공정대표의무

Abstract

「The Trade Union and Labor Relations Adjustment Act」(the “TULRA”) introduced the duty of fair representation of bargaining representative labor union(the “BR”) and the unification of the collective bargaining as well. Under the Article 29-4 of the TULRA, a member of the collective bargaining unit(the “MU”) would file a motion to the Labor Relations Commission(the “LRC”) in order to correct the conduct by the BA based on unreasonable discrimination. Let’s take an instance, in which the BR discriminates the MU in collective agreement negotiation process intentionally, however, in sum, with no unreasonable discrimination in contents of final collective agreement. In almost every similar case, the Central Labor Relations Commission(the “CLRC”) dismisses the motion on the ground that such case has no merits. The issue presented by the above action, also known as the administrative order from the CLRC, is whether the CLRC has a policy to disregard the discrimination in process by the BR, but more focus on the discrimination in the collective agreement. Insisting such policy is against both the purpose of the duty of fair representation of bargaining representative labor union and the unification of the collective bargaining under the TULRA. Considering the fact that courts, which are deemed to be the final protective agency of the MU, are highly unlikely to acknowledge the illegality of violation of the duty of fair representation in process, the current conduct by the CLRC should be modified. As for the special administrative commission, the CLRC should issue administrative orders actively and variously in pursuing the protection of the MU. The TULRA should also be amended to adopt a punishment clause for the violation of the duty of fair representation.