[2] Requirements for an employer’s lock-out to be recognized as a legitimate industrial action under Article 46 of the Trade Union and Labor Relations Adjustment Act, and in a case where a lock-out constitutes a preemptive and aggressive lock-out beyond the defensive purpose of the trade union’s industrial action, whether legitimacy can be recognized (negative) / Whether the employer may be exempted from the duty to pay wages to the workers during the lock-out period (negative in principle)

[3] Standard for determining whether the lock-out period by an employer constitutes “the industrial action period under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act” under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act

Article 2(1) of the Enforcement Decree of the Labor Standards Act provides an exception to the principle of calculating average wages. Accordingly, where an industrial action period (Article 2 subparag. 6) under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) exists during the period of calculating average wages, the period and the total amount of wages paid during the period are deducted respectively from the period during which the average wage is calculated. This is intended to realize a balance between the principle of calculating average wages and the protection of workers’ interests by exceptionally allowing the exclusion from the average wage, only when it is difficult to deem that an employee’s exercise of rights is necessary during the period in which the reduction of wages

Considering the purport and nature of Article 2(1) of the Enforcement Decree of the Labor Standards Act, which is specifically considered by an employee to prevent disadvantages in calculating average wages due to a cause not deemed that the employee is responsible for exercising his/her legitimate rights or for workers, the period during which an industrial action meets the requirements for the subject, purpose, procedure, means and method of legitimate industrial action guaranteed in accordance with the Constitution and the Trade Union Act refers to the “period of industrial action under Article 2 subparag. 6 of the Trade Union Act” under Article 2 subparag. 6. The period during which an industrial

[2] A lock-out by an employer under Article 46 of the Trade Union and Labor Relations Adjustment Act may be acknowledged as a legitimate industrial action by an employer only when it is reasonable as a means of defense against an industrial action by workers, in light of specific circumstances, such as the negotiating attitude and process between the employer and workers, the purpose and method of the industrial action by workers, and the degree of shock that the employer receives. The legitimacy is not recognized in cases where a lock-out falls under a prior-out or aggressive lock-out, which is aimed at weakeninging the trade union’s organizational power actively beyond the defensive purpose of the industrial action by the trade union. In cases where a lock-out is not deemed as a legitimate industrial action, the employer

[3] The following conclusions may be derived by taking into account the concept and calculation method of average wages under Article 2(1)6 of the Labor Standards Act, the purport and nature of Article 2(1) of the Enforcement Decree of the Labor Standards Act, whether the period during which workers participate in an illegal industrial action falls under the period under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act, and the relationship between lock-out

First, considering the legislative intent and purpose of Article 2(1) of the Enforcement Decree of the Labor Standards Act, the period during which the employer is not obligated to pay wages to workers as a result of lawful lock-out by industrial action constitutes, in principle, the period under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act. However, if the lock-out period overlaps with the period for workers’ unlawful participation in industrial action, the period under Article 2(1)6 of the Enforcement Decree

Second, if an employer is still obligated to pay wages due to an illegal lock-out, it is difficult to recognize the need to exclude the period from the average wage calculation period in order to protect the interests of workers, and it is not a period corresponding to Article 2 (1) 6 of the Enforcement Decree of the Labor Standards Act

On the contrary, without considering the legality of lock-out, existence of employer’s duty to pay wages, etc., the lock-out period uniformly cannot be deemed to constitute “the period of industrial action pursuant to Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act” under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act.

1. Whether the instant disciplinary action is justifiable (ground of appeal Nos. 1 to 3)

A. On the grounds delineated below, the lower court determined that the instant disciplinary action against the Plaintiffs by the Defendant was null and void due to a significant and apparent defect in the procedural problem or the criteria for unfair determination, etc.

(1) The notice of the attendance of the disciplinary committee sent by the Defendant to the Plaintiffs is too comprehensive and abstract, and it is difficult to deem that the Defendant notified the Plaintiffs of specific grounds for disciplinary action to the extent that the Defendant could specifically know the grounds for disciplinary action.

(2) It is difficult to deem that the Defendant provided the Plaintiffs sufficient time or provided a real opportunity to provide the Plaintiffs with an opportunity to provide explanations and explanatory materials pursuant to Article 32 of the collective agreement.

(3) The Defendant’s 35 points out of the “time of returning to work” that is not specified in the grounds for disciplinary action does not differ from substantially adding a serious grounds for disciplinary action. Such exercise of the right not only contravenes the purport of mediation between the labor union to which the Plaintiffs belong and the Defendant, but also contradicts procedural justice regardless of whether the grounds for disciplinary action are recognized.

B. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding notification of grounds for disciplinary action, granting of opportunity to vindicate

2. Whether the lock-out period is deducted from the average wage calculation period (ground of appeal No. 4: Plaintiffs other than Plaintiffs 105 and 106)

A. Article 2(1)6 of the Labor Standards Act explicitly states the principle of the average wage calculation, “The average wage means the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period immediately before the date on which the cause for calculating the average wage occurred by the total number of days in that period.” Generally, the method of calculating the average wage generally reflects the ordinary living wage of the worker at the time of the occurrence of the cause. However, when applying the aforementioned calculation principle uniformly in all cases, it may be difficult to reflect the ordinary living wage of the worker as they are unable

Article 2(1) of the Enforcement Decree of the Labor Standards Act provides an exception to the principle of calculating average wages. Accordingly, if an industrial action period (Article 2 subparag. 6) under Article 2 subparag. 6 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) exists during the period of calculating average wages, the period and the total amount of wages paid during the period are deducted respectively from the period during which the average wage is calculated. This is intended to realize a balance between the principle of calculating average wages and the protection of workers’ interests by exceptionally allowing an exception to the cases where it is necessary to guarantee workers’ exercise of rights during the expected period of wage decrease or where it is difficult to deem the workers to be responsible

Considering the purport and nature of Article 2(1) of the Enforcement Decree of the Labor Standards Act, which is specifically considered by an employee to prevent disadvantages in calculating average wages due to a cause not to be deemed that the employee is responsible for exercising his/her legitimate right or for workers, the period during which an industrial action meets the requirements for the subject, purpose, procedure, means and method of lawful industrial action guaranteed in accordance with the Constitution and the Trade Union Act refers to the “period of industrial action under Article 2 subparag. 6 of the Trade Union Act” under Article 2 subparag. 6 of the same Act. The period during which an industrial action does not meet the above requirements does not include any unlawful industrial action (see Supreme Court Decision 2006Da17287

B. A lock-out by an employer as stipulated under Article 46 of the Trade Union Act may be acknowledged as a legitimate industrial action by an employer only if there is considerable nature as a means of defense against an industrial action by workers, in light of the specific circumstances, such as the negotiating attitude and process between the employer and workers, the purpose and method of industrial action by workers, and the degree of shock that the employer is expected to receive. Where a lock-out falls under a prior and aggressive lock-out for the purpose of weakeninging the trade union’s organization actively beyond the defensive purpose of the industrial action by the trade union, legitimacy is not recognized. Where a lock-out is not deemed a legitimate industrial action, the employer cannot, in principle, be exempt from the duty to pay wages to the workers during the lock-out period (see, e.g., Supreme Court Decisions 98Da3431, May 26, 2000; 2012Da85335, May 24, 201

C. In full view of the concept and calculation method of average wages under Article 2(1)6 of the Labor Standards Act, the purport and nature of Article 2(1) of the Enforcement Decree of the Labor Standards Act, whether the period during which workers participate in an illegal industrial action falls under the period under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act, and the relationship between lock-outs and the employer’s duty

First, considering the legislative intent and purpose of Article 2(1) of the Enforcement Decree of the Labor Standards Act, the period during which an employer is not obligated to pay wages to workers as a result of lawful lock-out by industrial action constitutes, in principle, the period under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act. However, if such lock-out period overlaps with that of workers’ illegal industrial action, it cannot be included in the period under Article 2(1)6 of the Enforcement Decree

Second, if an employer is still obligated to pay wages due to an illegal lock-out, it is difficult to recognize the need to exclude the period from the average wage calculation period in order to protect the interests of workers, and it is not a period corresponding to Article 2 (1) 6 of the Enforcement Decree of the Labor Standards Act.

On the contrary, without considering the legality of lock-out, existence of employer’s duty to pay wages, etc., the lock-out period uniformly cannot be deemed to constitute “the period of industrial action pursuant to Article 2 subparag. 6 of the Trade Union Act” under Article 2(1)6 of the Enforcement Decree of the Labor Standards Act.

D. Nevertheless, the lower court determined that the lock-out period by the Defendant is the period naturally deducted from the average wage calculation period pursuant to Article 2(1)6 of the Enforcement Decree of the Labor Standards Act without examining the legality of lock-out or the existence of employer’s obligation to pay wages. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of average wages, thereby failing to exhaust all necessary deliberations. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

The part of the judgment of the court below against the plaintiffs except for plaintiffs 105 and 106 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal against plaintiffs 105 and 106 is dismissed as it is without merit. The costs of appeal between plaintiffs 105 and 106 and the defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Min You-sook (Presiding Justice)