조직형태변경과 산별노조의 하부조직

Although the industrial trade unionism in Korea has been institutionally settled to some extent, the traditional enterprise level unionism still practically remains. Under these circumstances, the conclusion of the full bench decision of the Supreme Court of Korea, sentenced on 19. Feb. 2016, which broadly recognize the subject of the resolution of organizational change by the subordinate organization of industrial union, has important significance that can have a great influence on the industrial relations as well as on the organization and operation of industrial unions in Korea. This decision goes beyond the boundaries of the previous common view which has considered only ‘subordinate organization similar to enterprise union’ can be the subject of the resolution of structural change in subordinate organization of industrial union. The decision also accepts subordinate organizations, including chapters of industrial union, which amount to unincorporated association as the subject of structural change resolution, even if the organizations do not have independent capability for collective bargaining and concluding collective agreement This ruling leads to an unfair result as it substantially grants equal position to the right to organize for industrial unions and the freedom of association of ‘unincorporated organizations analogous to enterprise trade unions’, giving priority to civil law regarding structural change over the distinct characteristics of labor law. It is hard to agree on such conclusion since it is reasonable to limit the subject of structural change resolution to ‘labor union’ or at least to organizations similar to enterprise trade union, considering the history and the purpose of legislation, the wordings and the position of the provision, the legal effect, and the change in related system such as permission of plural trade unionism. The decision can be criticized that it also does not mention about ‘substantial identity’ before and after structural changes which is required for the structural changes to take effect, and lets the organizations without independent capability for collective bargaining and concluding collective agreement to succeed ‘collective agreement’ through structural changes, which is hard to understand. Furthermore, even if such conclusion is to be accepted, the decision has flaws since it does not point out specific indications or requirements for an organization to be recognized as “unincorporated association analogous to enterprise trade union.” This paper tries to suggest these specific requirements on the basis that the Supreme Court’s decision must be narrowly interpreted since it is an exception to the principle that a trade union cannot exist within another trade union.