Omission of Address

Representative Director A, B

Attorney Byung, Jung-chul, et al., Counsel for the defendant

Litigation Performers;

Address omitted

2. C

Address omitted

3. D 3 -

The address omitted.

4. E.

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5. F;

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6. G;

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7. H;

Address omitted

8. I

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9. J

The address omitted.

10. K;

The address omitted.

11. L;

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2. The costs of the lawsuit shall be borne by the Plaintiff, including the cost of participation.

The following facts are not disputed between the parties, or found in Gap evidence 1-1, 2-1, 2-1, 2-3, Gap evidence 3-2, Gap evidence 9-2, Gap evidence 24-1, 2-2, Eul evidence 38-3, 6, 8, and Eul evidence 56 in full view of the purport of the whole pleadings.

A. The plaintiff employs 1, 321 full-time workers and operates vehicle parts, factory machinery, and other manufacturing business (the plaintiff changed the trade name from A to A-1 corporation on June 3, 2005. The plaintiff changed the trade name from A to B-1 corporation on June 3, 2005. The plaintiff did not distinguish the name according to the time, and all the plaintiff company's company's company's company's company's company's company). The intervenor et al. are those who worked in the above company.

B. The Plaintiff Company issued a 250 leave order for a total of 10 persons including 100 persons on April 1, 2004, 100 persons on April 6, 200, and 50 persons on the 9th of the same month, and 250 persons on the 20th of the same month including 50 participants, etc. (hereinafter “the instant leave of absence”).

C. Accordingly, the Intervenor et al. issued a remedy order to the Regional Labor Relations Commission to the effect that: (a) the Intervenor et al. applied the instant temporary closure leave to the 2004 Regional Labor Relations Commission; (b) the Intervenor et al. applied for unfair temporary closure leave to the 66, 67, 75, 79, 83, and 93; and (c) the said Regional Labor Relations Commission recognized the said Intervenor et al. as the unfair temporary closure leave on August 31, 2004; and (c) the said Intervenor et al. reinstated the said Intervenor et al to the former position; and (d) the amount equivalent to the wages that

D. On September 23, 2004, the Plaintiff Company appealed and filed an application for reexamination with the National Labor Relations Commission as to September 23, 2004, but the National Labor Relations Commission dismissed the application for reexamination of the Plaintiff Company on May 16, 2005.

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff company's assertion

(1) The instant temporary closure leave was an inevitable measure taken by the Plaintiff Company due to its managerial needs in the situation where the Plaintiff Company continued to have been in a hostile, and efforts to maintain objectivity and fairness as much as possible by selecting a business department, etc. that is expected to cause idle human resources, taking into account the number of continuous service years, age, family members, etc. of the employees engaged in the instant temporary closure leave. Furthermore, the instant temporary closure leave was taken as a means of efforts to avoid layoff, and it was paid to the employees subject to the instant temporary closure leave 70 percent of average wages during the period of temporary closure. Accordingly, the instant temporary closure leave is not substantially disadvantageous to the employees since it was paid 70 percent of average wages during the period of temporary closure. Accordingly, after agreement with the president of the Trade Union and Labor Relations Division, it was ratified by the National Trade Union.

(2) Therefore, even though the Plaintiff Company’s temporary leave was justifiable, the instant decision on the review was unlawful.

(b) Facts of recognition;

The following facts are not disputed between the parties, or are acknowledged in full view of the purport of Gap evidence 1-1, Eul evidence 2-1 through 4, Eul evidence 9-1 through 4, 6 through 8, Gap evidence 14-1 through 5, Gap evidence 9-2, Gap evidence 14-6, Gap evidence 16-2, Gap evidence 17-2 through 9, Gap evidence 20-1, Eul evidence 21-1 through 3, Eul evidence 38-3, Eul evidence 3, 7 through 9, Eul evidence 11 through 57, Eul evidence 5 through 57, Eul evidence 5-1 through 5-5, Eul's evidence 58-1 and 5-5.

(1) From around 197 to around 1997 due to frequent labor-management ties, management rush management, etc., the Plaintiff Company was finally in bankruptcy on November 30, 1998. After the company reorganization procedure was commenced on April 23, 1999, all 5 and 60 billion won were discharged, but its business operator reached 7.7 billion won in 2002. Accordingly, the Plaintiff Company submitted a M& A-related agreement on March 13, 2003 while maintaining the life expectancy, and was decided to complete the company reorganization procedure by taking office by a new representative director on November 15, 1998.

(2) In 2003, the Plaintiff Company had gone through difficulties, such as the labor union’s participation in the labor union, due to the failure to negotiate with the labor union. Accordingly, the Plaintiff Company, on the ground of business normalization in 2004, had a 2004.

On February 16, 200, the Labor Union Branch A branch of △△△△ Branch (hereinafter referred to as the "Labor Union Branch") sent a public door, i.e., ‘request for consultation on restructuring', i.e., ‘request for consultation on restructuring', i.e., ‘request for consultation on restructuring', ii) on March 24, 200. On March 8, 200, the Labor Union Branch made it impossible to negotiate a wage organization agreement according to the decision of the branch because the national trade union is a single trade union, and on March 17, 200, the Labor Union Branch requested the Plaintiff to withdraw from the labor organization.

