교섭대표노조 결정 과정에서의 쟁점 - 1. 교섭창구단일화 절차 규정의 강행규범성, 2. 교섭창구단일화를 거치지 않고 단체협약을 체결한 경우 체결 노동조합의 지위-

Trade Union and Labor Relations Adjustment Act and its Enforcement Ordinance have rules concerning the single bargaining unit rule. Issues that have not been addressed upon legislation are arising as 3 years have passed since its enforcement. An important question among such issues is whether the signing union is regarded as the ‘bargaining representative union’ according to article 29-2 of Labor Union Act in case the employee has not undergone bargaining channel unification procedure as it believed ‘single union status’ of the labor union or for other reasons. And If it is accepted, whether newly established labor unions afterwards the collective agreement are restricted in the collective bargaining power for some period according to article 14-10 of Labor Union Act Enforcement Ordinance. It has close relation with the purpose of single bargaining unit rule and the compulsory nature of relative articles and should start with studying the relationship between the 1st and 2nd clause of article 29 of Labor Union Act. The relationship of the 1st and 2nd clause of article 29 of Labor Union Act should be understood as ‘Principles and Exceptions’, not ‘General and Special’ and once chosen the bargaining channel unification, which is an exceptional procedure, the following procedures should also be understood as compulsory. However, details of bargaining channel unification procedure should be left flexible to some extent according to the explicit and implicit agreement between the user and the labor union as collective bargaining power of the minority union or the user and the labor union’s autonomous right of collective bargaining does not lapse because of choosing bargaining channel unification procedure, which is exceptional. And as long as bargaining channel unification procedure is understood as ‘exceptional’, the effect of collective bargaining or collective agreement is not void in case the signing labor union has not undergone bargaining channel unification procedure. However, it is a separate question to accept such union as the representative union according to Labor Union Act and It should not be accepted. Practical issues surrounding single bargaining unit rule arise in many aspects beyond limited regulation. These limits in legislation should be addressed via constitutional interpretation of relating rules. Standpoints of fully considering the background and the purpose of single bargaining rule and respecting autonomous nature between the user and the labor union is much needed.