공정대표의무의 법적 구조와 적용상 쟁점에 관한 소고

The introduction of the multiple union system and the single bargaining channel system in 2011 brought about a significant transformation in the collective bargaining structure of labor unions in Korea. Alongside these institutional reforms, both the representative labor union and the employer became subject to the duty of fair representation. This duty serves as a core institutional mechanism that upholds the effectiveness of the constitutional rights to organize and to bargain collectively, while also providing a foundation for the legitimacy of the single bargaining channel system. However, the current Trade Union and Labor Relations Adjustment Act only defines the concept and subjects of the duty of fair representation, while remaining legislatively insufficient regarding its specific content. In particular, interpretative standards for major issues—such as the scope of those who may file a claim for violation of this duty, the commencement point of the exclusion period, the legal effect of procedural defects, the criteria for determining discrimination, and the means of ensuring the effectiveness of corrective orders—have yet to be clearly established. Accordingly, this paper establishes a three-stage analytical framework for interpreting the duty of fair representation, consisting of: (1) the determination of procedural requirements, (2) the substantive judgment, and (3) the assessment of compliance. Each stage is examined with a focus on practical application and judicial precedents. In particular, the paper presents interpretative arguments on issues such as the standing of individual union members to file claims, the interpretation of filing deadlines in cases of continuing discriminatory acts, the availability of remedies in the case of procedural violations, the private law effects of collective agreements concluded in breach of the duty, and the scope of application of the duty of fair representation. Legislative reforms are also proposed to address institutional shortcomings. In conclusion, the duty of fair representation must function as a key mechanism that realizes not only formal fairness in the bargaining system but also substantive equality and procedural democracy. To that end, it is urgently necessary to establish concrete interpretative standards and to improve the relevant legal framework.