교섭단위 분리 제도의 법적 쟁점

Abstract

Trade Union and Labor Relations Adjustment Act designates one business or one place of business as a bargaining unit, and, in principle, the unit determines a representative bargaining trade union of their accord, referred to as procedures for simplification of bargaining windows. This unified trade union bargains and makes a collective agreement. However, Article 29.3.2 exceptionally allows a division of the bargaining units and to negotiate separately with each individual union. As it is a significant exception to the simplification of bargaining windows, it should be limited to conditions in which the enforcement of a statutory bargaining unit would make it difficult to expect a substantial collective autonomy.BR Labor Relations Commission(LRC) has a legal authority to decide a division of the bargaining units at its discretion, and the concerned parties can apply for review on its decision only when it is inconsistent with any Act or subordinate statue or ultra vires. Therefore, LRC should carefully decide whether to divide a bargaining unit, taking into consideration all reasonable grounds, and once it is determined, it needs to be fully respected.BR However, several recent cases interpreted the necessity to divide a bargaining unit in the narrow sense, so that judged LRC’s decision is inconsistent with the laws or ultra vires. In cases, there is a legitimate concern in their strict interpretation in allowing for the division of bargaining unit, which is an exception to the simplification of bargaining windows. However, in other aspect, it can excessively restrict the discretion of LRC to decide. Through clarifying factors and their contents in deciding the need for a division, the Act should present predictable criteria to the concerned parties, and impose judicial control over decisions of LRC, only which deviate from this requirement.