Jin-gu Agricultural Cooperatives (Attorney Park Jong-young, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and 2 others (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

November 13, 2008

Seoul Administrative Court Decision 2007Guhap31966 Decided May 16, 2008

1. All appeals filed by the Intervenor against the Defendant are dismissed.

2. The costs of appeal are borne by the Intervenor joining the Defendant.

1. Purport of claim

On July 24, 2007, the National Labor Relations Commission revoked the new decision made on July 24, 2007 between the plaintiff and the defendant joining the defendant with respect to the case of unfair suspension of duties, unfair suspension of duties, unfair standbys, or application for reexamination on unfair dismissal.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows, and thus, the reasoning for the judgment of the court of first instance is the same as the part concerning the reasoning for the judgment of the court of first instance, and thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

A. Correction to the effect that “no duty shall be assigned” is “no duty shall be assigned” on the 7th judgment of the first instance court.

(b) modify, from the 10th below, the contents of the 5th 6th Manopo-ho

“(The above six persons are those whose termination date of the immediately preceding employment contract is earlier than the day immediately preceding the first employment date due to any circumstance, and the Plaintiff Union entered into a short-term employment contract with the above six persons and the day preceding the first employment date, and notified the above six persons that each of the above six persons is the last renewed employment contract).”

C. From No. 14 to No. 5, in relation to the loans extended to Nonparty 3, Nonparty 3 had been found to be in the same household with Nonparty 4 who had already been granted 2.2 billion won from the Plaintiff Union. As such, in relation to the loans extended to Nonparty 3 from Nonparty 5, Nonparty 3 had been able to confirm Nonparty 3’s property, occupation, etc. and closely examine whether it conflicts with the restriction on the limit on the loans extended to the same person as the Plaintiff Union’s credit operation rules provided for in the Plaintiff Union’s credit operation rules, and carried out the loans without such confirmation or review procedures.

(d)on pages 15, 13 add to:

The plaintiff's personnel regulations stipulate that "if it is necessary to suspend duties in order to prevent and control the expansion of the case," the plaintiff's personnel regulations stipulate that "the above loans that the plaintiff used as the ground for the suspension of duties for the above participant have occurred two to six years from the time of the suspension of duties, and all the above loans have been in progress or auction in order to secure claims, and there was no possibility that the above participant will be recovered particularly since the suspension of duties and standby order for the above participant was not extended at the time of the suspension of duties. Therefore, the above participant 1 asserts that the suspension of duties and standby order for the above participant is unfair, so it is difficult to prevent the occurrence of additional accidents and losses by preventing the expansion of the case, as alleged by the above intervenor, and it cannot be interpreted only by preventing the expansion of the case's right, as well as by preventing further expansion of the case's loan and damages, it is not necessary to interpret the above plaintiff's provision that the above intervenor's suspension of duties and standby order for the suspension of duties should be excluded from the above participant's damages.

In addition, the above intervenor asserted that each of the above loans could not be a legitimate ground for suspension of duties and standby order since the plaintiff had received non-party 3 and 2's non-party 2's non-party 3's decision regarding the above loans. Thus, in relation to the loans extended to the non-party 3, the above intervenor's non-party 3 could not be a legitimate ground for suspension of duties and standby order. Thus, although there is a circumstance that the above intervenor could be contrary to the restriction on the loans extended to the non-party 3, it can be viewed that the above intervenor's execution of the loans without confirmation or examination as to the above loan extended to the non-party 2, and in relation to the above loans extended to the non-party 2, as long as it is confirmed that some of the loan documents handled by the above intervenor were printed out after the date of the loans, there is considerable reason to suspect that the plaintiff did not handle the loans in accordance with the above legitimate procedure. Accordingly, the plaintiff's suspension of the above intervenor's duties, and it is not necessary to accept the above plaintiff 2's non-party 3's decision.

(e) Deletion of parallel 6 through 14.

