[2] Where a collective agreement, etc. provides prior agreement but it can be deemed that the employer’s personnel disposition without agreement with a trade union is valid

[3] The case holding that, in case where Gap company's collective agreement provides that the labor union shall agree in advance with the union on the appointment, dismissal, movement, education, etc. of labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union labor union

[2] In cases where an employer’s prior consent or consent of a trade union is required when taking personnel dispositions, or where a collective agreement provides for personnel dispositions in light of the agreement with a trade union by holding discussions on personnel dispositions, a personnel disposition without going through such procedures should be deemed null and void in principle. However, even if a prior agreement clause is established, the employer’s right to personnel management cannot be exercised only when the trade union consents or agreement is required, and where the trade union has abused the prior agreement right or renounced the exercise of the prior agreement right, a personnel disposition without such agreement should also be deemed valid. Here, when a trade union abused the prior agreement right, the trade union’s abuse of the right to personnel management means a case where there is a serious act of distribution on the part of the trade union, which led to the employer’s defect in the procedure due to such act, and the necessity and rationality of the personnel disposition is objectively obvious, and the employer has made a good effort for the prior agreement with the trade union, but the trade union’s failure to reach the prior agreement by opposing

[3] The case holding that in a case where Gap company notified the worker Eul who is the executive body of the labor union without prior agreement with the labor union in the collective agreement of Gap company, as to the personnel management including appointment, dismissal, movement, education, etc. of the labor union, it shall be interpreted that the collective agreement provides that the labor union shall agree in advance with the labor union in order to prevent any obstacle to the normal activities of the labor union in the course of arbitrary exercise of personnel rights by Gap company's personnel management, and that the "retirement" in this case means the personnel management disposition that terminates the labor contract with the labor union between the union and the union. Thus, although the company Gap company's failure to reach prior agreement with the labor union in the course of layoff cannot be deemed as having satisfied legitimate dismissal procedures, it is objectively obvious that the above layoff is necessary and reasonable in light of all the overall circumstances, and even if Gap company made efforts to reach the agreement on layoff and layoff, it cannot be deemed as null and void for the reason that it does not constitute an abuse of the labor union's prior agreement on the ground that it does not constitute an abuse of industrial action.

1. As to the third ground for appeal

A. Meritorious of legal principles as to urgent administrative necessity

(1) The urgent managerial necessity, which is the requirement for layoff under Article 24 of the Labor Standards Act, includes not only cases to avoid corporate bankruptcy, but also cases where the reduction of the number of employees is objectively deemed reasonable in order to cope with the future crisis in advance (see Supreme Court Decisions 2001Da29452, Jul. 9, 2002; 2004Du9616, Nov. 12, 2004; 2004Du9623, Nov. 12, 2004).

(2) After compiling the evidence as a whole, the lower court determined to the effect that, although the amount of capital increase from March 31, 2006 to March 31, 2006 by the Algerts Group acquired the Defendant in 199 to KRW 8,51.5 billion, the Defendant accumulated the amount of loss of KRW 51 billion from 1999 to the business year 2006. Under such circumstances, the Defendant’s investment rate of the Defendant’s building fell short of the average fixed deposit interest rate in commercial banks due to the change in business district and business environment in surrounding areas, the increase in the construction rate of the building due to the business fluctuations in real estate, etc., the lower court determined to the effect that it was objectively recognized that the Defendant sold the building owned by the Defendant as part of the management rationalization measure and the Defendant’s sales of the building owned by the Defendant and the subsidiaries engaged in the management thereof (hereinafter “Japan Building Management”), it could be objectively acknowledged that it was necessary to assign the Plaintiffs, including the Plaintiffs’ employees to work in the future, to manage the building, in advance.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to urgent managerial necessity, which is the requirement for layoff, as otherwise alleged in the ground of appeal.

B. Meritorious of legal principles as to efforts to avoid dismissal

(1) In making efforts to avoid dismissal, it means that an employer takes all possible measures to minimize the scope of dismissal, such as rationalization of management policies or work methods, prohibition of new employment, temporary retirement, utilization of temporary retirement and voluntary retirement, etc. In addition, the method and degree of such measures may vary depending on the degree of management crisis of the relevant employer, management reasons for which layoff is conducted, business size, personnel status by class, etc. (see, e.g., Supreme Court Decisions 92Da1479, Dec. 22, 1992; 2010Da92148, Mar. 24, 2011).

(2) The court below, as part of the management rationalization measure, explained that the defendant, as part of the defendant's management rationalization measure, was dispatched to the office of daily building management in accordance with the promotion of sale of the building owned by the defendant as part of the management rationalization measure, and the defendant's work in charge of machinery and electricity workers including the plaintiffs who were in charge of the management of the office of machinery and electricity shall be discontinued, and the defendant shall not have employment relations any longer pursuant to the sale of the office of daily building management from March 29, 2007 to April 2, 2007, after having individually interviewed the employees in charge of the office of machinery and electricity, and after having requested the change of the number of employees in charge of the office of temporary retirement allowances by April 24, 2007, the defendant shall receive an application for the change of the number of employees in charge of the office of machinery and electricity management to the maximum amount of 30 months before and after the above 30-month special retirement allowances for the defendant's temporary employees.

