Section 3: Collective Industrial Relations
Chapter 2: Plural Labor Union
6. Duty of Fair Representation
6.1 Recognition of Unfair Conduct Liability for Violation of Duty of Fair Representation such as Non-provision of Union Office
| Supreme Court Decision on August 30, 2018, Case 2017da218642 | |||||
| * Plaintiff, Appellee: National Public Transport Service Union
* Defendant, Appellant: ○○Transport Co., Ltd. and 6 others 1. Facts a. The defendants are companies engaged in city bus transportation business in the Daejeon area, and the plaintiff is a national industrial union with a higher-level organization of the Korean Confederation of Trade Unions, which established a 'branch.' Meanwhile, the Daejeon City Bus Workers' Union, which is a labor union targeting bus employees in the Daejeon area, has the Federation of Korean Trade Unions as its higher-level organization. This union established a 'chapter' in question at the defendants' workplaces. b. The defendants' workplaces are so-called multiple union workplaces where the plaintiff's branch and the chapter in question coexist. Until the unification of bargaining channels was achieved, the defendants concluded separate collective agreements and wage agreements with the plaintiff's branch and the chapter in question. c. After the implementation of the bargaining representative unification system, around July 2012, the process of unifying the bargaining channels was carried out at the defendants' workplaces. As a result, the chapter in question, organized by the majority of all union members who participated in the unification process, was decided as the bargaining representative union. d. During the negotiations for the 2013 collective agreement, the defendants and the chapter in question agreed that "the company shall only provide office space, equipment, and necessary communication facilities to the representative union." The plaintiff claimed that this agreement was a violation of the duty of fair representation and filed a petition for correction with the South Chungcheong Provincial Labor Relations Commission, which determined on May 12, 2014, that the agreement was a violation of the duty of fair representation. 2. Court Judgment a. Under the bargaining channel unification system, a labor union that is not the bargaining representative union cannot independently exercise its collective bargaining rights. Therefore, to protect unions that have not become the bargaining representative union, the Trade Union and Labor Relations Adjustment Act (hereinafter referred to as the "Trade Union Act") imposes a duty of fair representation on the employer and the bargaining representative union to ensure that unions or their members who participated in the unification process are not discriminated against without reasonable cause (Article 29-4, Paragraph 1). The duty of fair representation functions as an institutional mechanism to prevent the essential content of the right to collective bargaining, as guaranteed by the Constitution, from being violated. It also justifies the extension of the effects of a collective agreement concluded by the bargaining representative union and the employer to other unions participating in the unification process. In light of the purpose and function of the duty of fair representation, it is reasonable to conclude that the duty of fair representation must be observed not only during the process of collective bargaining and in the content of the resulting collective agreement but also in the implementation of the collective agreement. Additionally, if it is recognized that the bargaining representative union or the employer has discriminated against other unions or their members who participated in the unification process, the bargaining representative union or the employer bears the burden of assertion and proof to demonstrate that there is a reasonable cause for such discrimination. b. Considering the importance of a union office as a space where daily activities necessary for the existence and development of the union are carried out, if the employer provides the bargaining representative union with a union office for regular use in accordance with the collective agreement, it is reasonable to expect that, barring special circumstances, the employer should also provide other unions participating in the unification process with a certain space for regular use as a union office. This does not necessarily have to be uniform or proportional. Conversely, providing a union office to the bargaining representative union while completely denying other participating unions a union office or only temporarily allowing them to use company facilities, citing physical limitations or cost burdens, cannot be considered a reasonable cause for discrimination. |
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| Download : 대법 2017다218642.pdf | |||||
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