교섭창구단일화를 통한 단체교섭에서 사용자의 의무와 의무위반의 부당노동행위성 — 대상판결: 대법원 2021.8.19., 선고 2019다200836 판결(원심판결: 부산고등법원(창원 제1민사부) 2018.12.13., 선고 (창원)2018나11667 판결) —

Abstract

Recently, the Supreme Court judged that the employer has the neutrality maintenance obligation when the employer conducts collective bargaining with the representative bargaining trade union through Procedures for Simplification of Bargaining Windows. In addition, if the employer violates the neutrality maintenance obligation, he will be punished for handling the disadvantage and the domination and intervention as unfair labor practices. This judgment is drawing considerable attention in the system of laws in which the neutrality maintenance obligation(Article 29-2, Paragraph 2) and the fair representation obligation(Article 29-4) in the Trade Union Act. This ruling is inconsistent with the legal nature of the two obligations and the systematic meaning of the Trade Union Act in that it does not distinguish between the neutrality maintenance obligation and the fair representation obligation. In addition, there are many concerns that this ruling will have a great influence on the interpretation and application of the obligation to maintain neutrality or prohibit discrimination under Article 29-2 (2) of the revised Labor Union Act. I would like to mention the obligations that employers have when conducting collective bargaining with the representative bargaining trade union determined through Procedures for Simplification of Bargaining Windows, and whether it is unfair labor practices to violate these obligations. First, when an employer negotiates with the representative bargaining trade union determined through the Procedures for Simplification of Bargaining Windows, it is not appropriate to impose the employer with the neutrality maintenance obligation, not the fair representation obligation. It is violates the right to collective bargaining of the bargaining representative union and goes against the principle of autonomy of the agreement. Second, ‘discrimination in preconditions’, which is a prerequisite for the establishment of the neutrality maintenance obligation, is applied when bargaining independently with each labor union. Therefore, it cannot be applied in the case of negotiation through Procedures for Simplification of Bargaining Windows. Finally, I specifically reviewed whether the act meets the requirements of each subparagraph of Article 81 (1) of the Trade Union Act in the case where the employer's act is judged as a violation of the obligation to maintain neutrality, as in this ruling. As a result, I became convinced that the employer's actions in this case were not unfair labor practices of disadvantage handling, control and intervention.