Plaintiff 1 and two others (Attorney Choi Sung-ho, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Korea Railroad Corporation (Law Firm Barun, Attorneys Cho Ho-chul et al., Counsel for the plaintiff-appellant)

April 8, 2011

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

The decision made by the National Labor Relations Commission on November 9, 2010 on a request for re-adjudication of discrimination 2010 discrimination and correction of discrimination 16 between the plaintiffs and the defendant joining the defendant (hereinafter referred to as the "participating") shall be revoked.

1. Details of the decision on retrial;

A. The intervenor, as the existing Korea Railroad has become a government-invested institution established on December 31, 2004, has 32,000 full-time workers at the Dong-gu Daejeon-gu, Daejeon-gu, and has three vehicle maintenance teams, including the Seoul Regional Headquarters, 12 regional headquarters including Seoul rolling stock maintenance, and the Seoul rolling stock maintenance team, and other stations and places of business.

B. Plaintiffs 1 (hereinafter referred to as “Plaintiff 1”), 2 (hereinafter “Plaintiff 2”), and 3 (hereinafter referred to as “Plaintiff 3”) are all employed by the Intervenor Company on January 1, 2007 as a fixed-term employee whose employment contract period is one year, and Plaintiffs 1 and 2 in the Seoul metropolitan area maintenance team as a vehicle manager, and Plaintiff 3 as a commodity management officer, respectively, renewed the employment contract for a period of one year on January 1, 2008 and January 1, 2009, respectively, and have been converted into an inorganic contract position from January 1, 2010 to the present.

C. Under Article 9(1) of the Fixed-Term Workers Act, the Intervenor Company applied for correction of discriminatory treatment against the Intervenor Company on March 24, 2010 pursuant to Article 9(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-Term Workers Act”), which did not reflect the Intervenor Company’s military service experience in the promotion of salary class, and did not pay long-term service allowances to the Plaintiffs constitutes discriminatory treatment under Articles 2 subparag. 3 and 8 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers. The Seoul Regional Labor Relations Commission decided on June 15, 2010 to the effect that “The Intervenor Company did not reflect the Intervenor’s military service experience in the promotion of salary class is recognized as discriminatory treatment, and thus, the Intervenor Company’s military service experience should be paid the difference of wages reflecting the Plaintiffs’ military service experience in the promotion of salary class during the fixed-term work period, and that the Plaintiffs’ application for correction of discrimination against long-term service allowances does not constitute a discriminatory treatment.”

D. On July 21, 2010, the Plaintiffs served a written judgment on the first instance court of the Seoul Regional Labor Relations Commission as a service of July 21, 2010, and thereafter filed an application for reexamination with the National Labor Relations Commission for the revocation of the determination on the long-term continuous service allowances among the instant judgment of the first instance on July 28, 2010. The National Labor Relations Commission dismissed the application for reexamination on the same ground as the first instance court of October 19, 2010 (hereinafter “instant judgment”).

[Judgment of the court below] Facts without dispute, Gap evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiffs' assertion

If the intervenor company uniformly divided a regular-time and a non-regular worker group with no fixed period of time into a regular-term worker group, and paid a long-term continuous work allowance to the regular-term worker group, and excluded the fixed-term worker from the long-term continuous work allowance, it is used as the criteria for distinguishing the employment of non-regular workers. In such a case, it is "unfavorable treatment" without considering the existence of the realistic comparable worker who works in the same or similar work. Even if it is not a domestic work, the plaintiff 1 and 2 can be regarded as the worker subject to comparison with the non-party 1 (the non-party to the judgment of the Supreme Court) who works in the same or similar kind of work as the contract worker.

On the other hand, the long-term continuous service allowance is a ordinary wage, which is uniformly subject to payment if an employee satisfies certain requirements, and even though the long-term continuous service allowance has the nature of compensation for the employee's contribution, the period of military service irrelevant to the intervenor's work is included in the continuous service period for calculating the long-term continuous service allowance, and rather there exists any inconsistency that the plaintiffs are not included in the continuous service period for the intervenor. In light of the fact that there is any inconsistency that the worker's service period for the intervenor is not included in the continuous service period, with respect to the comparable workers above, when the intervenor is employed for not less than five years including the number of continuous service years, the payment of the long-term continuous service allowance and the payment of the long-term continuous service allowance is discriminatory

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Executive officers and employees of the Intervenor Company are classified into executive officers, general service (class 1 to class 7), and specific service, and both general and specific service are in unlimited contractual workers, and there are fixed-term workers separately.

