단체교섭 과정에서 교섭대표노동조합의 절차적 공정대표의무

Abstract

A bargaining representative union has the duty of fair representation (DFR) not to discriminate against minority unions and their members without reasonable grounds, which shall be observed in terms of procedural aspects of collective bargaining. Accordingly, a bargaining representative union should fulfill its obligation to provide information and collect opinions to minority unions in the process of collective bargaining. The breach of procedural DFR can be established only when the entire process of collective bargaining is considered and recognized that a bargaining representative union has deviated or abused its discretion as a representative. On the other hand, when a bargaining representative union conducts a ratification vote for a provisional agreement according to its union rule book, it is an internal procedure of a bargaining representative union, so it does not violate procedural DFR even if it does not give members of minority unions an equal opportunity to participate in the voting process. The Supreme Court, through Supreme Court Decisions 2017Da263192 and 2019Da262582, to which I agree, handed down its first judgment on the aforementioned issues of procedural DFR. A bargaining representative union may receive a correction order from the Labor Relations Commission for violation of procedural DFR, and may be liable for non-property damages caused by procedural rights infringement of minority labor unions. However, it does not invalidate collective agreements in which violations of procedural DFR occurred during collective bargaining. In addition to the DFR, a bargaining representative union shall bear the fiduciary duty to the entire group as the representative of all unions and their members participating in the process of determining the bargaining representative union.