단체협약상 특별채용 조항의 법적 효력 - 대법원 2020. 8. 27. 선고 2016다248998 전원합의체 판결 -

Since collective agreements are the result of private autonomy concluded by trade unions and employers, their effectiveness must be respected. Since the employer has freedom of employment, he can enter into a collective agreement on preferential employment, and the effect on this part should not be easily denied. In particular, matters related to accident compensation are subject to collective agreements because they fall under working conditions, and preferential employment for bereaved persons of industrial accidents has the meaning of supplementing the limitations of accident compensation. If the contents of the collective agreement conflict with the public interest of equity of employment opportunity, an examination based on the principle of proportionality should be conducted. In a reality where the importance of the value of the process of recruitment is increasing, the importance of protecting legal interests must be affirmed, and the ratio of preferential employment must be strictly controlled to meet the requirements for substantiality. Exceptions to the principle of equality of opportunity can lead to reverse discrimination and should be developed in detail. In addition, it is necessary to examine whether it corresponds to discrimination based on social status. Since long-term workers and union members correspond to social status, preferential treatment should be judged according to strict standards, and industrial accident workers do not correspond to social status, so preferential treatment should be judged according to relaxed standards. This is because the equity of employment opportunity can be practically achieved through special consideration for the socially disadvantaged. In light of the status of the union incorporated to have equal bargaining power with employers, the union gained special employment provisions by exercising its bargaining power, so denying the effect of preferential employment itself could jeopardize its existence. Comparative legal uniqueness is not decisive criteria that determine the effectiveness of the special provisions for the bereaved of industrial accidents, and should be understood as an inevitable measure prepared by labor and management, facing the high mortality rate from industrial accidents. Considering that youth unemployment is serious and the importance of the value of employment opportunity increases, the preferential employment clause is invalid against social order because the balance between protection and infringement laws is lost. In light of the need to protect non-union members and the purpose of the preferential employment clause for the bereaved of industrial accidents for the protection of the socially disadvantaged, the effect of the preferential employment clause for the bereaved of industrial accidents should also be extended to non-union members.