유니온 숍 협정과 부당해고, 부당노동행위 - 대법원 2019. 11. 28. 선고 2019두47377 판결을 중심으로 -

Abstract

Article 81, Paragraph 2 of the Trade Union And Labor Relations Adjustment Act stipulates compulsory membership provisions, such as the union shop agreement, as one of the unfair labor practices. However, union shop agreement entered into by a dominant trade union is considered to be valid as an exception. According to interpretation of the above clause, union shop agreement might apply to the act of a new employee who directly establishes a new trade union or joins another trade union without first joining and withdrawing from the dominant trade union. In this case the dispute was over the issue of whether the dismissal of a new employee based on the union shop agreement was an unfair dismissal or not, where the employee had joined another trade union without first joining and withdrawing from the dominant trade union. The trial court decided that the firing was not an unfair dismissal because the union shop agreement justified it. On the contrary, the appellate court decided that it was an unfair dismissal. The Supreme Court ruled that it was an unfair dismissal based on a limited interpretation where it was found that the union shop agreement can only be applied to a new employee who has not joined any trade union. It appears th Supreme Court’s decision is rational based on the reasons belows. 1) It is a global trend to limit the effectiveness of the union shop agreement and it also corresponds to the development of the history of trade unions. 2) It is necessary to protect employee’s right to work and right to choose the traded union by controlling employer’s dismissal. 3) Employer’s positive right to organize is guaranteed by the Constitution and union’s positive right to organize should be treated equally among plural trade unions. I hope that based on this ruling, the meaning of the right to unite, especially passive right to organize, will be contemplated and debated deeply. It is necessary, in my view, to regulate the union shop agreement as an unfair labor practice altogether, because passive right to organize should be protected equally to the positive right to organize.