[Plaintiff, Appellee] National Federation of Hospital Workers' Unions, Attorneys Yoon Jong-hyun and 3 others, counsel for the Plaintiff
[Defendant, Appellant] Minister of Labor, Attorney Oh Sung-hwan, counsel for the Defendant
[Judgment Below]
Seoul High Court Decision 89Gu1232, delivered on July 16, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
(1) According to the reasoning of the judgment below, the court below found as follows: The Plaintiff is a trade union organized as a federation composed of trade unions in the medical business, health business, and other related fields; it completed its founding convention on December 17, 1988, and submitted a report of establishment of a trade union to the Defendant on January 5, 1989. The Defendant, on January 7, 1989, issued a disposition returning the said report of establishment on the ground that the Plaintiff had a disqualifying cause under Article 3, proviso, item 5 of the Trade Union Act (노동조합법), in that the Plaintiff shared the same object of organization with the non-party National Federation of Allied Labor Unions (hereinafter "the non-party Federation"). The non-party Federation is a federation-type trade union established on September 21, 1961, and its bylaws designate its object of organization as trade unions in 55 industries, including civil engineering, construction, food service, hairdressing and beauty, medical business, and environmental sanitation, as well as job categories not belonging to other federations or industry-specific unions. At the time the Plaintiff filed its report of establishment, 146 nationwide hospital-level trade unions were affiliated with the non-party Federation, of which 81 trade unions declared their withdrawal from the non-party Federation and organized the Plaintiff Federation. The Plaintiff's bylaws provide that its members shall be trade unions in the medical business, health business, and other related businesses, and currently 110 nationwide hospital-level trade unions are affiliated with the Plaintiff Federation, and the Plaintiff is in fact operating as an industry-specific federation of nationwide hospital trade unions. Under the umbrella of the non-party Korea Federation of Trade Unions, which is the general federation under Article 13, Paragraph 2 of the Trade Union Act, there exist a total of 20 federation-type trade unions, including the non-party Federation, as listed in the attached list in the judgment, and the non-party Federation alone does not target any specific industry. Having found these facts, the court below premised that the legislative purpose of Article 3, proviso, item 5 of the Trade Union Act, which prohibits a trade union from sharing the same object of organization with an existing trade union, is to prevent the weakening of solidarity due to factional strife and excessive competition among trade unions, difficulties in collective bargaining and complexity in the application of collective agreements, and the establishment of company-dominated unions by employers, in cases where multiple unions are permitted. Therefore, whether a newly established trade union shares the same object of organization with an existing trade union should not be determined solely on the basis of the formal content of the bylaws, but should be determined by comprehensively considering, in light of the above legislative purpose, the nature of the duties, job types, and scope of membership of the union members, and by examining whether the essential content of workers' right to organize, as guaranteed under the Constitution, would be infringed. On this premise, the court below held that trade unions may be classified, according to their mode of combination, into unit trade unions composed of individual workers and federation-type trade unions composed of unit trade unions; that Article 13, Paragraph 2 of the Trade Union Act provides that a federation-type trade union shall have as its members unit trade unions of the same industry; that, in light of the facts found above, the non-party Federation is composed of unit trade unions belonging to 55 or more mutually different industries not belonging to any particular existing industry-specific union, and thus cannot be regarded as an industry-specific federation under the current Trade Union Act; that this conclusion does not change merely because, under Paragraph 2 of the Addenda to the Trade Union Act as amended on November 28, 1987, the non-party Federation is deemed to be a trade union established under the current Trade Union Act; that, therefore, a federation-type trade union such as the Plaintiff, which is established by organizing only a specific industry among the various industries enumerated in the bylaws of the non-party Federation, should be recognized as an industry-specific federation under Article 13, Paragraph 2 of the Trade Union Act; and that, in light of the legislative purpose of Article 3, proviso, item 5 of the Trade Union Act as discussed above, such a trade union should be deemed not to share the same object of organization with the non-party Federation. On a premise different from this, the court below determined that the Defendant's disposition in this case was unlawful.
(2) (A) The reason why Article 13, Paragraph 2 of the Trade Union Act (hereinafter "the Act") recognizes an industry-specific federation as one form of trade union under the Act is that unit trade unions of the same industry are organized by workers under identical or similar working conditions and operate in identical or similar social and economic positions vis-à-vis employers; accordingly, allowing them to federate and form a single organizational body is considered effective for increasing the bargaining power of workers and for improving working conditions and enhancing the social and economic status of workers. However, forming an industry-specific federation from unit trade unions of entirely heterogeneous industries, rather than the same industry, has little practical necessity and is not something contemplated by the above provision.
Of course, in modern industrial society, due to the diversification and complexity of industries, it is not easy to limit the scope of what constitutes the "same industry"; what was once part of the same industry may, due to the advancement of industry, become differentiated into separate industries, and conversely, due to innovations in industrial technology, the opposite phenomenon may occur. Nevertheless, whether industries are the same should be judged from the perspective of the legislative purpose mentioned above, and in some cases, it may be possible for two or more industries that are not identical but are similar or interrelated—such as banking and insurance, for example—to jointly form a composite industry-specific federation. However, in the case of the non-party Federation in this case, which encompasses 55 entirely heterogeneous industries such as construction, food service, and medical business, and moreover includes, as its object, all other categories not belonging to other industry-specific federations, such a federation composed of unit trade unions targeting such all-encompassing categories has little necessity for recognition, is unlikely to perform the proper function of an industry-specific federation, and cannot be regarded as composed of unit trade unions of the "same industry" as required under the above provision of the Act. Therefore, it must be concluded that the non-party Federation is not an industry-specific federation under the above provision of the Act.
