나 노동조합이 연수를 주관할 떄에는 연수비용을 지급받을 수 없다면 형평에 반하게 된다.

3) The purpose of Article 11(4) of the collective agreement of the former North Korean Branch and Article 10(1)4 of the collective agreement of the former North Korean Branch is to secure the independence of a trade union. Thus, if there is no risk of undermining the autonomy of a trade union, a trade union may not be deemed an act prohibited by the above provision even if the trade union receives an operational expense, management expense, etc. from the employer’s side. Since the provisions of each of the above collective agreement were concluded with the affirmative demand of the trade union, there is no risk of undermining the autonomy of the trade union

B. Relevant legislation

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Purport of Article 81 subparag. 4 of the Trade Union Act

Article 81 subparag. 4 of the Trade Union Act prohibits an employer from engaging in unfair labor practices. The operating expenses refer to all expenses necessary for the establishment of a trade union, including the purchase of goods, labor cost for union employees, expenses incurred in meetings, such as labor union meetings, and other expenses to be paid from the budget of a trade union. The operating expenses of a trade union shall be paid from the union expenses paid by members of a trade union. If a trade union receives a subsidy from a user for expenses necessary for its operation, it shall lose autonomy as an organization in a counter-party relationship, and even if not, it shall be prohibited from providing an employer with an opportunity to control and improve a trade union. Provided, That it is allowed to receive a minimum amount of a trade union office from the employer, but it is allowed to receive supplies and facilities such as books, chairs, electric facilities, etc. which must be kept ordinarily together with the office, or it is prohibited to receive any expenses that cannot be naturally recognized by social norms.

In light of the purport of Article 81 subparag. 4 of the Trade Union Act, each of the instant corrective orders is lawful according to the collective agreement provisions subject to the corrective order.

2) Article 11(3) of the collective agreement of the former North Korean Branch;

In light of the following circumstances, since Article 81 subparagraph 4 of the Trade Union Act provides assistance prohibited by Article 81 of the same Act, it seems that trade unions are likely to lose autonomy or provide users with an opportunity to easily control and join a trade union. Accordingly, the corrective order of this case regarding the above collective agreement is legitimate, and therefore, the plaintiff's allegation in this part is without merit.

A) In light of the form in which the provision of the above collective agreement provides that “facilities and convenience are provided” under the title of Article 11(3), and that the provision of Article 11(4) provides support for the incidental expenses necessary for trade union activities, permission to use the abolished idle space for a trade union shall be deemed an assistance act under the main sentence of Article 81(4) of the Trade Union Act.

B) Permission to use an abolished school idle space does not constitute an exception to the proviso of Article 81 subparag. 4 of the Trade Union Act.

C) When the contents of the provisions of the collective agreement as seen in the language and text, the trade union seems to have anticipated the abolished school idle space to be used free of charge, and to have prescribed the contents of the collective agreement.

D) Even if a trade union uses a school idle space for which it has been abolished at a cost pursuant to the provisions of the above collective agreement, there may arise issues such as the appropriateness of the sales price or rent-to-rent, and the provision of an incidental profit according to the permission for use. This also goes against the purport of Article 81 subparag. 4 of the Trade Union Act as it may be seen as an act of assistance.

3) The latter part of Article 60(5) of the collective agreement of the Jeonbuk Branch.

In light of the following circumstances, the provision of the collective agreement also appears to be an assistance prohibited by Article 81 subparag. 4 of the Trade Union Act. Accordingly, the instant corrective order regarding the provision of the collective agreement is lawful. Therefore, the Plaintiff’s assertion on this part is without merit.

A) Since the autonomous training conducted by the Plaintiff’s Jeonbuk branch of the Plaintiff Union shall be deemed to belong to the activities of the labor union, the expenses therefrom are required to be paid out from the labor union’s budget. Thus, administrative and financial support for autonomous training activities conducted by the labor union shall be deemed as an assistance act under the main sentence of Article 81 subparag.

B) Administrative and financial support for voluntary training activities does not constitute an exception permitted by the proviso to Article 81 subparagraph 4 of the Trade Union Act.

C) According to the provisions on training of the Public Educational Officials Act and teachers, etc., a training that can subsidize expenses is a job or qualification training administered by the State and local governments, and its payment limit is within the scope of the teaching materials cost, and the payment limit is also within the scope of the teaching materials cost.

4) A trade union is allowed to receive a minimum amount of office from an employer pursuant to Article 11(4) of the collective agreement of the former North Korea Branch and Article 10(1) proviso of the collective agreement of the former North Korea Branch, and Article 81(4) of the Trade Union Act of the former Branch. The provision of equipment and facilities, such as books, chairs, electric facilities, etc., which must be kept ordinarily together with the office, shall be allowed to be provided. However, it is prohibited to receive the cost that is not naturally recognized by social norms regardless of the continued provision of expendable goods and office supplies.

On the other hand, each collective agreement provision is a provision that the Office of Education provides support to a trade union for the "facilities incidental to the activities of the trade union", and for the "facilities incidental to the trade union", and for the "facilities expenses for the use of equipment, expenses for the purchase of equipment, and expenses for relocation of office (including incidental facilities expenses)." In its meaning, it is possible to interpret the "trade union's office expenses that the employer can receive from the employer, and incidental facilities and equipment expenses to the extent acceptable by social norms necessary for the operation of the office. Therefore, it is not likely that trade union's autonomy is lost due to the provisions of each collective agreement as above, or that the employer

The defendant has supported expenses that cannot be naturally recognized by social norms, such as laundry and the purchase cost of the laundry professional projector, according to the plaintiff's budget request made by the Jeonbuk District Office of Education and Jeju District Office based on the provisions of the above collective agreement. Thus, each collective agreement is alleged to violate Article 81 subparagraph 4 of the Trade Union Act, but it is interpreted that the part exceeding the scope of the expenses that the employer can provide to the trade union can refuse the request of the trade union during the enforcement process. Thus, this is merely an issue in the application of the provisions of the above collective agreement and does not seem to be

Therefore, each collective agreement provision does not violate Article 81 subparagraph 4 of the Trade Union Act, and thus, each of the corrective orders in this case is unlawful. Therefore, the plaintiff's allegation in this part is with merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.