Section 1: Parties and Need for Remedy
Chapter 2: Employer
2. Determination of the Existence of Employer Status under the Labor Union Act
2.2 Existence of the Employer Status of the State as One party of Collective Bargaining
| Supreme Court, September 11, 2008, Case 2006da40935 | |||||
| * Plaintiff, Appellant: Employment Counselors Union of the Ministry of Employment and Labor (MEL)
* Defendant, Appellee: Republic of Korea 1. Facts: a. The plaintiff, a union consisting of approximately 1,800 employment counselors working at 155 nationwide employment stability centers under the MEL, was established on July 15,2002. These counselors are engaged in employment related tasks such as job matchmaking, unemployment benefit distribution, vocational training, youth job experience programs, and self-support projects. b. From 1996, the Labor Ministry of the defendant began hiring civilian employment counselors to expand employment insurance tasks. The Ministry advertised under its name, stating, "The MEL seeks competent civilian employment counselors to work in regional labor offices nationwide" and specified the number of positions and the locations for each regional labor office. Subsequently, regional labor office directors hired the counselors and entered into employment contracts with them. At that time, there was no specific legal regulation (later specified on September 28,2001, in Article 12, Paragraph 2 of the Employment Security Enforcement Rules) granting regional labor office directors full authority to decide on hiring and employment conditions. c. MEL established regulations for vocational counselors as a Labor Ministry Ordinance on June 19,1998, regarding the recruitment and working conditions of vocational counselors to ensure administrative internal consistency. d. After the establishment of the Employment Security Enforcement Rules, the employment contracts between regional labor office directors and the counselors followed the stipulated format in these regulations. MEL frequently sent necessary directives related to the amendment and implementation of these regulations to the regional labor office directors, and transfers of employment counselors among different regional labor offices were coordinated simultaneously by the six directors. e. In terms of employment insurance, the employer is listed as the Minister of Labor, but the unit operation site is the director of the respective regional labor office. Similarly, for industrial accident compensation insurance, health insurance, and national pension, the registered operation site is the director of the regional labor office. f. The plaintiff requested collective bargaining with MEL on September 2,2002. On September 7, the Minister responded that the regional labor office directors, who directly hire and manage the employment counselors, should handle the collective bargaining. The plaintiff then reiterated their inquiry on September 13, asking about the Minister's overall control over employment counselors, but received another reply on September 24 reaffirming that the regional labor office directors are the employers. 2. Court Judgment: a. Article 2(2) of the Labor Union and Labor Relations Adjustment Act defines an employer as "a business owner, a business manager, or someone who acts on behalf of a business owner concerning matters related to the business's employees." Additionally, Article 29(1) of the same Act states that "a representative of a labor union has the authority to negotiate and enter into collective agreements with employers or employer associations on behalf of the union or its members." Furthermore, Article 81(3) of the Act identifies refusing or neglecting to engage in collective bargaining or conclude collective agreements with a union representative or a delegate of the union, without just cause, as an unfair labor practice, thus establishing the employer as the counterparty in collective bargaining. According to these statutory provisions, an "employer" refers to an entity that has an employment dependent relationship with employees, i.e., one that engages in a contractual relationship with employees to receive labor in exchange for wages, whether this contract is explicit or implied. When a government administrative body enters into a legal employment contract, the rights and obligations of this employment relationship accrue to the government as the administrative entity, thus qualifying the state as the employer in this context under Article 2(2) of the aforementioned law. b. The trial court recognized that the plaintiff is a union of employment counselors who are not civil servants but perform duties such as job matchmaking and unemployment benefits distribution. It acknowledged that regional labor office directors, subordinate administrative organs of the Minister of Labor, enter into legal employment contracts with these counselors and supervise them. Consequently, it determined that these directors are the employers according to the Labor Union and Labor Relations Adjustment Act, rejecting the plaintiff's claim that the defendant represents the employer's position in collective bargaining. However, considering the legal principles and factual circumstances acknowledged by the trial court, even though regional labor office directors contractually employ the counselors, this merely represents the administrative processing of employment contracts by these directors as part of the national administrative apparatus. Therefore, the rights and obligations of these contractual relationships belong to the nation, and consequently, the defendant, representing the nation, stands as the employer opposite the plaintiff in collective bargaining according to the Act. The trial court's failure to recognize this constitutes a legal misunderstanding, affecting the outcome of the decision. |
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