단결권을 위협하는 직장폐쇄의 정당성 여부 - 직장폐쇄가 정당하게 개시됐더라도 대항적ㆍ방어적 성격을 잃고 근로자에게 심대한 타격을 주며 단결권까지 위태롭게 한다면 정당성을 상실한다.(대상판례: 서울고법 2013. 6. 28. 선고 2012누29310 판결 (부당해고구제재심판정취소)) -

The Seoul Appellate Court declared on June 28, 2013 that the lockout, which was designed to severely pressure the employees endangering even the right to organize, illegal, although it had been started legally. Although the right of workers to organize, bargain collectively and strike is guaranteed by the Constitution, there is no Constitutional provision recognizing the employers’ right to lockout. However, the Act on Trade Union and Labor Relations Adjustment enumerates the lockout as one of the “industrial action” carried out by the employer. According to the legal provision, the term “industrial action” means actions or counter-actions which obstruct the normal operation of a business, such as strikes, slow-down, lockouts, or other activities through which the parties to labor relations intend to achieve their claims(§2. No. 6 TULRAA). As a requirement for lockout of workplace, the Law stipulates that any employer may execute a lockout of the workplace only after its trade union commences industrial action(§46 (1) TULRAA). It means that a lockout must be “defensive.” An employer, who intends to organize a lockout, shall report it in advance to the Administrative Authorities and the Labor Relations Commission(§46 (2) TULRAA). The leading court decision was made on May 26, 2000. by the Supreme Court, which ruled out that an employer may lockout members of the union which is implementing acts of disruption, “when the employer is subjected to an extraordinary disadvantageous pressures.“ The court stated that although there is no provision in the Constitution, a defensive lockout is allowed in such an exceptional situation to restore the balance of power between the parties in the labor disputes. An employer may take this action in order to restore the balance of power, when he is placed in a significantly disadvantageous situation. As the effect of the lockout, the employer can temporarily refuse to accept the labor of employees and be exempt from the obligation to pay wages, according to the “theory of suspension.”The question is whether the employer can evict the employees from the premise, where the employees normally provide labor, in order to maximize the effect of lockout. The Supreme Court decision of August 13, 1991 declared that the employer can deliver the eviction order, although the sit-in strike is legal. The Supreme Court decision of March 29, 2007 ruled that the employees are entitled to reject the eviction order, when the lockout is not legally recognized. However, according to the Supreme Court decision of June 10, 2010, the employer is entitled to control the employees’ access to the company, when the lockout is recognized legal. The given case reflects the recent trend of industrial conflicts, where the employers make use of the “offensive” lockout in order to drive out members of labor union from the company. The employers’ abuse of lockouts is somewhat encouraged by court rulings that employer is entitled to order the employees legally occupying parts of the workplace to leave the premise as the effect of lockout. The theory of lockout was founded on the fundamental principle of equity and fairness in labor relations. It should be noted, however, that the “restauration of the balance of power” for which the lockout is allowed is not meant to enable employers to conduct a good fight in the industrial conflicts. The lockout is designed only to provide employers with relief by permitting to mitigate the extraordinary adverse pressures produced by the workers’ industrial action. An offensive lockout for the purpose of exerting economic pressures upon workers in order to induce an advantageous resolution of the dispute is not allowed.