Hyundai Eb&S)

2. On October 14, 2009, the Central Labor Relations Commission revoked the decision of retrial rendered on October 14, 2009 between the Plaintiff and the Defendant joining the Defendant on the application for an unfair ex officio remedy.

3. Of the total costs of the litigation, the part resulting from the participation is borne by the Defendant’s Intervenor, and the remainder by the Defendant respectively.

A) The Plaintiff Company (the trade name was changed from the Geum River Development Industry Co., Ltd. to Hyundai L&S Co., Ltd. on March 24, 2006, and the new company Hyundai F&S, May 28, 2010) is a company that operates food materials supply business, computer system construction and operation business, etc. with approximately 190 workers employed at approximately 853-1 workers in Suwon-si, Suwon-dong, Suwon-dong, and the Defendant joining the Defendant (hereinafter referred to as the “ Intervenor”) who entered the Plaintiff Company on June 16, 198 and was in charge of inventory management for the production, management, and distribution of the fashion team. On April 1, 2009, the Plaintiff Company was a worker transferred to Hyundai B&P, divided by the Plaintiff Company (hereinafter referred to as the “former unit”).

B) On June 3, 2009, the Intervenor unilaterally filed an application for remedy with the Seoul Regional Labor Relations Commission by asserting that the transfer of the case to which the Intervenor belongs constituted an unfair transfer of affairs, and on June 3, 2009, the Intervenor dismissed the application for remedy with the purport that “the transfer of the case was made under the Intervenor’s prior and comprehensive consent, and is not unfair.” Accordingly, the Intervenor filed an application for review with the National Labor Relations Commission on October 14, 2009, and the National Labor Relations Commission should have the employee exercise the right to refuse for refusal for a considerable period of time upon obtaining the consent of each employee or for a reasonable period of time. However, in this case, it is difficult to view that the personnel exchange without the consent of each employee and its affiliated companies was established as a practice without the consent of each employee, and thus, the Seoul Regional Labor Relations Commission revoked the application for remedy with the purport that the transfer of the case constitutes an unfair decision that deviates from the scope of personnel discretion.”

[Reasons for Recognition] Each entry (including each number), the purport of the whole pleadings, and the purport of Gap evidence Nos. 1 and 2

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

A. The plaintiff company's assertion

1) If a company division takes place, the labor relationship belonging to the division division, regardless of whether the individual employee consented, shall be deemed as a matter of principle succeeded to the newly incorporated company established by the division, inasmuch as the employee does not specifically exclude the succession of the employee, as a matter of course, from the transfer of the employee’s business by concluding a labor contract with the original affiliated company and concluding a new labor contract with the other company. Accordingly, regardless of the Intervenor’s consent, the labor relationship between the Plaintiff company and the Intervenor was naturally succeeded to the newly incorporated company.

2) Even if an employer ought to determine whether to succeed to employment by reflecting the employee’s intention at the time of division of a family company, it is sufficient that the employer does not need to obtain the consent of the employee subject to employment succession and grants a reasonable period to exercise the right to refuse. However, the intervenor did not exercise the right to refuse the employment succession.

3) The Plaintiff Company has a provision that allows employees to move their employees to a group affiliate, and in fact, the transfer of labor relations between affiliated companies is established as a practice, such as not obtaining individual consent from employees during several corporate divisions, or at least the comprehensive and prior consent of employees exists on this part.

4) In addition, the intervenor worked for about two months after the division of the company on April 1, 2009, according to the division of the work of Hyundai B&P Co., Ltd., and received wages from Hyundai B&P, and applied for leave and used it. As such, the intervenor should be deemed to have given implied consent to the transfer of the pertinent case.

B. Relevant provisions

4. Collective agreement (former department store trade union)

Article 17 (Principles of Personnel Management)

4. The company shall respect the opinions of the union in consultation with the union and reflect as much as possible the movement of personnel to the union's inter-corporate groups (including the guidance committee members, the branch's own inter-corporate groups, and representatives) and the entry to the association's

Article 23 (Principles of Personnel Management)

6. Where a company is divided or merged, or all or part of its business is sold or transferred to another person, the company shall endeavor to succeed to employment, through full consultation with the union and the company in advance.

【Rules of Employment

Article 9 (Kinds of Movement)

A company may order an employee to move to a new land for business purposes, such as the placement of a place of work, the placement of a post, the assignment of a position, the appointment of a foreign substitute, the dispatch of a company to a main office, and the transfer of a company to a main office, and the employee ordered to move shall, without delay, perform duties in the new

【Personnel Regulations

Article 33 (Order for Transfer)

In any of the following cases, a company may order an employee to change his/her place of work, post a change in his/her position, place of work, place of work, or place of work, place of overseas dispatch, change of occupation,

(5) If there is a need to issue a transfer order on the company’s business balance.