(3) After that, on March 24, 2004, the Plaintiff Company sent to the Labor Union Branch a public notice demanding negotiations for the normalization of business, such as early conclusion of the wage organization agreement, structural adjustment consultation, etc. On March 26, 200, the Plaintiff Company conducted the first collective bargaining at around 00: 15:0, and then on the same day, around 16:30, the Plaintiff Company announced that the temporary leave will be implemented as of April 1 of the same year for 100 persons on the list of the first beneficiaries of the temporary leave of this case.

(4) On March 31, 2004, with regard to the restructuring consultation in 2004, the Plaintiff Company presented as a proposal for negotiations the contents of not layoff, payment of 300,000 won, performance-based bonus payment, etc. on the basis that it would not be dismissed, and the labor union rejected it, and on April 2, 2004, 100 of the second list of the temporary closure workers of this case (the implementation of temporary closure leave on April 6, 2004), and distributed publicity materials containing the contents of voluntary retirement recruitment to the site.

(5) When the special organization negotiation implemented on April 6, 2004 and the 7th of the same month without any particular outcome, the Plaintiff Company announced 50 persons on the third day of the leave of absence of this case on the 8th of the same month (the leave of absence on the 9th of the same month).

(c) Determination.

(1) The nature of the instant temporary closure leave

Although the Plaintiff Company took the form of a leave of absence under Article 45(1) of the Labor Standards Act to the Intervenor, etc., the above provision merely requires the Company to pay not less than 70/100 of average wages to the Intervenor, etc. for reasons attributable to the employer, for example, if the Plaintiff shuts down a business due to financial difficulties, lack of materials, lack of facilities at a place of business, business difficulties, etc., and all business suspension measures are lawful and legitimate if the Company pays the above business suspension allowances. The above provision does not include any provision.

Therefore, as seen earlier in the facts of recognition, the following facts were revealed: (a) the process of the instant temporary closure leave; (b) Gap evidence 8-1 through 3; (c) Gap evidence 14-5; (d) Eul evidence 16-2; and (e) Eul evidence 51-1 and 2; (c) the plaintiff company sent a proposal letter to consult about the old mediation to the Trade Union and Labor Relations Council on March 11, 2004; and (d) the plaintiff company continued consultation on the instant temporary closure for the reason of management; (e) the plaintiff company prepared a written report of dismissal plan for the reason of management on April 19, 2004; and (e) received it to the local labor office of △△△; and (e) whether the temporary closure of the instant case was legitimate or not, and therefore, (e) whether the temporary closure of the instant case was lawful or not, can be determined based on the legitimate requirements of the temporary layoff.

(2) Whether the requirements for layoff are met

(A) Requirements for layoffs

According to Article 31(1) through (3) of the Labor Standards Act, where an employer intends to dismiss a worker due to managerial reasons, there must be urgent managerial necessity, and efforts to avoid dismissal shall be made in accordance with reasonable and fair standards, the relevant person shall be selected, and the methods and criteria for avoiding dismissal shall be notified to the labor union or the representative of the worker 60 days prior to the date of dismissal, and the method and criteria for dismissal shall be notified 60 days prior to the date of dismissal to the labor union or the representative of the worker.

On the other hand, Article 37 of the collective agreement between the plaintiff company and the National Trade Union concluded in 2003 provides that "1. Company shall not be subject to reorganization (replacement) without agreement with the labor union; "2. Company shall notify the union 60 days before it is intended to adjust the number of employees due to corporate reduction, expansion or inevitable reasons; and the applicant shall be given priority to the labor-management agreement with the union for the method of adjustment of the number of employees"; thus, it imposes more strict restrictions on the requirements by allowing the labor-management agreement of the labor-management agreement (Article 1 of the collective agreement).

◇노동조합만이 원고 회사의 유일한 교섭노동단체임을 인정하고 있다 ) .

(B) Whether there is a business necessity, and whether there was a efforts to avoid dismissal (temporary leave)

The urgent managerial necessity, among the requirements for layoff, is not necessarily limited to the case of avoiding the bankruptcy of a company, and includes the case where the reduction of the number of employees is required to cope with the future crisis, but such reduction of the number of employees shall be recognized as reasonable objectively and objectively, and efforts to avoid dismissal shall be made to minimize the scope of employees’ dismissal (see, e.g., Supreme Court Decisions 2001Da29452, Jul. 9, 2002; 2003Du1339, Jan. 15, 2004).

