사용자, 사용자단체와 교섭창구 단일화 및 공정대표의무 - 대법원 2016두42654 판결과 대법원 2016두41248 판결을 중심으로

The Korean Supreme Court recently rendered two decisions(Supreme Court Decisions 2016du41248 and 2016du42654). These decisions dealt with the issue of whether the execution of a collective agreement made through multi-employer bargaining with a supra-enterprise trade union under the procedure for simplification of bargaining windows violates the duties of fair representation or not. The Supreme Court ruled as follows: 1) the duties of fair representation are violated if the employer’s association distributes welfare fund only to a representative bargaining trade union; and 2) in such case, the labor relations commission has the right to issue a correction order not only to an employer’s association but also to the employer. This article comments on the validity and adequacy of the above decisions based on a review of the legal principles underlying the simplification of bargaining windows and duties of fair representation. The main points in this article are: 1) in addition to the representative bargaining trade union, the employer also shoulders the duties of fair representation to eliminate or correct irrational discriminations on an active basis; 2) in a case where the employer’s association enters into a collective agreement through multi-employer bargaining with a supra-enterprise trade union under the procedure for simplification of bargaining windows, not only the employer’s association but also the employer will be bound to the duties of fair representation and subject to a correction order; and 3) when an employer’s association engages in multi-employer bargaining with a supra-enterprise trade union, the procedure for simplification of bargaining windows is not compulsory. However, in my opinion, if the employer’s association enters into a collective agreement through multi-employer bargaining with a supra-enterprise trade union under the procedure for simplification of bargaining windows on a voluntary basis, the procedure for simplification of bargaining windows is valid, and therefore the duties of fair representation should be held to be applicable to such procedure.