2. The costs of appeal shall be borne by the Plaintiff.

The following facts do not conflict between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each of the evidence Nos. 1, 2, and 2-1 through 3, 3, 1-2, 1-2, 24-1, 2, 38-3, 6, 8, and 56-2.

A. The Plaintiff is a company that employs 1,321 full-time workers and operates a vehicle parts, factory machinery, and other industrial appliances manufacturing business (hereinafter “Plaintiff company”), and the Intervenor, etc. is a person who has worked in the above company.

B. The Plaintiff Company issued a leave of absence to 250 persons including 100 persons as of April 1, 2004, 100 persons as of June 6 of the same month, and 50 persons as of September 9 of the same month, and 250 persons including intervenors, etc. on the ground that the Plaintiff Company is responsible for rationalizing management early as a self-help to overcome business crisis and for guaranteeing employment and creating jobs (hereinafter “instant leave of absence”).

C. Accordingly, the Intervenor, etc. issued an order for remedy that the Intervenor, etc. should be reinstated to their original position and pay the amount equivalent to the wages which would have been paid if they had worked normally during the pertinent period of suspension of business due to the defect in the application for remedy of unfair suspension of business under the 2004 Gwangju Regional Labor Relations Commission’s 66, 67, 75, 79, 83, and 93, while the Intervenor, etc. actually fell under the category of unfair dismissal.

D. On September 23, 2004, the Plaintiff Company filed an application for reexamination with the National Labor Relations Commission as to September 23, 2004, which was subject to review. However, on June 16, 2005, the National Labor Relations Commission rendered a new trial ruling to the effect that the part of the application for remedy for unfair labor practices among the above remedy orders was revoked on the ground that the part of the application for remedy for unfair labor practices in the above remedy order was not well-grounded, and that the part of the part of the original portion of the order for remedy by the Gyeongnam Regional Labor Relations Commission, which would have been paid if the Intervenor et al. had worked normally during the leave of absence of substantive and procedural justification.

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 as a result of its management needs, and efforts were made to maintain objectivity and fairness as much as possible by selecting a business department, etc., which is expected to cause idle human resources, taking into account the number of years of service, age, dependents, etc. of its employees. Furthermore, the instant temporary closure leave was taken as a means of efforts to avoid layoff, and the instant temporary closure leave was paid to the employees subject to temporary closure leave equivalent to 70/100 of average wages during the period of temporary closure, so it does not substantially disadvantage the employees. Accordingly, the instant temporary closure leave was ratified by the National Metal Trade Union as a result of an agreement with the president of the Trade Union.

(2) Therefore, despite the fact that the Plaintiff Company’s temporary closure leave is justifiable, the decision of this case, which had different conclusions, is unlawful.

(b) basic facts;

The following facts are not disputed between the parties, or comprehensively taking account of the following facts: Gap evidence 1-1, Gap evidence 1-2-1 through 3, Eul evidence 9-1 through 8, Gap evidence 14-1 through 10, Gap evidence 15-1 through 21, Gap evidence 16-1, 2, Gap evidence 17-1 through 9, Gap evidence 20-1 through 7, Gap evidence 21-24-1, Eul evidence 3, Eul evidence 38-3, Eul evidence 7 through 9, Eul evidence 11 through 57, Eul evidence 5-1 through 57, Eul evidence 58-1 through 5, Eul evidence 71, Eul evidence 72-1, Eul evidence 2-1, and non-party 1's testimony in part of the non-party 1.

(1) From around 197 due to frequent labor-management regulations, management’s bruptive management, etc., the Plaintiff Company has rapidly aggravated its management from around November 30, 1998. After the company reorganization procedure commenced on April 23, 1999, all of 560 billion won was discharged, but the business operator reached 7.7 billion won only for 2002. Thus, the Plaintiff Company submitted a written agreement related to M&A on March 13, 2003 while maintaining the brucing beer, and received a decision to complete the company reorganization procedure from the Seoul District Court by taking office on the 15th of the same month.

