부당노동행위에 있어 지배·개입 의사에 관한 일고

Some Considerations on Intention of Domination and Intervention in Unfair Labor Practice

2011. 7. 1. Since the establishment of plural unions is legally permitted, unfair labor practices related to domination or intervention have been widening from the establishment of labor unions to the stage of unification of bargaining windows, and the stage of collective bargaining and collective agreement. According to the white paper on employment labor published in 2017, an average of 9.2 percent of cases in which a relief order was filed against the Labor Relations Commission for unfair labor practices during the past three years. It is difficult to deny that the relief rate is too low, although there may be a tendency for the relief application to be overshadowed by the intensified conflicts between labor unions and employers. The unfair labor practice of domination or intervention prescribed in Article 81 (4) of the Labor Union and Labor Relations Act has had a conflict of view over the necessity of the intention domination or intervention and the burden of proof thereof. In Korea, judicial precedent is in the position that intention of dominance or intervention are necessary, and the doctrine is in conflict with the position that a intention is necessary and the position that it is not. However, there is no big difference in the opinion that the case does not require the intention because the indirect fact actually presumes the intention of domination or intervention and recognizes the unfair labor practice by domination or intervention unless there is no disprove of the employer. The distribution of the burden of proof is the key to deciding whether or not to cite an unfair labor practice relief application by domination or intervention. The judicial precedent presumes the intention of dominance or intervention through indirect evidence that dominance or intervention exists, and is given the opportunity to be fined through proof of the user s objection. The distribution structure of such proofs is considered to be very appropriate. Under the multiple union system, the cases where employer violate the right to organize workers through company dominated union are increasing. It is time to strengthen the capacity of the labor relations committee as well as the courts, and to collect indirect evidence from workers and labor unions.