(c) Fact of recognition;

1) The Plaintiff Company planned to divide the corporate business sector around October 2008 and demanded a labor-management consultation with respect to the modern department store trade unions organized for 20 or less times from October 23, 2008 to March 27, 2009. However, since the division of such business sector results in significant changes in the working conditions of workers in the relevant business sector, the Plaintiff Company asserted that the working conditions of the relevant union members should be determined by a collective agreement and demanded the Plaintiff Company to conduct collective bargaining with the Plaintiff Company.

2) However, the Plaintiff Company did not comply with the demand for collective bargaining by the Hyundai department store trade unions on the ground that the matters related to the division of the Plaintiff Company were not collective bargaining matters and existing working conditions

3) On October 24, 2008, the Plaintiff Company held an explanatory meeting on the management environment for employees with a position of director or higher, the employees’ meeting on the 30th of the same month, the explanatory meeting on November 4 of the same year, the employees’ meeting on the 6th of the same month, the employees’ meeting on the Yong-Namnam region on March 17, 2009, the necessity and method for corporate division against the full-time union employees on March 17, 2009, and held an explanatory meeting on the necessity and method for corporate division, the succession of employment to the employees of the relevant business division, and the maintenance of working conditions against the full-time union employees on the 31st of the same month after the general meeting of stockholders on March 27,

4) On April 1, 2009, the Plaintiff Company: (a) divided the business division, such as the corporate business division, which was part of the Plaintiff Company, into the following parts; and (b) established Hyundai B&P Co., Ltd. (hereinafter “MobPP”). Hyundai B&P divided the total number of outstanding stocks into the Plaintiff Company and the acquisition by transfer of the business sector divided from the Plaintiff Company. While establishing Hyundai B&P, the Plaintiff Company determined that the employment and related legal relations (including retirement allowances, loans, etc.) with respect to all employees working in the divided business division were succeeded to by Hyundai B&P after April 1, 2009.

A person shall be appointed.

5) On April 23, 2009, Hyundai Vienna reported the acquisition of insured status with employment insurance, and from April 24, 2009, the Intervenor paid monthly wages to employees belonging to the business sector subject to division, including the Intervenor.

6) On May 1, 2009, Hyundai B&P ordered the Intervenor to transfer the fashion team production management and distribution division to the corporate business team general business management division, and issued a new name to the new name.

7) On May 14, 2009, the Intervenor submitted a written objection to the effect that the Intervenor’s affiliation was changed to Hyundai B&P only after being notified of the fact of reporting the insured status by the Seoul Maritime Affairs and Labor Office, and on May 14, 2009, the Intervenor changed its affiliation without undergoing any such consultation procedure as “the Plaintiff Company is unreasonable.”

8) On April 27, 2009, 50 workers transferred to Hyundai B&P as intervenors submitted to the Seoul Regional Labor Relations Commission on April 27, 2009 an application for remedy for unfair and unfair labor practices (Seoul District Labor Relations Commission Decision 2009No908/Mano 50). However, upon dismissal by the Seoul Regional Labor Relations Commission, there was a withdrawal after filing an application for review with the National Labor Relations Commission.

9) The Hyundai Department Store Group established a new company through a company division as follows. At the time of the division, only consultation on the conditions of division, etc. with the Hyundai Department Store Trade Union was conducted at the time of division, and there was no individual consent from the employees of the said division.

A person shall be appointed.

[Ground of recognition] The descriptions of Gap evidence Nos. 3 through 8, 10, 11, 12, Eul evidence Nos. 1, 2, 4, 6 through 9, 11, 12, and 15 (including each number), and the purport of the whole pleadings

D. Determination

1) Relevant legal principles

A) The court of final appeal may reverse the judgment of the court below and remand the case to the court of final appeal, if it deems that the final appeal has justifiable grounds, and the court of final appeal is bound by the factual and legal judgment that the court of final appeal uses as the ground for reversal (Article 8(2) of the Administrative Litigation Act and Article 436(1) and (2) of the Civil Procedure Act). Thus, the court of final appeal shall determine the case as follows based on

B) Article 530-10 of the Commercial Act provides that “a company established through division (hereinafter “newly established”) shall succeed to the rights and obligations of the divided company in accordance with the division plan.” Thus, labor relations of the divided company may be included in the subject of succession pursuant to the above provision. However, in light of the purport of the Constitution that guarantees the freedom of occupation and the Labor Standards Act guarantees the workers’ right to self-determination on the working conditions (Article 4), prohibition of forced employment (Article 7), employer’s duty to specify the working conditions (Article 17), prohibition of unfair dismissal (Article 23), or restriction on dismissal due to managerial reasons (Article 24), the succession of labor relations following division of a company shall be allowed only when procedural justification is satisfied, such as going through the procedures for workers’ understanding and cooperation, and where it is used as a means to escape the provisions of the Act and subordinate statutes for the protection of workers, such restriction on dismissal, the effect shall be denied.

