노동조합 및 노동관계조정법상 공정대표의무에 관한 연구

Recently, various legal issues surrounding the duty of fair representation have been reviewed. The first concerns the scope of obligations borne by employers due to their duty of fair representation, which should be regarded as an essential content of the bargaining channel unification system, one that conforms to the basic principle of agreement autonomy, rather than being regarded as having been created by the Trade Union and Labor Relations Adjustment Act. It was surmised that when a collective agreement is reached with the bargaining representative union, the employer should implement that as agreed. Alternatively, in a case where concrete contents of the collective agreement have not been fixed, the employer’s discretionary power should be acknowledged, unless it infringes the essential content of the agreement or the employer has the intention to discriminate against minority trade unions. That is, it was verified that the scope of the duty that must be actively borne by the employer in bargaining with the representative union should be limited just to cases where passive implementation of the agreement supports the existence and maintenance of minority trade unions. Second concerns the employer as solely subject to the duty of fair representation. This duty is imposed on the bargaining representative union and the employer under Article 33 of the Constitution and Article 29-4 of the Trade Union and Labor Relations Adjustment Act, respectively. So, minority trade unions can autonomously apply for relief from a violation of the duty of fair representation against an employer, even in cases where the bargaining representative union did not violate the duty of fair representation, and a tendency toward the attitude as such is seen from the court. It is thought that this process enables any issue to be resolved. Third concerns the effect of collective agreements in violation of the duty of fair representation. The duty of fair representation borne by the bargaining representative union and the employer applies to the process of collective bargaining, the contents of the collective agreement, and the process of implementation of the collective agreement, to which the principles of agreement autonomy should naturally apply. However, even in such cases, the bargaining representative union and the employer must not infringe on the rights of minority trade unions that cannot participate in bargaining, and as long as these rights are not infringed on, the effect of such a collective agreement is maintained. It should be ensured that the judicial effect cannot be immediately denied due to violation of the duty of fair representation. The Labor Relations Commission can decide on a correction order for a violation of the duty of fair representation, but the contents of the collective agreement that is the subject to the correction order should not be said to be invalid. Fourth concerns the effect of violation of the duty of fair representation and the scope of compensation for damages. Tort liability may arise due to the violation of the duty of fair representation. Discrimination against the minority trade union in violation of the duty of fair representation should involve intent or negligence as a requirement for tort. With regard to the scope of compensation for damages as tort liability, the focus is on non-pecuniary damages (solatium) rather than property damages. The reason for this is that discrimination in terms of the duty of fair representation is generally related to the guarantee of the labor force’s three primary rights, including the existence and maintenance of minority trade unions, any threat to which should be regarded as non-pecuniary damage. Finally, with regard to the distinction between the duty to maintain neutrality and the duty of fair representation, this was not explicitly stipulated under the previous Trade Union and Labor Relations Adjustment Act, leading to errors in the application or judgment of the two duties as they were confused. So, the duty to maintain neutrality was explicitly stipulated under Article 29-2 Paragraph 2 of the amended Trade Union and Labor Relations Adjustment Act to assert the intention of the legislator that the duty to maintain neutrality (or the duty not to discriminate) should be applied only to fractional bargaining. Arguing that a violation of either one is a violation of both is incorrect as the legal natures of the two duties now have distinct provisions under the Trade Union and Labor Relations Adjustment Act.