(2) In 2003, the Plaintiff Company continued to send a public letter, such as “request for consultation on restructuring” as of March 11, 201, and “case of request for consultation on management normalization” as of March 24, 2003, to the Gyeongnam Branch of the Gyeongnam Branch of the Korea Metal Trade Union (hereinafter “Labor Union”) on the ground of business normalization in 2004, on the ground of the commencement of business normalization, the Plaintiff Company sent to the Plaintiff Company a public letter, such as “an early negotiation on wage organization” as of February 16, 2004 and “the National Metal Trade Union” as of March 24, 200. Accordingly, the Trade Union was a single trade union, and thus, it cannot negotiate for the agreement on wage organization according to the decision of the Subdivision. Meanwhile, the Plaintiff Company requested the withdrawal of the agreement on March 17, 2004.

(3) After that, on March 24, 2004, the Plaintiff Company sent to the Labor Union Branch a letter of public notice demanding negotiations for business normalization, such as early conclusion of the wage organization agreement, and consultation on restructuring, etc. Around 15:00 of the same month, around 26:15:00 of the same month, the Plaintiff Company conducted the first collective bargaining, and around 16:30 of the same day, on April 1 of the same year, publicly announced that the temporary leave was held as of April 1 of the same year for 10 of the list of the persons eligible for the first temporary leave.

(4) On March 31, 2004, with regard to the consultation on restructuring in 2004, the Plaintiff Company presented as a proposal for negotiations the contents of not layoff, 300,000 won payment of incentive money, and performance-based bonus payment, etc. In response to the refusal of this, on April 2, 2004, the Plaintiff Company announced 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 promotional materials related to the recruitment of desired retirement 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 of the third list of the temporary leave of this case (the 9th of the same month temporary leave of this case) on the 8th of the same month.

(6) The Plaintiff Company stated that the suspension of work is necessary to resolve idle human resources in the course of negotiations with the labor union and the labor union branch prior to the implementation of the instant suspension of work, but did not hold all consultations with the labor union and the Intervenor, etc. regarding the implementation period, scale, target, etc. of the instant suspension of work.

(7) Meanwhile, Article 1 of the collective agreement between the Plaintiff Company and the National Metal Trade Union of 2003 provides that unless the National Metal Trade Union delegates the right to negotiate, only the National Metal Trade Union shall be the only negotiating labor organization of the Plaintiff Company. Article 34 subparag. 3 of the collective agreement provides that the employer shall be reinstated in accordance with the above order of remedy, even if the employer files a petition for review or an administrative litigation against the pertinent order of unfair dismissal remedy by the Regional Labor Relations Commission.

C. Determination

(1) Whether the provision of Article 45(1) of the Labor Standards Act can be the basis for implementing the temporary leave

The Plaintiff Company is a matter to be decided and implemented by the employer’s management judgment, and there is no legal basis to specifically prohibit or restrict the Plaintiff Company’s implementation of the suspension of business, and the determination of whether or not the employer’s implementation of the suspension of business is respected, and it is unnecessary to determine the legitimacy thereof in a judicial manner under the Labor Standards Act. However, if the cause of the suspension of business is not due to the worker’s circumstances, it is argued that the amount equivalent to 70/10 of the average wage as provided by Article 45(1) of the Labor Standards Act is only the obligation to pay the suspension of business as the suspension of

Article 45 (1) of the Labor Standards Act provides that the employer shall not be entitled to temporary closure allowances for the reasons that the employer would not have agreed on the temporary closure allowances under the above provision of Article 45 (1) of the Labor Standards Act. However, if the employer is not entitled to temporary closure allowances for the reason that the provision of Article 538 (1) of the Civil Act provides for temporary closure allowances for the reasons that the employer would not be entitled to temporary closure allowances under the above provision of Article 538 (1) of the same Act, the employer would not be entitled to temporary closure allowances for the reason that the provision of Article 55 (2) of the same Act provides for temporary closure allowances for the reasons that the employer would not be entitled to temporary closure allowances for the reason that the above provision of temporary closure allowances would not have any more than 10 percent of the total amount of temporary closure allowances for the reason that the employer would not have been entitled to temporary closure allowances for the reason that the above provision of temporary closure allowances would not have a significant meaning, such as the above provision of the Labor Standards Act.

