절차적 공정대표의무 - 대법원 2025. 7. 18. 선고 2023두61370 판결을 중심으로 -

The Supreme Court Decision 2017DU263192 and the Supreme Court Desion 2019Da262582 explicitly acknowledged the procedural duty of fair representation as the content of the duty of fair representation and presented the criteria for judgment, while acknowledging liability for damages for violating the procedural duty of fair representation. However, the above decisions limited the scope of procedural duty of fair representation related to collective bargaining to ‘procedures for providing information and collecting opinions on important matters that lead to deviation or abuse of discretionary rights’. As a result, the usual information provision and opinion collection procedures and approval vote procedures for the provisional agreement were excluded from the scope of procedural duty of fair representation. Since then, the rulings have been criticized by many academic theories that the scope of procedural duty of fair representation has been excessively reduced, mainly in relation to the collective agreement approval voting process. Regarding the implementation process of collective agreements, the Decision 2023Du61370 sentenced July 18, 2023 argued that the composition of a reward and punishment committee in the disciplinary process of minority labor union members violated the procedural duty of fair representation by appointing three members for the employees of the committee only as bargaining representative labor union members. The Decision 2023Du61370 ruled that the above composition of a reward and punishment committee violates the procedural duty of fair representation on the grounds that it constituted discrimination in the disciplinary procedure set by the collective agreement and had no reasonable grounds. In addition, it was judged that disciplinary action was invalid as a legal effect against it. The Decision 2023Du61370 is significant in that it expands the scope of procedural duty of fair representation compared to the Supreme Court Decision 2017DU263192 and the Decision 2019Da262582 and admits that it is not just illegal but invalid as a legal effect. The simplification of bargaining windows system has been constantly embroiled in controversy over its unconstitutionality since its introduction. Despite the strong nature of essentially restricting the three labor rights, such as the collective bargaining rights of minority labor unions and their members, the Constitutional Court declared them constitutional twice, citing that there are mechanisms to ensure constitutionality, such as the duty of fair representation. However some Supreme Court rulings, including the Supreme Court Decision 2017DU263192 and the Decision 2019Da262582, limitedly interpreted the scope of fair representation obligation, preventing the duty of fair representation from functioning properly as a device to ensure the constitutionality of the simplification of bargaining windows. In the end, the Constitutional Court was handing over the responsibility for the constitutional operation of the single bargaining window system to the Supreme Court and the Supreme Court to the Constitutional Court. In this situation, the Decision 2023Du61370 expands the scope of the procedural duty of fair representation and invalidates the legal effect of violating the duty, which can be evaluated as a stepping stone for the duty of fair representation to function properly as a device to ensure the constitutionality of the single bargaining window system. As in the Decision 2023Du61370, a reasonable interpretation of the courts is required so that the devices that ensure the constitutionality of the simplification of bargaining windows system, such as the duty of fair representation and the separation of bargaining units, function properly according to its purpose. If such an interpretation is not properly made by the courts, the Constitutional Court should declare the simplification of bargaining windows system itself unconstitutional, paving the way for the plural union system to settle properly.