2) The contents of the Plaintiffs’ employment contract are as follows.

[Attachment 1]

Plaintiff 1 (Plaintiff 1), Plaintiff 2 (Plaintiff 2) (Plaintiff 2), including the decommissioning, transportation, cleaning, cleaning, cleaning, cleaning, etc. of the unit work of the unit work of the department to which the table division belongs included in the main sentence, and Plaintiff 3 (Plaintiff 3) management team goods, cargo, freight and goods, rearrangement, delivery, etc.

3) At the time of filing an application for rectification of the instant discriminatory treatment, Plaintiff 1 and 2 determined the comparable worker as Nonparty 2 and Nonparty 16 (hereinafter “Plaintiff 1 and 2”) who worked in the vehicle manager of the Seoul Metropolitan Area Vehicle Management Body (Class 6) or the vehicle manager (Class 7) who works in the diesel Vehicle Maintenance Team of the Seoul Metropolitan Area rolling stock (hereinafter “Plaintiff 1 and 2”), and Plaintiff 3 as a non-party 1 (hereinafter “Plaintiff 3”).

4) On November 10, 2007, in accordance with the Intervenor’s “Comprehensive Measures for Non-regular Workers by Public Institutions”, the comparable personnel and the Plaintiff 1 and 2 who were employed as an employee for the original fixed-term work and worked as an employee in charge of vehicle management or a commodity management officer, the Intervenor was converted to a inorganic contract worker on November 10, 2007 and worked for the same department as the previous one. The current status of employment of each comparable personnel and the payment of long

Non-party 1 to 27 on May 8, 201 for the long-term service period of non-party 1 to 2 on May 10, 201, "non-party 3 on April 23, 96 or June 298" on April 1, 205, "non-party 4 on March 2, 19 to 4. 5 on March 2, 2008," non-party 1 to 4. 5 on March 2, 200, "non-party 1 to 4. 5 on March 2, 200," non-party 1 to 4. 5 on March 1 to 5, 200," "non-party 2 to 4. 5 on February 2, 197," "non-party 1 to 4. 5 on February 28, 200."

The long-term continuous service allowances for the military service period of the date of conversion into a life-term contract (specific occupation) employment (specific occupation) employment date included in the list contained in the main sentence shall be paid on November 21, 1993 on November 26, 2007.

5) The duties of each comparable person selected by the plaintiffs under the rules on the enforcement of the Participatory Company's Organization Regulation are as follows.

[Attachment 4]

Plaintiff 1, including Plaintiff 1, Nonparty 2, etc., who belongs to the name of the worker subject to comparison in the main sentence, and Plaintiff 3’s simple and minor office work assistance, management of commodities, etc., such as the repair and improvement, operation, maintenance, repair, etc. of guest cars teams of 15 diesel vehicle teams, including

6) The working conditions of the inorganic contract workers, who are the comparable parties selected by the Plaintiffs, are prescribed by the Intervenor Company’s Remuneration Regulations, the Regulations on the Management of Remuneration Regulations, and the Regulations on the Management of Specific Employees. Regarding long-term continuous work allowances, the comparable parties shall be paid at least 70,000 won to the maximum of 150,000 won per month from the beginning of continuous service for at least five years as prescribed in attached Table 6 (Standards for Payment of Allowances) of Article 18(1) of the Remuneration Regulations, and the calculation of the employment period for the payment of long-term continuous work allowances under Article 18(2)2 of the Enforcement Rule of the Remuneration Regulations is made by aggregating the employment period of the former job in the military at the time of calculating the employment period for the payment of long-term continuous work allowances. However, as seen above [Attachment 2], with respect to the fixed-term work period of the comparable parties (for example 1 through 15), it is not included in the calculation of salary years in the attached Table 7 (Based on the career conversion).

7) Working conditions for fixed-term workers, including the plaintiffs, are governed by the Guidelines for the Operation of Fixed-Term Workers of the Railroad Corporation. Accordingly, there is no difference of basic pay (work pay + continuous service pay) between fixed-term workers and inorganic contract workers to whom the Remuneration Regulations apply. However, the above Guidelines did not stipulate the basis for the payment of long-term continuous service allowances and the inclusion of military service experience in the salary class. As seen above, the Plaintiffs’ military service experience was reflected in the salary class during the period of fixed-term service from July 1, 2007 to December 31, 2009 pursuant to the first order of correction in the Seoul Regional Labor Relations Commission of this case.