Therefore, in cases where a part of a business division succeeds to a newly incorporated company due to the division of a company running two or more businesses, if the divided company explained the background, purpose and time of the division, the scope and content of the labor relationship succeeded, the outline and content of the newly incorporated company, etc. to the labor union and workers before obtaining the approval of the general meeting of shareholders on the division plan, etc. and followed the procedure for seeking understanding and cooperation, the labor relationship related to the succeeded business shall, in principle, be succeeded to the newly incorporated company even if the relevant worker did not obtain the consent of the relevant employee. Provided, That where special circumstances exist, such as where the division of the company is used as a means to dismiss the relevant worker while avoiding the restrictions on dismissal under the Labor Standards Act, the relevant employee may refuse the succession of labor relations by expressing his/her opposing opinion within a reasonable period of time from the time when he/she received the notice of succession of labor relations or becomes aware of such fact (see Supreme Court Decisions 2011Du4282, Dec. 12, 2013>

2) Whether procedural legitimacy of the division of the instant company is justifiable

In light of the above legal principles, the above facts and evidence as to this case were stated as Gap evidence 13-1 and 2, the testimony and the entire purport of arguments as witnesses B of the court of first instance, i.e., the plaintiff company requested consultation with the modern department store trade union organized for not more than 20 members on 10 occasions in connection with the division of the company, but the consultation did not run due to differences in opinions. The plaintiff company provided explanation about the division of the company of this case from October 2008 to March 2009 to the plaintiff company's employees and full-time members, and provided that the plaintiff company did not hold an explanatory meeting on the division of the company of this case for about 5 months after the date of the division of the company of this case. The plaintiff company did not hold an explanatory meeting on the division of the company of this case to the plaintiff company of this case to the plaintiff company of this case to the 10-year employees and full-time employees of the plaintiff company of this case. The plaintiff company did not hold an explanatory meeting on the division of the company of this case.

3) Whether the instant corporate division is intended to avoid the restriction on dismissal under the Labor Standards Act

A) The Intervenor asserts that the Plaintiff Company divided the instant company into the instant company, even though there is no urgent management need due to the Plaintiff’s management condition at the time of the instant corporate division, it was conducted for the purpose of layoffing high-income workers with higher level than the same position as the Intervenor, and due to the instant corporate division, the Intervenor, including the Intervenor, has been remarkably low treatment in terms of working conditions, such as wages compared to the previous one. As such, the Intervenor has the right to refuse to remain in the divided company, and the Intervenor exercised the above right to refuse, so long as the Intervenor exercised the above right to refuse, the transfer of the instant company is unreasonable.

B) However, according to the overall purport of evidence Nos. 17 and 18 evidence, the Hyundai Department Store Group, including the Plaintiff Company and Hyundai T&P, was divided into six occasions from 2001 to 2008, and (2) Hyundai B&P continued to grow up after the instant division. From 2010 to 2013, Hyundai B&P was designated as the best place of business within the Hyundai Department of Business. (3) The retirement date of the Intervenor was more than the position of the position of the position of the position of the Plaintiff Company and 13 employees (including the Intervenor) for about four years and five months from May 15, 2009 to January 1, 2014; and (3) there was no evidence to acknowledge that the Intervenor was unfairly dismissed, including the Plaintiff Company Nos. 10 and 16, the Intervenor’s personal reasons for retirement, and there was no other evidence to acknowledge that the Intervenor was dismissed (including the Intervenor’s personal reasons for retirement).

C) Meanwhile, in a case where a worker suffers disadvantage, such as a significant decrease in working conditions beyond an ordinarily anticipated scope due to corporate division, the right to refuse to succeed to labor relations due to corporate division shall be exercised. However, even if a divided company or a newly incorporated company receives less benefits than that of a divided company due to changes in the wage system or the method of evaluating personnel affairs of the divided company after a considerable period of time has elapsed since the succession of legitimate labor relations due to corporate division, compared to cases where the divided company or the newly incorporated company is assumed to remain in the divided company, as long as the above wage system changes were duly made in accordance with statutes or agreements, the above circumstances alone should be deemed null and void or the worker cannot exercise the right to refuse to succeed to labor relations.

From 2010 to 5.6 million won (monthly 45 to 470,00), there is no dispute between the parties as to the fact that the participant left the Plaintiff company. However, this is merely a change in the wage payment method between the Plaintiff company and Hyundai B&P since the lapse of a considerable period of nine months from the time of the transfer of the instant case, and it is difficult to deem that the above difference in the wages occurred to the extent that it is impossible for the parties to become unsatisfy. In addition, the right to refuse workers to refuse labor relations due to the division of the company should be exercised within a reasonable period of time from the time of the occurrence of the relevant cause. In addition, even in the Intervenor’s assertion, there is no evidence to acknowledge that the decline in the working conditions due to the division of the company has occurred since 2010, and that the Intervenor exercised the right to refuse against the Plaintiff company within a reasonable period of time from the time of the transfer of the instant case (the Intervenor’s assertion in this part of the preparatory document was rejected for the first time from the Intervenor’s first time.

4) Sub-committee

Therefore, the transfer of this case is justified, and the decision on review of this case, which was made on a different premise, must be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance is revoked and the judgment of the court of first instance is revoked and it is so decided as per Disposition.

Judges Hun-Ba

Judges Kim Gin-ran