In light of the following circumstances and records revealed by the court below, i.e., the defendant's sales process of the daily building management in the Round, in light of the details of the agreement and the situation at the time of sale of the building owned by the defendant, it appears that it would be difficult to reduce the number of workers engaged in machinery and electricity in a step-by-step and demand the Round to succeed to the employment of the reduced number at that time, and considering the circumstances, the above judgment of the court below is just and acceptable in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the efforts to avoid dismissal, which is the requirement for layoff, or omission of judgment, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

A. According to the personnel consultation clause of a collective agreement, if the term “pre-consultation” is used for the personnel affairs of the labor union members, and the term “pre-consultation” is separately used for the personnel affairs of the union members, it shall be deemed that there is a difference between the union members and the union members as to the right to the personnel affairs at the time of the negotiation. The degree of such difference cannot be deemed to be that there is a difference to the extent that the opinion of the labor union is more prudently taken into account in the case of pre-consultation on the union members. Thus, unlike the “pre-consultation” that simply takes into account in the case of consultation with the labor union for the careful exercise of the right to the personnel affairs of the union members, it is reasonable to interpret that the pre-consultation agreement should be made by faithfully exchanging the opinion with the labor union and exercising the right to the personnel affairs of the union, and it is not necessary to interpret that the pre-consultation agreement should be made with respect to the subject of the pre-consultation on the grounds that there is no specific reason for layoff between the labor and management.

Meanwhile, in cases where an employer’s prior consent or consent of a trade union is required, or where a collective agreement provides for personnel disposition in light of the agreement with a trade union by discussing the matters on personnel disposition as above, it shall be deemed as null and void in principle. However, even if a prior agreement provision exists, the employer’s right to personnel management shall not be exercised only when the trade union consents or agreement is required, and where the trade union has abused the prior agreement right or given up the exercise of the prior agreement right, the personnel disposition without such agreement shall also be deemed valid. Here, when a trade union abused the prior agreement right, the term “in cases of abuse of the prior agreement right” shall be deemed to have caused the lack of the employer’s procedure, or the necessity and rationality of the personnel disposition is objectively apparent, and the employer has made a sincere and sincere effort to reach the prior agreement with the trade union, but it shall be recognized in cases where there are circumstances such as the trade union’s failure to reach the prior agreement by opposing the non-permanent agreement without any reasonable ground or reason (see, e.g., Supreme Court Decision 2007Du785717.

B. According to the reasoning of the judgment below, Article 25 of the collective agreement of this case, which applies to the defendant's employees, including the plaintiff 1, provides that "the following personnel rights belong to the company" in paragraph (1) of this case, "the union may present its opinion on the following matters: Provided, That the union may make recommendations for improvement upon objection to the results thereof," and subparagraph 1 of the same Article provides that "the matters concerning the recruitment, appointment, dismissal, movement, commendation, disciplinary action, temporary retirement, reinstatement, and retirement of employees," and Article 25 (2) of the collective agreement of this case provides that "the company shall establish and implement reasonable and reasonable personnel principles and objective and justifiable personnel standards, and shall hold consultation with the union in good faith at the request of the union," and Article 26 of the collective agreement of this case provides that "the person who is an employee of the union, the head of each department, the deputy head of each department, the deputy head of each department (three persons), the president of each district council, the president of each council, the head of each association and the representative of the union of this case shall be notified in advance agreement.

C. We examine the above facts in light of the legal principles as seen earlier.

Article 26 of the collective agreement of this case provides that matters concerning appointment, dismissal, movement, and education among the personnel management of the executive officers of a trade union shall be interpreted as the provision that a trade union shall agree in advance with a trade union in order to prevent a trade union from undermining normal activities of a trade union by exercising the defendant's arbitrary personnel rights. The term "voluntary dismissal" refers to dismissal. Unless there is any evidence to support that the collective agreement of this case or the rules of employment have a separate definition provision concerning the meaning of "retirement" in the collective agreement of this case, etc., it shall be interpreted as a personnel disposition which ordinarily takes place in accordance with the purport of Article 26 of the collective agreement of this collective agreement and the meaning of ordinary terms, such as disciplinary dismissal

In light of such interpretation, it cannot be deemed that the Defendant did not reach an advance agreement with the labor union on July 12, 2007, in violation of Article 26 of the collective agreement, while layoffing Plaintiff 1 on July 12, 2007. However, it is objectively clear that it was necessary for the Defendant to take measures to reduce the number of employees at that time, and efforts to avoid dismissal before it was made. As the lower court decided, the Defendant consulted 26 times on the issue of human resources adjustment to the labor union and its employees from early March 2007 to the early July 200, the labor union and its employees, as well as the labor union’s head office for the purpose of removing the number of employees from the labor union and the labor union’s employer’s use of the labor union’s right to be dismissed by seeking consultation on the methods for avoiding the number of employees from the labor union and the criteria for dismissal, and the Plaintiff 1 also requested for conversion to the labor union’s head office based on its own conversion plan as proposed by the Defendant.

Therefore, the defendant's layoff against the plaintiff 1 cannot be deemed null and void merely because the defendant did not undergo prior agreement with the labor union.

D. The court below erred in finding that there is no procedural defect even if the defendant did not make a prior agreement with the labor union while taking the instant layoff against the plaintiff 1, after interpreting that the subject of prior agreement with the labor union pursuant to Article 26 of the collective agreement of this case is not included in layoffs. However, the court below's conclusion that the above plaintiff's layoffs against the above plaintiff is valid is just.

In conclusion, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the probative value of disposal documents or the interpretation of collective agreement, which affected the conclusion of the judgment.

3. As to other grounds of appeal

As long as the decision of the court below that rejected the plaintiffs' claim on the grounds that the dismissal of this case is valid and that the plaintiffs are not in the defendant's worker's status, the determination of the disciplinary dismissal of this case and whether the dismissal of this case's disciplinary dismissal is unlawful in the course of procedure cannot affect the conclusion of the judgment. Therefore, the argument in the grounds

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)