(f) a modification to paragraphs 1 through 19 of Chapter 18, as follows:

C) Whether the intervenor 2 and 3 are entitled to have a legitimate expectation for the conclusion of the re-contract

(1) In light of the following, the aforementioned intervenors, regardless of the duration of the contract, have a legitimate expectation that Article 24 of the collective agreement guaranteeing the continuous employment regardless of the duration of the contract is related to “working conditions” and Article 24 of the collective agreement regulates both an employer and an employee even if the collective agreement is invalidated, so they may continue to work for more than five years, regardless of whether the duration of the continuous employment exceeds five years. The aforementioned intervenors have renewed their employment contract for more than five consecutive years between the Plaintiff and the Plaintiff, and other non-regular employees belonging to the Plaintiff have continued to work for more than five years despite the provision on the restriction of the continuous employment period for more than five years, and the duties performed by the said intervenors are ordinarily necessary in the Plaintiff’s workplace. In full view of the following, even if the contract period stipulated in the above intervenors’ employment contract is not just in the form of the contract period, at least the above intervenors have a legitimate expectation right to enter into the contract, barring special circumstances even after the termination of the contract period, it constitutes abuse of rights as to the pertinent Intervenor’s unilateral termination of employment contract.

As to the allegations related to Article 24 of the collective agreement among the above intervenors' arguments, even if the collective agreement is invalidated, the part concerning wages, retirement allowances, hours of labor, and other individual labor conditions shall still remain as the content of the employment contract of the worker under the application of the collective agreement, unless the new collective agreement, the rules of employment are concluded or prepared, or the consent of individual workers is obtained (see Supreme Court Decision 2007Da51758, Dec. 27, 2007). However, Article 24 of the collective agreement shall be deemed to be a provision regarding the "period of employment contract" of the contract workers or part-time assistant workers under its language and text, and it shall be deemed that the term of the employment contract is limited to the term of the employment contract, and it does not constitute the "term of employment contract" under the Labor Standards Act, which refers to the "term of employment contract for workers' treatment, such as wages, hours, welfare, dismissal, etc." (see Supreme Court Decision 200Da5375, Aug. 29, 1996).

Article 2(1) of the former Labor Contract Act provides that “The term of employment contract for an intervenor who has been appointed shall be extended to an intervenor who has not entered into an employment contract within 2 years after the expiration of the term of employment.” However, the term of employment for an intervenor who has not entered into an employment contract within 4 years after the expiration of the term of employment shall be extended to an intervenor who has not entered into an employment contract within 2 years after the expiration of the term of employment.” However, the term of employment for an intervenor who has not entered into an employment contract within 5 years after the expiration of the term of employment shall be extended to an intervenor who has not entered into an employment contract within 0 years after the expiration of the term of employment.” However, the term of employment for an intervenor who has not entered into an employment contract within 2 years after the expiration of the term of employment for an intervenor who has not entered into an employment contract in 4 years after the expiration of the term of employment contract, and the term of employment for an intervenor who has not entered into an employment contract within 5 years after the expiration of the term of employment contract.”

x) Furthermore, even if the above Intervenor’s right to expect renewal is acknowledged, such right to expect renewal is not necessarily possible, but can be re-contracted “where the above Intervenor’s high-quality rating point is above an average of 70 points.” The above Intervenor’s scores less than an average of 70 points from April 4, 2005 to March 4, 2006 in high-quality rating, each of which was conducted by the above Intervenor’s contract officers and part-time assistants, are fair and reasonable in terms of the evaluation items or method of calculating the evaluation points. However, it is difficult to view the Plaintiff’s performance rating criteria for the above Intervenor’s high-quality rating to be conducted by the above Intervenor’s employees who participated in the above high-quality rating as reference materials for the above Intervenor’s participation in the contract from 200 to 205.26 times, it is difficult for the Plaintiff to objectively consider that the above Intervenor’s participation in the contract did not provide such reference materials to the Intervenor’s 20th of May 26, 20005.

(v) The above part of the Intervenor’s above assertion cannot be accepted (On the other hand, the Intervenor 2, while Article 12(2) of the Plaintiff’s Rules on the Management of Contract Employees provides that “if the contract is not renewed, it shall be notified 30 days prior to the expiration date of the contract," the Plaintiff shall notify the contract termination to the above Intervenor whose contract termination expires as of October 9, 2006, and as long as the Plaintiff’s notification on the expiration of the contract to the above Intervenor is null and void in violation of the above management regulations, the above part of the Intervenor’s status as an employee shall be terminated automatically upon the expiration of the contract term stipulated in the employment contract, and it shall not be terminated by the Plaintiff’s notification on the expiration date of the contract. Accordingly, even if the Plaintiff did not notify the contract 30 days prior to the expiration date in violation of the above management regulations, it cannot be accepted as it did not affect the termination of the contract term of the above Intervenor’s employment contract).

2. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the intervenor's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yu Jong-Un (Presiding Judge)