회사분할 시 기존 교섭대표노조의 지위 판단 - 서울남부지방법원 2021. 9. 16. 2021카합20326 결정 검토를 중심으로 -

The Trade Union and Labor Relations Adjustment Act[hereinafter referred to as “Trade Union Act”] has allowed the plural trade unions within one place of business since July 01, 2011 and newly established and operated the provision about the simplification of bargaining window on the basis of 1 bargaining per company at the same time. Article 29(2) of the [Trade Union Act] provides that the bargaining representative trade union who was determined through the simplification of bargaining window shall have the authority to bargain and make a collective agreement with the employer for the trade union and its members. Article 29(3) of the [Trade Union Act] provides that the bargaining unit shall be ‘One business, or One place of business’ in principle. Meanwhile, the [Trade Union Act] establishes the bargaining unit division system that the Labor Relations Commission may decide to divide a bargaining unit or to unite separated bargaining units, at the request of both parties to labor relations or either one party in consideration of a wide difference in working conditions, type of employment, customary practices of bargaining in one business or one place of business. In the academic world, if the Labor Relations Commission decides to divide the bargaining unit after determining the bargaining representative trade union, the opinions on who becomes a bargaining representative for the separated bargaining units are conflicting. However, if the bargaining unit is divided due to split of a company, there has not been any special discussionon the status of the existing bargaining representative trade union except the opinion of Professor Kwon Oh Sung, saying that it is reasonable to interpret that the status of the existing bargaining representative trade union maintains even though the number of members of the trade union is disproportionately changed due to split of the company. The decision on Case No. 2021Kahab20326 (Decision on Subject) by Seoul Southern District Court on Sep. 16, 2021 is meaningful in that it is the first decision having clarified the issues such as ‘influence on decision on the bargaining unit’ and ‘influence on bargaining representation right of a bargaining representative trade union’. However, it is unfair to immediately conclude that under the circumstance that the decision on subject is lack of the serious consideration about the difference between the bargaining unit division system under the [Trade Union Act] and the result of dividing the bargaining unit due to split of a company under the Commercial Act, the result of dividing the bargaining unit due to unilateral split of a company by an employer will result in the deprivation of the representation bargaining rights of the existing bargaining representative trade union. After reviewing the decision on subject and related verdicts and by classifying cases into a case where the bargaining unit is divided due to split of a company and a case where the bargaining unit is divided due to the decision by the Labor Relations Commission, the purpose of this study is to express my views about the judgment onthe status of the existing bargainingrepresentative trade union and to present each ground thereof.