공정대표의무위반 시정신청 신청기간의 기산점에 관한 해석상 쟁점

Abstract

The duty of fair representation is to protect minority trade unions that have not become the representative bargaining trade union and the members thereof from unreasonable discrimination and to ensure the constitutionality of the simplification of bargaining windows system. The interpretation of the starting point of the filing period of the application for correcting a violation of the duty of fair representation is frequently problematic. Legislative improvement would be desirable for clearer problem solving, But, until then, it is necessary to solve the problems through active interpretation. If discrimination is committed based on discriminatory content in a collective agreement without providing information on collective bargaining and signing of collective agreements for minority unions, the date of discrimination needs to be interpreted as the day when the minority unions became aware of the discriminatory acts. It is also necessary to seek an interpretation that actively takes advantage of the  provisions regarding the suspension of the period under the Administrative Procedures Act. Meanwhile, in the case of an application for correction of a violation of the duty of fair representation, it is reasonable to interpret the application period as calculated from the date of the end of the discriminatory behaviors. In the event of a problem with discrimination caused by a employer's misconduct, the timing of the obligation to correct the existing discriminatory situation should be regarded as the starting point of the correction application period.