(2) The nature of the instant leave of absence

As seen earlier in the factual basis, the following facts are acknowledged: (a) the developments leading up to the instant temporary retirement; (b) Gap evidence 8-1, 2 (No. 51-2; hereinafter the same shall apply); (c) Gap evidence 3 through 5; (d) Gap evidence 16-2; and (e) Eul evidence 51-1, Eul 75, and 76-2; (c) the Plaintiff Company did not request consultation on restructuring to the labor union sub-council on three occasions, including March 11, 2004; (d) the fact that the Plaintiff Company did not receive a temporary retirement report on the temporary retirement for the reasons of April 19, 2004; and (e) the fact that the Plaintiff Company did not receive a temporary retirement order from the labor union non-party 2; and (e) the Plaintiff Company did not appear to have received a temporary retirement order from the labor union non-party 3; and (e) the Plaintiff Company did not appear to have received a temporary retirement order from the labor union non-party 2.

Therefore, the issue of whether the temporary leave in this case is legitimate and justifiable is determined by whether it falls under the case of “justifiable cause” under Article 31(1) of the Labor Standards Act.

(3) Whether the instant leave of absence is justifiable

"Justifiable reason" under Article 30 (1) of the Labor Standards Act refers to a case where there is an inevitable reason to be responsible for the worker to the extent that the employment contract cannot be continued under the social norms, or where there is an inevitable reason for management, and it shall be viewed that there is a justifiable reason as mentioned above.

(A) Facts recognized

갑4, 6, 12호증, 갑8호증의 1 내지 3, 갑11호증의 1, 2, 을10, 11, 23, 36, 40 내지 42, 53, 67, 68호증, 을16호증의 1 내지 5, 을20호증의 1 내지 17, 을21호증의 1 내지 79, 을22호증의 1 내지 3, 을27호증의 1 내지 10, 을69호증의 1, 2의 각 기재에 변론 전체의 취지를 종합하면, 원고 회사의 ① 연도별 매출액과 영업이익은 각각 2002년도에 2,157억 원(1인당 매출액 1.55억 원)과 ▼77억 원(▼은 적자 표시, 이하 같다), 2003년도에 2,231억 원(1인당 매출액 1.65억 원)과 ▼48억 원인 사실, ② 2004년도 1분기 매출액의 경우 518억 4,200만 원으로 전년 동기 대비 57억 6,200만 원이 증가하였고, 영업이익의 경우 ▼4억 4,700만 원으로 전년 동기 대비 20억 5,700만 원이 증가하였으며, 경상이익은 5억 7,900만 원으로 전년 동기 대비 50억 300만 원이 증가한 사실, ③ 2004년 상반기 매출은 전년 동기 대비 10.6%가 늘어난 1,148억 원이고, 영업이익은 60억 원 적자에서 24억 원 흑자로, 경상이익도 82억 원 적자에서 51억 원 흑자로 전환된 사실, 특히 2004년 2분기는 1분기와 비교할 때 매출액은 518억 원에서 111억 원 증가한 629억 원(21.43% 상승)을 달성하였고, 영업이익은 4억 원 적자에서 28억 원 흑자로 전환되었으며, 경상이익은 6억 원에서 45억 원으로 대폭 증가한 사실, ④ 제품판매 실적의 경우에도 2003년 차량부품 1,212억 원, 공작기계 175억 원, 주물 195억 원, 기타 648억 원 등 합계 약 2,231억 원이고, 2004년 차량부품 1,420억 원, 공작기계 387억 원, 주물 244억 원, 기타 561억 원, 합계 약 2,637억 원으로 약 400억 원 정도가 증가한 점, ⑤ 2004년도 1분기 당시 매달 총 생산실적이 증가추세에 있었고, 2003년 대비 시간당 생산성도 향상된 사실(을68호증), ⑥ 원고 회사는 2004년도에도 연장근로가 거의 모든 부서와 반에 걸쳐 행해졌으며, 특히 특사사업본부, 차량사업본부(차축조립 3반), 주물사업본부 등의 경우 아래 표 기재와 같이 연장근로가 행해진 사실을

may be recognized.

