[2] In the case of a reorganization dismissal of a company's place of business operated in the form of an independent debt settlement system, whether "a tension of management necessity, which is the requirement, should consider the overall management situation of the company (negative)

[3] Where 112 persons among 124 persons selected as persons subject to layoff retire by means of voluntary retirement, whether an urgent managerial necessity has ceased to exist (negative)

[4] The case holding that a company has made every effort to avoid dismissal in case where a dismissal dismissal has been implemented through a labor-management consultation that has been conducted several times in order to suspend new employment and to implement a plan for job placement training

[5] The case holding that it is not unreasonable or unfair to select a person subject to dismissal in case of layoff

[2] In the case of reorganization dismissal of a place of business operated in the form of an independent debt settlement system with no exchange between workers and other business departments of a company, the "tension for management", which is its requirement, shall not be determined by considering the overall management situation of the company.

[3] The case holding that since 124 persons are selected as persons subject to layoff due to urgent managerial needs in the case of layoff, it cannot be deemed that there was no urgent managerial necessity even if 112 persons were retired by means of voluntary retirement

[4] The case holding that if the business office of a company discontinues new employment, and pays surplus personnel to a person in the atmosphere of a business office or home, it paid retirement consolation benefits by providing voluntary retirement, and the labor union, as at the time of the layoff, proposed a plan for job placement training as an alternative for the reason that it is difficult for workers to expect the effect of job placement training in the labor union to establish and implement the plan for job placement training, and selected a person to be dismissed through labor-management consultation on several occasions, the company has

[5] The case holding that it is not unreasonable or unfair to select a person subject to dismissal in case of layoff

2. The costs of lawsuit are assessed against the plaintiffs.

The following facts are not disputed between the parties, or there is no other counter-proof as to Gap evidence 1-2, Eul evidence 4-3 through 10, respectively.

가. 피고 보조참가인 회사(이하 참가인 회사라 한다)는 근로자 6,000여명을 고용하여 건설업을 하는 회사이고, 원고 윤필중은 1981. 7. 7. 이동정비직으로, 원고 전해국은 1986. 11. 21. 점보드릴직으로, 원고 조상래는 1987. 5. 4. 휘로다직으로, 원고 송철호는 1987. 4. 6. 크랏샤직으로, 원고 조상기는 1985. 3. 12. 휘로다직으로, 원고 정태웅은 1975. 5. 1. 담프직으로, 원고 석원희는 1988. 10. 8. 레미콘직으로, 원고 김용구는 1981. 5. 12. 담프직으로 각 참가인 회사에 입사하여 동 회사 장비사업소에서 근무하다가 1995. 2. 28. 모두 정리해고(이하 이 사건 정리해고라 한다)되었다.

B. Accordingly, on March 20 of the same year, the plaintiffs filed an application for remedy with the Seoul Regional Labor Relations Commission on March 20 of the same year because the dismissal of this case did not meet the requirements for layoff, but was dismissed, and the defendant filed an application for review to the defendant. On June 16 of the same year, the defendant rejected the application for review on the ground that the dismissal of this case met the general requirements for layoff.

2. The legality of a decision on review.

A. The plaintiff's assertion

First, the above equipment office is merely one of the several business sections of the company, and even if the equipment office is guaranteed to some extent the above equipment office cannot be regarded as an independent or independent business entity. Therefore, an imminent managerial crisis, which is the requirement for layoff, should be determined by comprehensively examining the overall management situation of the intervenor company, and it should not be determined based on the business number of the above equipment office, which is only one of the above equipment offices or business offices of the intervenor company. Although the deficit in the above equipment office has been accumulated, it cannot be said that there exists an urgent managerial necessity for the intervenor company to be dismissed, and even if there was a need to reduce the number of the above equipment offices in 195 and the participant company's office, there is no urgent need to dismiss the intervenor company, and there is no urgent need to review the remaining employees, and there is no urgent need to dismiss the intervenor company in the situation where there is no other need to dismiss the intervenor.

