[Plaintiff, Appellee] Yonhap Steel Co., Ltd. Labor Union, Litigation Representatives Attorney Moon Jae-in and 2 others
[Defendant, Appellant] Head of Nam-gu District Office, Busan Metropolitan City, Litigation Representatives Attorney Lee In-su and 1 other
[Intervenor for Defendant] Yonhap Steel Industry Co., Ltd., Litigation Representative Attorney Ko Seok-yun
[Judgment Below]
Busan High Court Decision 90Gu3232 dated September 25, 1991
[Order]
The judgment below is reversed, and the case is remanded to the Busan High Court.
[Reasoning]
The grounds for appeal are examined.
1. As to Ground No. 1
According to the record, the Defendant's order to amend and supplement the labor union rules at issue in this case was one in which the Defendant, having found that the provisions of Article 20, Paragraph 1, Item 9 and Article 92 of the Plaintiff union's rules at issue in this case violated Article 33, Paragraph 1 and Article 34, Paragraph 1 of the Trade Union Act (노동조합법) (hereinafter referred to as the "Act"), exercised its power of order under Article 16 of the Act, which is one form of public authority, as an enforcement of the law with respect to the specific facts, thereby directly expressing to the Plaintiff union, the counterparty, the administrative agency's intention regarding labor administration ordering the appropriate amendment and supplementation of the relevant provisions of the union rules so as not to violate the specified statutory provisions. This constitutes an administrative disposition as prescribed under Article 2, Paragraph 1 of the Administrative Litigation Act (행정소송법).
The court below, in the same vein, was correct in rejecting the Defendant's preliminary objection on the merits that the Defendant's above corrective order lacked concreteness, maturity, and direct effect, and therefore did not constitute an administrative disposition subject to administrative litigation, and there is no error of law in misunderstanding the legal principles as argued in the grounds of appeal. This ground for appeal is without merit.
2. As to Grounds No. 2 and No. 3
According to the reasoning of the judgment below, the court below organized the following as undisputed facts: that Article 20, Paragraph 1, Item 9 of the Plaintiff labor union's rules provides that the general assembly has voting rights over the consent to conclude collective agreements and various other agreements submitted at the expanded executive meeting, and that Article 92 provides that the authority to conclude collective agreements and various other agreements of the Plaintiff labor union rests with the chairperson, but that the collective bargaining committee shall, after sufficient bargaining, undergo deliberation by the expanded executive meeting and conclude the agreement upon determination by a vote of approval or disapproval of the union members, provided that agreements or accords which lower already-obtained working conditions cannot be concluded without a resolution of the general assembly; and that the Defendant issued the order to amend and supplement the union rules on the ground, in essence, that the above two provisions of the Plaintiff labor union's rules (hereinafter referred to as "the rules at issue in this case") constitute an essential restriction on the right to collective bargaining and the right to conclude collective agreements held by the representative of the labor union under Article 33, Paragraph 1 and Article 34, Paragraph 1 of the Act.
Having organized the above as undisputed facts, the court below determined that: the right to collective bargaining held by the representative of a labor union as prescribed under Article 33, Paragraph 1 of the Act is to be interpreted merely as meaning that the representative has the authority to conduct collective bargaining on behalf of the labor union or its members, in relation to the employer or employers' association, and is not to be interpreted as meaning that the representative has the authority to conduct collective bargaining with the employer independently, regardless of the will of the labor union or its members, or that the representative of the labor union has the authority to conclude a collective agreement, based on his or her own independent judgment, with respect to matters agreed upon after bargaining with the employer, without any restriction from the labor union or its members; that Article 34, Paragraph 1 of the Act is likewise nothing more than a provision concerning the formal requirements of a collective agreement, requiring that the content of the agreement be reduced to writing and signed and sealed, and that "both parties" referred to therein refers to the subjects of the conclusion of the collective agreement, namely the labor union and the employer, such that this provision cannot be interpreted as a provision allowing the representative of the labor union to conclude a collective agreement independently, based on matters agreed upon as a result of collective bargaining, separate from the will of the labor union or its members; and therefore, the rules at issue in this case cannot be deemed to violate Article 33, Paragraph 1 and Article 34, Paragraph 1 of the Act. On this basis, the court below determined that the disposition in this case, which ordered the amendment and supplementation of the rules at issue in this case as described above, was unlawful.
However, the main text of Article 33, Paragraph 1 of the Act provides that "the representative of a labor union or a person delegated by the labor union shall have the authority to bargain with the employer or employers' association on behalf of the labor union or its members with respect to the conclusion of a collective agreement and other matters." Here, the term "authority to bargain" must be interpreted as including not only the authority to conduct collective bargaining as a factual act, but also the authority to conclude a collective agreement in accordance with the results of such bargaining. Furthermore, as in the rules at issue in this case, granting the general assembly voting rights over the consent to conclude collective agreements and various other agreements of the Plaintiff labor union, and requiring the representative of the Plaintiff labor union to conclude a collective agreement only after deliberation by the expanded executive meeting and a vote of approval or disapproval by the union members regarding the results of collective bargaining, constitutes a comprehensive and total restriction on the authority of the representative or delegate to conclude collective agreements, thereby effectively hollowing out and rendering nominal such authority to conclude collective agreements. This cannot but be found to violate the purport of Article 33, Paragraph 1 of the Act, which provides for the authority of the union representative or delegate to conclude collective agreements (see this Court's en banc Decision 91Nu12257 dated April 27, 1993).
If so, the rules at issue in this case violate the provisions of the main text of Article 33, Paragraph 1 of the Act, and therefore the Defendant's disposition in this case, which ordered the amendment and supplementation of the rules, must be deemed lawful. The judgment below, having determined that the Defendant's disposition in this case was unlawful on the ground that the rules at issue in this case were not unlawful, contains an error of law in misunderstanding the legal principles concerning the authority to conclude collective agreements, which affected the outcome of the judgment. The ground for appeal pointing this out is with merit.
3. Accordingly, without need to further examine the remaining grounds for appeal, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered by the unanimous opinion of the participating Justices as set forth in the Order.
Justice Cheon Kyung-song (Presiding Justice), Yoon Kwan, Kim Ju-han (Justice in Charge), Kim Yong-jun