산업별 노동조합 지회와 기업별 노동조합 간의 조직형태 변경에 관한 고찰 - 서울고등법원 2012.9.21. 선고 2011나79540 판결을 중심으로 -

Abstract

Labor union, as a subject to enjoy the freedom of the right to form and change the organization, has the right to do so under the con- stitutional law. Current Trade Union and Labor Relations Adjustment Act states the structural changes as a matter which requires the resolution by the general meeting, and fixes the quorum. The purpose of the structure changes system under the Trade Union Law is to avoid the tedious process to disband or establish of a trade unions, and to make the change of the organizational form efficiently. Recently the system is being utilized as a means to change its organizational structure by industrial union branches to separate from the labor union to form the enterprise unions. In the case, although the court judgment did not specifically review the concept, the requirement and the effect of the changes in the structure, saw “A” branch as a division of the trans-enterprise and stated that such division of the industryㆍcraftㆍregional unit unions cannot be the subject to change the organizational structure because it lacks the independent power to collective bargain or to sign collective agreements. Therefore the court rescinded the bylaws set from the general meetings of the union. However, the ruling in the case can be subject to criticism because it can limit the freedom to collectively act and thus could infringe the right to pursuit happiness by interpreting the nature of the labor union too firmly and by neglecting to substantially consider the majorities union members’ intension and purpose. Labor unions represent the interests of their member employees and their role most properly comply with the spirit of the Constitution guarantees when they can properly defend such interests. Internal democracy of the union has the utmost importance to bring this about and the democracy of the union can be met when the majority opinion of the union members has been reflected. The court likewise need to consider such actively.