사용자단체가 체결한 단체협약에서 공정대표의무 위반에 대한 시정명령 상대방 ― 대법원 2019. 4. 23. 선고 2016두42654 판결을 대상으로 ―

Abstract

The judgement is a rare in Korea, targeting collective agreement signed at the industrial trade union level. It deals with the parties to the collective agreement, those who have rights and obligations and violations of the duty of fair representation raised in implementing collective agreement. The legal status of ‘Seoul bus business association’ has been determined as an organization joined by employers and agrees with this position of this judgment. It is also reasonable to examine those who has the rights and obligations of a collective agreement separately from the parties to the collective agreement. However, it is hard to agree with the ruling on the subject of order to correct violations of the duty of fair representation. The employers’ organization as a party to collective agreements is no different from that of trade union. Individual employer also has the ability to sign a collective agreement, but for that reason, there is nothing else to judge or consider in particular the status of the employers’ organization. Therefore, if the collective agreement signed at the industrial trade union level has provisions relating to the support fund and defines the subject of payment as a employers’ organization, it is subject to order to correct violations of the duty of fair representation arising from discrimination. This is the same even if the fund comes from income that is owned by individual employer. In this regard, it is very positive that the judgement extended the duty of fair representation to the process of implementing the collective agreement, that the content of the duty of fair representation in the process was understood to be an active obligation that effectively excludes discrimination, and that in the case of a collective agreement signed at the industrial trade union level, the employers’ organization is also recognized as a subject to the duty. However, I do not agree with some of the judgement that an individual employer, who is neither a party to the collective agreement nor is defined as those who implements the funds, has determined to be the subject of order to correct violations of the duty of fair representation