부당노동행위 구제에 있어서‘계속하는 행위’의 판단- 대법원 2025. 4. 3. 선고 2023두41864, 2023두41871(병합) 판결을 중심으로 -

Article 82, Paragraph 2 of the Trade Union and Labor Relations Adjustment Act (TULRAA) has historically been treated as merely a procedural provision and thus not a core issue in discussions of the "unfair labor practices system." However, when viewed in relation to the purpose and intent of the "remedy system for unfair labor practices" by the Labor Relations Commission, it holds significant meaning. This is because the interpretation and judgment of TULRAA Article 82, Paragraph 2 are a key point related to the essence of the "remedy system for unfair labor practices" (whether a remedy is granted and its scope). Considering this, the interpretation and judgment of the meaning of 'continuous acts' as stipulated in TULRAA Article 82, Paragraph 2 and the so-called 'statutory period of exclusion (3 months)' for the right to apply for a remedy for unfair labor practices are matters that contain a complex variety of issues and can have a significant impact on remedies for employees or trade unions, as well as on the order of labor-management relations. The subject judgment is being evaluated as having substantially expanded the scope of rights relief for workers and trade unions, as it included not only individual and one-time acts like performance evaluation or promotion failures but also the continuous and repeated wage disadvantages resulting from them as subjects for the Labor Relations Commission's judgment and remedy. It is significant in that it has both concretized and re-established the legal principles and criteria for judging ‘continuous acts’ that the Supreme Court has previously presented. However, a more specific review is needed on several points. This includes whether this interpretation and judgment by the Supreme Court align with the purpose and intent of the current TULRAA and its remedy system; whether it is a valid interpretation in light of the legislative regulations under the TULRAA and the Labor Relations Commission rules; whether this legal principle can effectively function as an appropriate means for the protection and relief of rights for workers and trade unions; whether it can contribute to the stability and legal certainty of labor-management relations; and whether it affects the interpretation and judgment of other labor-related laws. The concept of 'continuous acts' specified in TULRAA Article 82, Paragraph 2 should not be viewed as a normative concept introduced to expand the scope of the unfair labor practices system, but rather as a factual concept that the Labor Relations Commission uses as a subject for remedy. The purpose of a remedy for unfair labor practices is to seek a swift and appropriate remedy for the facts of the unfair labor practice, not to attempt a normative judgment on the acts committed by the employer and seek a remedy based on that. Therefore, when judging ‘continuous acts,’ it is a matter of course that the 3-month application period specified in TULRAA Article 82, Paragraph 2 must be complied with. It is not desirable to use the concept of continuous acts with the purpose of providing special consideration for specific circumstances. At the very least, this interpretation and judgment are desirable under the structure of the current TULRAA Article 82 and the unfair labor practices system. If continuous infringement by the employer remains a persistent issue, a legislative extension of the application period, similar to Japan's case, or a full transition to a purely remedial system through the Labor Relations Commission should be actively considered.