Second, the intervenor company developed a new type of business that is the development and production of machinery related to the environmental business as part of the management improvement of the above equipment and business office. At the end of 1994, the remaining number of surplus personnel at the above equipment and business office was adjusted by the method of voluntary retirement, and the remaining was determined to be transferred and placed through the transfer training and the plan was formulated on November 3, 1994 by the employees of the above equipment and business office as of the above time. Thus, although the plaintiffs were selected as the person subject to reorganization but still remains in the company, it is sufficiently possible for the plaintiffs to conduct the transfer training and assign new environmental business to the new environmental business sector, and it was impossible for the plaintiffs to immediately dismiss the plaintiffs on the ground that the intervenor company failed to comply with voluntary retirement, it is unlawful in the retrial decision of this case that the intervenor company made full efforts to avoid dismissal.

Third, the intervenor company, at the time of the reduction of the number of employees on January 18, 1993, selected the person subject to reorganization in the order of short-term workers without any reason, while in the case of the reorganization dismissal in this case, the intervenor company selected the person subject to reorganization in the order of short-term workers without any reason. In addition, in the case of the selection of short-term workers, any unreasonable result occurred in the case of the worker dispatched abroad and returned to work abroad without considering the first employee date of the worker's employment, which was treated as a short-term worker than the person who was employed in the middle, and was actually selected as the person subject to reorganization under the above unreasonable criteria. Thus, even though the intervenor company selected the person subject to reorganization in this case according to unreasonable criteria, the decision of reexamination in this case was unlawful, and the decision of reexamination in this case was made in order that the intervenor was selected by reasonable and fair criteria for the reorganization in this case.

Fourth, the layoff, such as the layoff in this case, is to terminate the worker status itself, which brings about changes in the most important working conditions, so it cannot be a matter of consultation with the labor union. Therefore, the review decision in this case is unlawful that the above equipment branch office did not have any delegation from this Article, which has the right to collective bargaining and to conclude collective agreements with the intervenor company trade union, with respect to the matters which are close to half of the total number of employees within the equipment office, and which is not delegated any delegation from this Article of the labor union of the intervenor company. The labor-management agreement of February 16, 1995, which consented to the reorganization of the company, should be null and void even though the labor-management agreement of February 16, 1995, which was unilaterally

B. Facts recognized

Each of the evidence mentioned above, Gap evidence Nos. 4, Eul evidence Nos. 1, 2, and 3-1, 2, Eul evidence No. 4-1, 2, Eul evidence No. 5, 6-1, 2, Eul evidence No. 13, Eul evidence No. 14-1, 2, Eul evidence No. 14-2, Eul evidence No. 15-1, 2, 15-3, Eul evidence No. 16-1 through 11, Eul evidence No. 17-1 through 6, Eul evidence No. 18-1, 2, Eul evidence No. 20, 21-1 through 7, Eul evidence No. 222-1, Eul evidence No. 23, Eul evidence No. 24-2, Eul evidence No. 25-2, Eul evidence No. 1, evidence No. 6-1, evidence No. 3, evidence No. 27-2, evidence No. 25-2, evidence No.

(1) The Intervenor Company’s Equipment and Business Office was established on January 1, 1978, and was operated as an independent business office under the direct control of the representative director on March 20, 1987, and the name was changed to the construction machinery business office as of February 22, 1995, and made an independent business registration on July 20 of the same year.

(2) Workers at the above equipment office consisting of the employees who are engaged in heavy equipment driving, and there has been no human exchanges from all other types of business of the intervenor company, while exercising personnel rights, the director of the above equipment office has almost exercised personnel management rights, and the physical facilities have been in fact operated independently and independently.

(3) As above, the above equipment business office and the above labor union have been independently managed by labor-management consultation with respect to the other working conditions of each business place except the general collective agreement and the comprehensive wage agreement since the establishment of the above equipment business office on June 20, 198, separate from the labor union of the intervenor company, since its nature or working conditions differ entirely from those of the intervenor company's other business places.

