단체협약 해지통고의 법적 쟁점

Legal Issue on Notice of Termination of Collective Agreement Roh, Sang-heon This paper considers three issues as to Article 32 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) which provides for termination of a collective agreement and conclusion of a new agreement following the expiration of the effective term of the existing agreement. First, whether the legislative provision, which limits the effect of a collective agreement to two years and allows unilateral termination of the agreement automatically extended, corresponds to Article 33 of the Constitution that guarantees three labor rights and conforms with the intent of the Trade Union Act. The aforementioned two-year limit prescribed under the Trade Union Act can be said to limit collective agreements in and of itself. However, there is no strong opposition to the effective term being applied to collective agreements based on the inherent notion that changing economic situations may not be fully reflected in collective agreements where the effective term is long and termination is difficult. Furthermore, as to the double-sidedness of Article 32(3) of the Trade Union Act which primarily allows automatic extension so that a new collective agreement is formed after the existing agreement expires but also guarantees a contracting party to terminate even if there were no special reason, the legislative intent can be viewed positively as preventing the effective term from being unfairly prolonged, and thereby promoting a platform for fair and balanced negotiations between labor and management. Second, whether the period of collective agreement, which changed to an indefinite term following the expiration of the effective term subject to an automatic extension clause, can be limited to two years. Given that the automatic extension clause is a prerequisite for negotiating anew collective agreement, Article 32(2) of the Trade Union Act cannot be deemed applicable to the indefinite term collective agreement. Third, whether a collective agreement party’s right to terminate can be restricted. Where the contracting parties mutually agreed on continuation of the collective agreement, such right to terminate should be considered as being restricted. Above all, there is no compelling reason to consider the proviso of Article 32(3) of the Trade Union Act which uses the phrase “can be terminated” as a non-mandatory provision. Collaborative labor-management relationship building is the essence of collective agreements, and collective agreements which undermine good labor-management relations should be terminated based on rational grounds.