이 사건에 관하여 보건대 , 갑 제4 , 6호증 , 갑 제8호증의 2 , 갑 제11호증 의 1 , 2 , 을 제10 , 11호증 , 을 제16호증의 1 내지 5 , 을 제20호증의 1 내지 17 , 을 제21 호증의 1 내지 79 , 을 22호증의 1 내지 3 , 을 제23호증 , 을 제27호증의 1 내지 10 , 을 제36호증 , 을 제40 내지 42호증 , 을 제53호증 , 을 제69호증의 1 , 2의 각 기재에 변론 전 체의 취지를 종합하면 , 원고 회사의 ① 연도별 매출액과 영업이익은 각각 2002년도에 2 , 157억원과 777억원 ( ▼은 적자 표시 , 이하 같다 ) , 2003년도에 2 , 232억원과 748억원인 사실 , ② 2004년도 1분기 매출액의 경우 518억 4 , 200만원으로 전년 동기 대비 57억 6 , 200만원이 증가하였고 , 영업이익의 경우 ▼4억 4 , 700만원으로 전년 동기 대비 20억 5 , 700만원이 증가하였으며 , 경상이익은 5억 7 , 900만원으로 전년 동기 대비 50억 300만 원이 증가한 사실 , ③ 2004년 상반기 매출은 전년 동기 대비 10 . 6 % 가 늘어난 1 , 148억원 이고 , 영업이익은 60억원 적자에서 24억원 흑자로 , 경상이익도 82억원 적자에서 51억원 흑자로 전환된 사실 , 특히 2004년 2분기는 1분기와 비교할 때 매출액은 518억원에서 111억원 증가한 629억원 ( 21 . 43 % 상승 ) 을 달성하였고 , 영업이익은 4억원 적자에서 28억 원 흑자로 전환되었으며 , 경상이익은 6억원에서 45억원으로 대폭 증가한 사실 , ④ 제품 판매 실적의 경우에도 2003년 차량부품 1 , 212억원 , 공작기계 175억원 , 주물 195억원 , 기 타 648억원 등 합계 약 2 , 231억원이고 , 2004년 차량부품 1 , 420억원 , 공작기계 387억원 , 주물 244억원 , 기타 561억원 , 합계 약 2 , 637억원으로 약 400억원 정도가 증가하였으며 , 한편 , 원고 회사는 2004년도에도 연장근로가 거의 모든 부서와 반에 걸쳐 행해졌으며 , 특히 특사사업본부 , 차량사업본부 ( 차축조립 3반 ) , 주물사업본부 등의 경우 아래 표 기재 와 같이 연장근로가 행해진 사실을 인정할 수 있다 .

As seen above, the Plaintiff at the time when the Plaintiff Company took temporary leave of this case

A person shall be appointed.

From 2003 to 2004, the company had already been converted operating income into black in the first quarter and second quarter. Even when comparing the first quarter in 2004, the operating income was converted from 400 million won to 2.8 billion won, and the ordinary income was changed from 60 million won to 4.5 billion won, and there was a full change in the management status, such as large-scale increase in the ordinary income. Meanwhile, even after the suspension of business in this case, it is difficult to recognize that the company made every effort to avoid the suspension of business in this case by deeming the person subject to the suspension of business in this case as idle human resources, and it is also difficult to recognize that the company made every effort to avoid dismissal (the suspension of business).

(C) As to the Plaintiff Company’s assertion that the instant leave of absence is justified as it is by a labor-management agreement.

On March 11, 2004, the Plaintiff Company had already notified the Trade Union Branch of the plan for layoff and had it executed the instant temporary closure on behalf of the Trade Union. On April 27, 2004, the Plaintiff Company concluded a collective negotiation with the Trade Union Branch of the Trade Union in order to promote the normal operation of the Trade Union. In addition, on the grounds that the majority of the entire union members were approved through the pro-con voting of the Trade Union members and there was ratification of the National Trade Union, such agreement has the nature of a collective agreement, and thus, the instant temporary closure is governed by the collective agreement, and thus its effect should be recognized, or at least the instant temporary closure leave should be recognized as legitimate because it is based on the labor-management agreement.

Therefore, the facts that the plaintiff company notifies the Trade Union 14 in the form of a public inquiry on the request for restructuring from March 11, 2004 are as mentioned above. Gap evidence 14-11, Gap evidence 17-10, Gap evidence 18-1, 2-1, 31-2, Eul evidence 74-1, 31-2, and Eul evidence 74 are as follows. The plaintiff company and the Trade Union 2-1-2-3-6-3-6-6-6-6-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-77-7-7-7-77-7-77-77-77-7-77-7-7-7-7-7-7-7-7-7-7-7-7-7-7

However, it is reasonable to view the contents of the above agreement as being related to the leave of absence in this case, and it is difficult to view the contents of the above agreement as being inconsistent with the national labor union's consent on the leave of absence in this case, and further, the plaintiff company's assertion is not reasonable because it is not reasonable to regard the business suspension in this case's agreement as being inconsistent with the national labor union's consent on the leave of absence in this case, with the fact that the business suspension in this case's name was affixed to the National Labor Union's chairperson's seal on the leave of absence in this case's name at the expense when the last time of the leave of absence in this case was 1 year.

(D) Sub-decisions

As a result, the Plaintiff Company’s instant temporary retirement does not meet the urgent managerial necessity, the substantive requirements of efforts to avoid dismissal (temporary retirement) and procedural requirements, and thus, it was unlawful without further examining the remaining requirements.

3. Conclusion

Therefore, on different premise, the claim of this case by the plaintiff company seeking the revocation of the judgment of the retrial of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judgment of the Supreme Court

Judges Hong Sung-chul