(4) Since the mid-1980s, the above equipment business office has reduced the business volume due to industrial causes in the mid-1980s, and as a result, it has gradually reduced the organizations that have continuously been instructed by the enemy since the 1990s, and completely suspended new employment in addition to the employment of one person eligible for veterans on April 1993. Since 1993, surplus personnel other than on-site employees are considered to have been paid wages to the business office waiting or their own atmosphere, while continuing to pay wages to them.

(5) However, it was inevitable to reduce the number of employees for the rationalization of management due to the increase in the number of employees due to natural decrease (2.2 billion won in 190, 2.2 billion won in 191, 1992, 3.3 billion won in 1993, 3.93 billion won in 1994, and 4.1 billion won in 1994), and because it was impossible to deal with idle human resources. Accordingly, according to the agreement between labor and management on January 18, 1993, the voluntary retirement was provided to 110 workers aged 50 years in order to recruit desired retirees.

(6) The Intervenor Company sought to convert the type of business into an environmental project in the equipment place, such as developing and selling the washing machine, which is the equipment washing machine for vehicles entering the building site, in a situation where the market condition of the equipment business becomes rapidly worse after the above reduction of the number of employees, and thus, it would not continue to operate the equipment business. Accordingly, among surplus human resources as at the end of 194, the Intervenor voluntarily provided the voluntary retirement of 20 desired workers on December 2, 1994 by providing the job change and assigning the remainder to the job. < Amended by Act No. 4794, Dec. 2, 1994>

(7) Meanwhile, as of November 3, 1994, the Intervenor Company prepared and implemented an implementation plan for education for job change and functional improvement of employees in the above equipment and business offices who are subject to training from December 1, 1994 to May 31, 195. However, as the labor union gathers the opinions of most workers on the part of its labor union, it presented an opinion that job change education is relatively old, and thus, it is not desirable to conduct job change education. The Intervenor demanded to hold a labor-management council on voluntary retirement and reached a final agreement on the instant layoff as between January 26, 1995 and February 16, 1995.

(8) The contents of the agreement on layoff between the above labor-management and the employment-management are to accommodate all retirement applicants, and the criteria for selection are determined by the labor-management agreement by job type, but if there is insufficient number of prospective retirees for each job, 124 adjusted number of employees agreed by the labor-management was 17,00,000 won per person and 5 months’ average wage for each job.

(9) Therefore, the intervenor company decided to dismiss 112 applicants for voluntary retirement among 124 persons subject to reorganization, 10 persons, excluding one person subject to additional medical care, and one person subject to veterans, according to the above criteria for layoff as of February 28, 1995, and 10 persons, including the plaintiffs, were dismissed.

(10) On July 13, 1969, the plaintiff Jeonn Sea concluded a labor contract on November 21, 1986 when he joined the intervenor company and returned home on April 13, 1986 after the second entry into the intervenor company, and six months passed after the last entry into the country. The participant company had entered into a labor contract in the form of re-admission from time to time when the worker was dispatched to a foreign country and returned home. However, the participant company agreed on six months after the above equipment office and the above labor union branch's re-employment into the labor contract in the form of re-admission from time to time, but the new worker was reinstated after his return to Korea on March 4, 1989 on the date of the last entry into the labor union, and thereafter, the new worker was entitled to the first salary class 1 as before the date of his return to Korea on March 1, 1992.

(11) Article 7 of the Regulations on the Operation of the Intervenor’s Trade Union provides that this association shall be comprised of the employees employed in the same building industry (ju) and its branch or sub-branch shall be established depending on the nature of an independent workplace. Article 3 of the Regulations on the Operation of the Labor-Management Council provides that the labor-management council shall be established separately from the head office and unit workplace (including overseas), and Article 74 of the collective agreement provides that the matters agreed by the labor-management council shall have the same effect as the collective agreement.

