노동조합의 업무복귀 의사표시와 직장폐쇄 지속의 정당성 - 대법원 2017. 4. 7 선고 2013다101425 판결을 중심으로 -

Abstract

A trade union that is undergoing a strike may end the strike or declare the intent to return to work after the employer closes the workplace(Lock out). If the union’s declaration of intent is genuine, the employer’s Lock out will lose legitimacy. The reason for the legitimacy of Lock out is that, in particular, the defensive requirement is lost. However, in situations where the conflict between the trade union and the employer is very intense, it is not correct to force the employer to trust the trade union’s declaration of intent to return to work. An important case to refer to in this regard is the Sangsin Brake Co. case.BR In the case of Sangsin Brake Co., the Supreme Court of Korea ruled that the declaration of intent to return to work of trade union members should be expressed collectively and objectively. In addition, the Court judged that the trade union’s declaration of intent should be expressed through a highly reliable official document, and if it is made through procedures such as submitting a notification of withdrawal of disputes and confirmation by the administrative agency, the employer should trust it. However, it is difficult to accept that the case presents a general standard that can confirm the authenticity of the trade union’s declaration of intent to return to work.BR When a trade union expresses its intention to return to work, it must be trusted the truth unless there is a special circumstance where it can know in advance that the intention is not true. If the employer trusts the intention, but the intention is false, the trade union must be responsible for it. It is not always a appropriate explanation to see that a third party has to confirm or guarantee to verify the authenticity of the intention. Some scholars argue that trade unions must actually stop the dispute and return to work. If the union members actually return to work but the employer keeps the Lock out, it is possible to examine whether the defense requirement from that time has been dropped. Even if the trade union stops the dispute and tries to return to work, it may not be possible to do so. The Supreme Court of Korea has the same view in principle. The Court ruled that a trade union’s intention to return to work should be trusted if it is not accompanied by the actions of the opposite trade union and there are no special circumstances that only doubt the truth of the intention. The effective point is from when the intention is delivered to the employer. And the requirement for defensive protection of Lock out will be dropped from that time. The position of the Supreme Court of Korea can be confirmed in the similar cases Valeo Electrical Systems Korea Ltd. and Yoosung Enterprise Co.