8) Since the Plaintiffs were converted into a indefinite contract position as of January 1, 2010, it was possible to receive a long-term continuous service allowance under the application of the Intervenor Company’s remuneration regulations. In accordance with the Intervenor Company’s policies, the Intervenor Company’s continuous service allowance may be paid from January 1, 2010, which was converted into a regular position to the period of service from January 1, 2010 to the period of service (attached Table 5). On the other hand, as alleged by the Plaintiffs, if the Plaintiffs were reflected in the period of service for calculating the long-term continuous service allowance up to the period of service for calculating the fixed-term service allowance, the Plaintiffs may receive the long-term continuous service allowance that has not been paid up to the date of April 2009 or June 2009, and may receive the continuous long-term service allowance in the future.

[Attachment 5]

Plaintiff 1 (Plaintiff 1) on April 12, 207, “83.4. 14. 8. 14. 2, 2009, Plaintiff 2 (Plaintiff 2) on April 3, 2009,” and “Plaintiff 3 (Plaintiff 3) on April 24, 2009, 209, on April 24, 2009,” as of April 24, 2009,” when adding up the service period of the military service and the service period for the period of enlistment as of September 5, 200, which are included in the list classification in the main sentence, “Plaintiff 3 (Plaintiff 3)” on September 24, 91.

【Ground for recognition】 The fact that there is no dispute, Gap's 1 through 7, and 12, and the purport of the whole pleading

D. Determination

Discriminatory treatment for fixed-term workers is based on Article 2 subparag. 3 and Article 8(1) of the Fixed-term Workers Act, and when the business or workplace concerned is in accordance with the same or similar type of business, ① “in comparison with indefinite contract workers engaged in the same or similar type of business,” ② “unfavorable treatment in terms of wages and other working conditions,” and ③ “in the absence of reasonable grounds” means “in the absence of such grounds.” hereinafter the above requirements are examined.

1) As to the necessity or appropriateness of the comparable personnel of the instant case

The Plaintiffs asserted to the effect that there is no need to select an comparable worker in cases of treating fixed-term workers and indefinite contract workers disadvantageously on the sole ground that they are uniformly divided into fixed-term workers and fixed-term workers. However, Article 8(1) of the Fixed-term Workers Act provides that “No discriminatory treatment shall be given compared to workers who entered into an employment contract without a fixed period of time engaged in the same or similar kind of work on the ground that they are fixed-term workers.” As such, the Plaintiffs’ assertion is without merit.

Therefore, it is necessary to examine whether the comparable personnel selected by the Plaintiff is appropriate. First, with respect to Plaintiff 1 and 2, the duties of Plaintiff 1 and 2 are “rolling stock maintenance support” under the labor contract. Of the compared personnel, the duties of Plaintiff 1 and 2 are “rolling stock maintenance support and maintenance support of machinery and equipment” under the rules on the implementation of the Regulations on the Regulations on the Implementation of Regulations” of the Intervenor Company, and it does not seem to have any particular difference in the duties on the business schedule. ② In the course of performing the duties such as passenger car repair, repair, etc., the duties are made up of three to four persons, and the division division division chief is mainly responsible for the employees of Plaintiff 1 and 2, and the other assistant chief is composed of the employees of Plaintiff 7 and class 6-class vehicle managers, who are the comparable workers, and the other assistant chief is composed of the employees of Plaintiff 1 and 2, and there seems to be no specific difference between Plaintiff 2 and the compared personnel in light of the fact that other labor members could not promote the decision-making.

On the other hand, with respect to Plaintiff 3, the duties of Plaintiff 3 are “goods shop, train, and reorganization” under the labor contract, and Nonparty 1, the comparable person, is “goods shop, train, reorganization, and work incidental thereto” under the Intervenor Company’s Operational Rules on Specific Staff Members, and it does not seem to have any particular difference in the duties in the work schedule. ② Nonparty 1, the comparable person, as Plaintiff 3, is a fixed-term worker, is converted to an indefinite contract position while performing the duties of the commodity management officer, and only Nonparty 1, the comparable person, as Plaintiff 3, is performing the duties like the previous duties. In light of the above, the selection of the comparable person as Plaintiff 3 is also appropriate.