The head office of the vehicle business headquarters of the headquarters for the special purpose company (three teams of the tea assembly) contained in the main text shall be 11.3 hours and 66.1 hours and 41.5 hours and 41.2 hours and 61.2 hours and 61.2 hours and 50.2 hours and 42.3 hours and 42.3 hours and 49.3 hours and 14.6 hours and 58.1 hours for the main water business headquarters for the first quarter.

(B) As seen above, the Plaintiff Company started to continuously increase the sales amount and operating income from 2003 to the first half of 2004, and has already changed its operating income from the first quarter and the second quarter of 2004 to black. Even when comparing the first quarter and the second quarter of 2004, the operating income has been changed from 400 million won to 2.8 billion won, and the ordinary profit has been significantly increased from 60 million to 4.5 billion won, and the management status of the Plaintiff Company has been improved, such as the increase in the sales amount and productivity of 1 worker at the time of the instant temporary retirement. Even after the instant temporary retirement, overtime work has been continuously conducted over almost all sectors of the Plaintiff Company, it is difficult to find that the Plaintiff Company had made every effort to avoid the temporary retirement, and it is difficult to find that the Plaintiff Company had no justifiable reason to recognize the Plaintiff Company’s temporary retirement due to the reason attributable to the Plaintiff Company, including the instant temporary retirement for a certain period of time after its temporary retirement.

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

On March 11, 2004, the Plaintiff Company has already notified the Labor Union Branch of the plan for layoff, but the instant temporary closure was implemented on behalf of it. On April 27, 2004, the Plaintiff Company concluded a large-scale negotiation for the management normalization with the labor union branch and the union members through the supporting vote of the union members, as well as the majority of all union members were approved through the labor union's approval on January 10, 2006, and at least the instant temporary closure can be deemed by the labor-management agreement. Accordingly, the Plaintiff Company asserts that the substantive and procedural defects of the instant temporary closure leave were completely cured.

Therefore, as seen earlier, the Plaintiff Company notified the Labor Relations Commission of the fact that it received the above request for restructuring from March 11, 2004 to 10, 10, 18-1 to 3, 19-1, 2, 28, 131-2, and 74 and 78-2, the Plaintiff Company and the Labor Relations Commission were not assigned to the 20-year old-end company's 20-year old-end company's 17 old-end company's 6th new-end company's 6th new-end company's 9th new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new-end company's new.

However, it appears to be related to the above agreement only to "a company shall not be dismissed," "a company shall return 250 persons who are 250 persons who are 250 persons who are 250 persons who are 250 persons who are 250 persons who are 250 persons who are 250 persons who are 250 persons who are on 250 persons who are on 31 January 2005," and it is difficult to view the contents of the above agreement as a ratification of the Korean Metal Trade Union's ex post facto confirmation of the legitimacy of the business suspension. As seen above, since it cannot be recognized that the plaintiff company made any effort to avoid the unavoidable necessity of management and to avoid the business suspension in conducting the business suspension of this case, it cannot be seen that the plaintiff company's assertion that the above agreement on the suspension of business of this case was invalid ex post or that it was obtained after the temporary suspension of business after the temporary suspension of business of this case.

(D) Sub-determination

Ultimately, the Plaintiff Company’s temporary retirement constitutes an unfair temporary retirement without a justifiable reason under Article 30(1) of the Labor Standards Act.

3. Conclusion

Therefore, the decision of retrial rendered on the premise that the leave of absence in this case is illegal is legitimate, and the claim in this case of the plaintiff company seeking the revocation thereof shall be dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition on the ground that the appeal of the plaintiff company is without merit.

[Attachment List omitted]

Judges Kim Jong-soo (Presiding Judge) Kim Jong-sik Kim Yong-sik