단체협약의 일방적 해지에 대한 부당노동행위 판단 - 일본의 법리를 중심으로

In the recent years, there has been an increase of labor disputes on unilateral termination by employers of collective agreement. From the perspective of legal principles, pursuant to Article 32 of Trade Union and National Labor Relations Act which set the duration of collective agreements, if an employer abides by the procedures of Article 32(3), it would be difficult to raise any legal issues against a unilateral termination by employer. Under the current law Article 33(2), if an employer abides by the legal procedures set out in a collective agreement, which provides for automatic extension clause, the employer is entitled to a unilateral termination right in a collective agreement. In other words, when a unilateral termination right in collective agreement is recognized, the exercise of such termination right of collective agreement is construed as employer’s freedom. However, Article 32(3) of the same law stands within the fundamental framework of three basic labor rights ensured by Article 33(1) of the Constitution. Thus, even if the employer abides by the legal procedures of Article 32(3) in terminating any collective agreement, and if such termination would be a violation of three basic labor rights, such right should be limited. The Trade Union Law recognizes employer’s termination right of collective agreement, and employer’s exercise of such right should be recognized. However, employer’s right to terminate should be acknowledged only within the framework of its unison with laborer’s three basic labor rights. This paper desires to analyze cases and remedial orders of Labor Relations Commission in Japan, and attempts to gain significant insights in discussing the limits of employer’s termination right of collective agreements. In Japan, such limits a reestablished within the schemes of unfair labor practices. Japanese cases and some remedial orders of Labor Relations Commission provide that in certain cases, employer’s unilateral termination of collective agreement maybe governed by Article 7(especially, subparagraph 3 : “domination of or interference with the formation or operation of a trade union by workers”) of Trade Union Law of Japan. (1) At a time prior to or after termination notice of collective agreement, if the employer does not respond to any negotiations to enter into a new collective agreement, or (2) notwithstanding the employer’s response to negotiations prior to or after termination of collective agreement and provision of new proposals, if the employer merely enters into the negotiation in a cursory manner and does not participate in good-faith to stabilize labor-management relationship, then such fact or evaluation of such act leads to the conclusion that termination of collective agreement was an unfair labor practice.