2) As to whether “unfavorable treatment in terms of working conditions, such as wages” exists

There is no doubt that the payment of long-term continuous service allowances is related to working conditions, such as wages. However, in order to be "unfair treatment" in this case, there is a difference between whether or not long-term continuous service allowances are paid or at the time of payment on the ground that it is a fixed-term worker. As seen above, as seen in the above facts, the plaintiffs are also converted into indefinite service and are expected to receive long-term continuous service allowances in the future. As such, the necessity of "unfair treatment" is that if the long-term continuous service period is included in the continuous service period to calculate the long-term continuous service allowances, the payment of long-term continuous service allowances should be delayed from the time when the long-term continuous service period is included in the continuous service period to calculate the long-term continuous service allowances.

Workers Nos. 1 through 15 of the year of [Attachment 2] among the comparisons of Plaintiffs 1 and 2, are converted from the initial fixed-term workers to the fixed-term workers on November 10, 2007, and the period of military service is included in the continuous service period for calculating the long-term continuous service allowances, but it is the same as Plaintiff 1 and 2 that the fixed-term service period is not included in the above continuous service period. Therefore, it is difficult to view Plaintiff 1 and 2 to have any unfavorable treatment compared to the above comparisons in the payment period of the long-term continuous service allowances. However, since the comparisons of Plaintiffs 1 and 2 were included in the total continuous service allowances as the 6th class manager who was the initial full-time workers in the calculation of the long-term continuous service allowances, it can be recognized that Plaintiff 1 and 2 received unfavorable treatment compared thereto.

Meanwhile, the same applies to Nonparty 1, who is the subject of comparison, is not recognized as continuous service period. Therefore, it is difficult to recognize that Plaintiff 3 received unfavorable treatment compared to the subject of comparison ( even if it is recognized that Plaintiff 3 received unfavorable treatment, there is a reasonable ground for the treatment that is considered below, as seen below).

3) Whether there is a reasonable ground

Whether there is a reasonable ground for unfavorable treatment depends on whether it is a difference in wages and working conditions according to the characteristics of short-term employment in fixed-term work, and whether it is a reason irrelevant to such characteristics or reasons. Taking into account the following circumstances recognized by the facts and the purport of the entire arguments, it is difficult to view that the Intervenor’s inclusion of the total period of service in the calculation of the long-term continuous service allowance for workers in the continuous service period, but it is unreasonable to regard that the fixed-term service period is not included in the continuous service period for those who are converted from fixed-term employment in the employment period like the Plaintiffs as the Plaintiffs.

○ Although the concept or scope of a long-term continuous service allowance is not limited under the Remuneration Regulations, in light of the fact that the name of the long-term continuous service allowance itself and the requirements for the payment of the long-term continuous service allowance are differentiated by each continuous service period from five to twenty-five years, it seems that it is intended to induce workers’ long-term service or has the characteristic of compensation for meritorious services for long-term workers. Accordingly, it is inconsistent with the instant long-term service that takes the form of short-term employment to be entered into a contract on a yearly basis.

○ The Plaintiff asserts that a fixed-term worker should receive a benefit from long-term continuous service allowances for a period of five to twenty-five years in the event of continuous renewal of a contract. However, this is not consistent with the purport of Article 4(1) of the Fixed-term Workers Act that allows a fixed-term worker to be employed for a period of up to two years, and in the case of the Plaintiffs, it is difficult to accept it as it is, in light of the fact that the fixed-term employment period itself is only three years.

○ The Plaintiff asserts that it is unreasonable to add up the period of military service irrelevant to the company to the period of service for the company and not including the period of service for the company. However, this is only an incidental result from the inclusion of the period of service in the period of service for salary class, and it is difficult to deem that it differs from the nature of the long-term continuous service allowance for this reason.

4) Sub-committee

Although there are somewhat different differences in the recognition of "unfavorable treatment", it cannot be said that there is no discriminatory treatment in the decision of the reexamination of this case, as alleged by the plaintiff, in the decision of the reexamination of this case.

3. Conclusion

Thus, the plaintiffs' claim of this case is dismissed as it is without merit.

[Attachment Form 7]

Judges Lee Jae-hee (Presiding Judge)

Note 1) Frush means those (No. 16,17 No. 17 per annum of Table 2) who had previously been regular workers among the plaintiffs 1 and 2 compared persons.

2) However, if the period of military service is added to the continuous service period, the period of military service satisfies the requirements of five years in April 2009 or in June 2009 as the reflective effect, as seen earlier.