(B) It was only from the amendment of December 31, 1980 that Article 13, Paragraph 2 of the Act expressly designated an "industry-specific federation" composed of unit trade unions of "the same industry" as a trade union under the Act. Prior to that, Article 13 of the Act contained no such content; there existed only the concept of "federation," without the limitation of "same industry." Accordingly, the non-party Federation, at the time of its establishment on September 21, 1961, was a "federation," which was one lawful form of trade union at that time. Even upon the amendment of December 31, 1980, the non-party Federation was deemed to be a trade union under the Act pursuant to the transitional provisions of Paragraph 2 of the Addenda (although the proviso of Paragraph 2 of the Addenda provided that, in cases where the bylaws of a union deemed to be a trade union under the Act conflicted with the amended Act, the union was to file a report of amendment to conform to the provisions of the Act by March 31, 1981, in the case of the non-party Federation, mere amendment of its bylaws could not bring it into conformity with the Act—only division of the union or similar measures could achieve conformity; thus, the non-party Federation cannot be regarded as falling under the above proviso, and even if it did fall thereunder, failure to comply would merely subject it to a corrective order, and it cannot be said that the non-party Federation, having already become a trade union under the Act pursuant to the main text of the provision, thereby became a union outside the Act). Thereafter, although the wording of Article 13, Paragraph 2 of the Act was again revised on November 28, 1987, its substantive content remained the same, and there again existed a transitional provision under Paragraph 2 of the Addenda, so that the non-party Federation continued to be a trade union under the Act.
Accordingly, the non-party Federation, while not an industry-specific federation or a general federation under Article 13, Paragraph 2 of the Act, conforms to the definition of "federation" under Article 3 of the Act, and thus may be regarded as a federation-type trade union under that Article. Although the current Act did not contemplate a form of trade union that is a federation under Article 3 but is neither an industry-specific federation nor a general federation, since the non-party Federation was a lawful trade union established under the pre-amendment Act and is recognized as a trade union under the Act by virtue of the transitional provisions of the Addenda even under the amended Act, it is thought that recognition of such a form of trade union is unavoidable. While, as noted above, the necessity for recognizing trade unions of this organizational form is considered to be small, it is not entirely meaningless to recognize such a form of federation, since unit trade unions of various industries that have not developed sufficient strength to form an independent industry-specific federation may, by forming a federation, build up a certain degree of strength to promote improvement of their social and economic status, and may also benefit from support by becoming a subordinate organization of a general federation (under Article 13, Paragraph 2 of the current Act, a unit trade union that is not nationwide in scope cannot directly join a general federation).
(C) In determining whether a trade union seeking to be newly established falls under the case where "its object of organization is the same as that of an existing trade union" under Article 3, proviso, item 5 of the Act, which is one of the negative requirements for the establishment of a trade union, since Article 14, items 4 and 7 of the Act require that the object of organization be stated as a mandatory matter in the bylaws at the time of establishment of a trade union, and the object of organization of an existing trade union is thus stated in its bylaws, it should, in principle, be determined based on the content stipulated in the bylaws of the existing trade union. However, since the question of identity of the object of organization arises only between trade unions of the same organizational form, it should not be determined solely on the basis of the formal provisions concerning the object of organization in the bylaws; rather, it is necessary to examine, taking into account the organizational form stipulated in the bylaws and the actual substance and scope of membership of the trade union's members, whether the existing trade union is of the same organizational form as the trade union sought to be newly established.
However, as determined above, the existing union, the non-party Federation, is merely an atypical federation that is not an industry-specific federation under Article 13, Paragraph 2 of the Act, and its organizational form is not the same as that of the Plaintiff, which is an industry-specific federation; therefore, it cannot be said that the non-party Federation has designated any specific industry as its object of organization. Even if Article 6 of its bylaws provides that it is composed of unit trade unions in 55 industries, including the medical business, and other job categories not belonging to other federations or industry-specific unions, the industries enumerated in the said bylaws do not correspond to the specific "same industry" that distinguishes the object of organization of an industry-specific federation under the above provision of the Act. Accordingly, the industries enumerated in the said bylaws have not yet become the object of organization of an industry-specific federation, and therefore it cannot be said that designating unit trade unions of any specific industry among those enumerated in the said bylaws as one's object of organization means sharing the same object of organization with the non-party Federation. Accordingly, unit trade unions of any specific industry enumerated in the said bylaws may, regardless of whether they are affiliated with the non-party Federation or have withdrawn therefrom, at any time form a new industry-specific federation for a new industry, so long as that industry does not coincide with that of any of the 19 already established industry-specific federations.
Therefore, since the medical business and health business have not yet become the object of organization of any industry-specific federation, it cannot be said that the Plaintiff, an industry-specific federation whose object of organization is the medical business, health business, and other related unit trade unions, shares the same object of organization with the non-party Federation. The determination of the court below, which took the same view, is justified, and there is no illegality therein, as argued in the grounds of appeal, in the form of a misunderstanding of the law regarding Article 13, Paragraph 2 and Article 3, proviso, item 5 of the Act that led to an erroneous interpretation and application thereof. Accordingly, all the grounds of appeal are without merit.
(3) Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the case.
Justice Choi Jae-ho (Presiding Justice), Bae Man-woon, Kim Seok-su (Justice in charge), Choi Jong-young