(c) Markets:

If a so-called dismissal to dismiss a worker due to a false company's managerial necessity, it shall be recognized that the dismissal has objective rationality and social reasonableness in comprehensive consideration of all the circumstances, including whether it was urgent for management necessity, whether the employer has made a considerable effort to avoid dismissal, whether the employer has selected a person subject to dismissal in accordance with objective and reasonable standards, and whether the worker has been faithfully consulted with the labor union or the worker, etc. In addition, it shall be recognized that the dismissal has objective rationality and social reasonableness. The urgent managerial necessity here is not limited to cases for avoiding the company's bankruptcy, and if it is deemed that there is an objective rationality in terms of personnel reduction, it shall be deemed that there is an urgent managerial necessity (Supreme Court Decision 94Da52119 delivered on December 22, 1995).

Therefore, in light of the requirements for layoff, the layoff in this case is deemed to be dismissed.

First, as in the above recognition, since the equipment business office of the intervenor company separates human and material facilities from other business offices of the company and operated in the form of independent debt collection without exchange of workers, it does not necessarily take into account the overall management situation of the intervenor company as alleged by the plaintiffs, and if the above equipment business office reduces surplus manpower to resolve the managerial difficulties caused by the deficit that occurred continuously since 190, there is an urgent managerial necessity, and as long as 124 employees were selected as the person subject to layoff due to urgent managerial necessity in the instant layoff, it cannot be said that the urgent managerial necessity has ceased to exist even if 112 of them were retired by the method of voluntary retirement.

Second, as in the above recognition, if the above equipment office discontinues new employment since 1990, and the surplus personnel are paid wages in the workplace or the atmosphere, it shall be paid retirement consolation benefits by providing voluntary retirement. If the labor union selects a person subject to layoff through labor-management consultation several times on the ground that it is difficult for workers to expect the effect of job placement training in the labor union to establish and implement the job placement training plan even at the time of the instant layoff, on the ground that it is difficult for the labor union to prepare and implement the job placement training plan, it shall be deemed that the intervenor has made every effort to avoid the dismissal, and it shall not be deemed that the intervenor has not made every effort to avoid the dismissal because the plaintiffs selected as the person subject to layoff have not been transferred

Third, according to the above facts, the reduction of the number of employees on January 18, 1993 is not a layoff, but a recruitment for retirement applicants, and as far as possible, it is set the criteria of 50 years of age to give priority to the elderly workers. Meanwhile, in the case of layoff in this case, it is relatively difficult to find the possibility of job placement, and the criteria for the selection of the persons subject to the short-term service in the order of short-term service workers to protect the long-term workers with a high contribution by the company. In the case of the selection of short-term service workers, all of the job placement days of those who participated in the employment after overseas employment shall be returned to the base of the first job entry date, and accordingly, a short-term service workers was selected. However, the plaintiff Lee Jae-in was a person for whom six months have passed after the final return of Korea and was considered to be the date of employment of the above plaintiff, so the criteria for selection

Fourth, like the above recognition, a branch has been established in accordance with the Labor Union Management Rules of the Intervenor Company Labor Union and dealt with the special labor relations of the above equipment and business offices through labor-management consultation. Since the agreed matters of the labor-management council have the same effect as the collective agreement, the instant layoff also can be a matter of consultation with the labor-management council. Therefore, even if the above labor-management agreement was not null and void on February 16, 1995, even if the labor-management agreement was entered into by the labor-management council, it cannot be said that the above labor-management agreement was null and void. In particular, the instant layoff was completed six times from January 26, 1995 to February 16, 1995 by gathering the opinions of the employees of the above labor-management branch and presenting it as an alternative for the labor-management training planned by the Intervenor company. Thus, it was concluded at the end of the labor-management consultation with the labor-management union.

Therefore, the dismissal dismissal in this case is an objective rationality and social reasonableness by satisfying the requirements of dismissal dismissal, and thus the dismissal disposition against the plaintiffs is justified and therefore the review decision in this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the decision of this case is unlawful, and it is dismissed, and the costs of the lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

Judges Shin Jae-sung (Presiding Judge)