Plaintiff (Appointed Party)

Busan Development Co., Ltd. (Attorney Go Sung-sung et al., Counsel for the plaintiff-appellant)

April 29, 2011

1. The defendant,

A. Payment of 3,426,90 won to the Plaintiff (Appointed Party) and 5% per annum from January 29, 201 to May 20, 201, and 20% per annum from the next day to the day of full payment;

(b) 4,487,50 won to 2, 3,155,50 won to 3,155,500 won to 3,150 won to 3,938,800 won to 4,67,100 won to 6, 3,096,000 won to 7, 3,245,800 won to 8, 3,155,500 won to 9, 3,514,100 won to 9, 100 won to 3,151,90 won to 11,3,062,00 won to 3,245,80 won to 12,3,520 won to 13,520 won to 6,900 won to 13,520 won to 90% to 19,200 won to 19.

2. The plaintiff (Appointed)'s remaining claims are dismissed.

3. Of the litigation costs, 10% is borne by the Plaintiff (Appointed Party), and 90% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff (appointed party) 5,101,970 won with 20% interest per annum from the day following the delivery date of a copy of the application for modification of the purport and cause of the claim of this case to the day of complete payment.

1. Basic facts

A. Dismissal of the defendant (appointed party) and appointed parties

The plaintiff (Appointed Party) and the designated parties (hereinafter referred to as the "Plaintiffs") are the defendant's workers who entered into each employment contract with the defendant who operates the female botanical gardens (the date of each plaintiff's employment is the same as the stated in the corresponding column in attached Form 2).

On February 18, 2008, the Defendant dismissed the Plaintiff (Appointed), 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 on July 1, 2008, 12 on August 8, 2008, and 13 on February 12, 2009, respectively (hereinafter collectively referred to as “each of the instant dismissal”).

B. The plaintiffs' application for unfair dismissal and reinstatement

The plaintiffs filed an application for remedy against unfair dismissal with the Jeju Special Self-Governing Province Regional Labor Relations Commission, and the above Labor Relations Commission issued a remedy order ordering the plaintiffs to return the plaintiffs to their original position within 30 days from the date of service of the written determination and to pay the amount equivalent to the wages they could have received if they were normally worked during the period of dismissal, and the National Labor Relations Commission ruled that the defendant's application for remedy was dismissed. Accordingly, the defendant filed a lawsuit for cancellation of the appeal court against unfair dismissal (Seoul Administrative Court 2008Guhap3794, 2008Guhap37794, 2065, 2008Guhap29646, 209Guhap29646), but the dismissal decision was sentenced, and the defendant's appeal was dismissed (On the other hand, the defendant filed a lawsuit for cancellation of the judgment against the appointed person's 12).

On August 6, 2010, the defendant returned the plaintiffs according to the above ruling and ruling.

C. Payment of wages during the period of dismissal by the defendant

After the Plaintiffs’ reinstatement, the Defendant paid basic pay, continuous service allowance, food expenses, job allowances, adjustment allowances, sales allowances, household stability expenses, public-private activity expenses, and plant incentives that the Plaintiffs failed to pay to the Plaintiffs from each of the instant dismissal days until the date of reinstatement (hereinafter referred to as “the instant dismissal period”). The amount paid is as specified in the corresponding column of attached Table 2.

D. Requests for the notification of the plaintiffs' annual leave days and the defendant's response

On September 12, 2010, pursuant to Article 61 of the Labor Standards Act, the Defendant announced that the annual paid leave occurred in the year 2009 should be mandatorily used within 2010. On October 18, 2010, the Korean Association of Workers' Unions of the Democratic Labor Union of Labor Unions and Public Service Workers' Group of the Korean Association of Workers' Unions of Public Service Workers' Union, which the Plaintiffs joined as its members, the Plaintiffs failed to use the annual paid leave. Thus, the Defendant requested to notify the number of days during which the annual paid leave occurred. However, the Defendant requested that the annual paid leave be notified. The Defendant did not have any number of days during which the Plaintiffs worked in the year 2009.

E. Full-time service on the Plaintiff (Appointed Party) Trade Union

From February 1, 2006 to September 30, 2007, the Plaintiff (Appointed Party) transferred to the president of the Jeju Regional Tourism Industry Trade Union, a superior agency of the branch of the Female Regional Tourism Industry and Trade Union, which is the labor union in the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2-2, Eul evidence 3-1, the purport of whole pleadings

2. Determination on the claim

A. Relevant provisions

Attached Table 1.

(b) Claim for the payment of annual allowance and livelihood stabilization allowance;

1) The occurrence of an obligation to pay wages and allowances

According to the above facts, each of the dismissals in this case by the defendant against the plaintiffs are null and void, and since the plaintiffs failed to provide labor to the defendant due to the defendant's improper dismissal, the defendant is obligated to pay the plaintiffs wages or allowances that could have been paid if the plaintiffs actually worked during the period of dismissal. However, as seen above, since the plaintiffs received all the remaining wages or allowances except the annual salary and the living stabilization allowances at issue in this case from the defendant, they are examined only as follows.

(ii) the method of calculating annual allowances and livelihood stabilization allowances;

According to Article 18 of the Defendant’s collective agreement, attached Table 3 of the Employee Management Regulations, annual allowances for the Plaintiffs are calculated as “ordinary wage 】 1/209 x 8 hours x unused number of days,” and livelihood stability allowances as “ordinary wage 】 0.06521 x number of days unused per year.” Thus, the annual leave days, the scope of ordinary wage x number of days unused per year, and the standard period of ordinary wage should be determined as a premise. Accordingly, the following is examined in the order of the calculation method of annual leave days, the standard period of ordinary wage.

A) Method of calculating the number of annual leave days

Article 60(6) of the Labor Standards Act and the administrative interpretation of the Ministry of Labor (hereinafter “standards for determining whether to work hours and to work hours when granting a annual paid leave,” and Article 60(7) of the Labor Standards Act provide that the period of suspension of work due to occupational accidents and the period of maternity leave shall be included in the calculation of the number of contractual working days and such period shall be deemed to have worked. According to the administrative interpretation of the above Ministry of Labor, the period of suspension of work due to reasons attributable to the employer and the period of childcare leave under the Equal Employment Opportunity Act shall be excluded from the calculation of the number of contractual working days. In this case, the number of days of annual paid leave shall be calculated by multiplying the number of days calculated by the attendance rate for the remaining number of contractual working days other than each of the above periods by the remaining

However, the above provision does not mention whether the dismissal period should be included in the fixed working days or the working days when the worker is dismissed as in the above case (On the other hand, the defendant asserts that the dismissal period is included in the above "period of suspension due to the reasons attributable to the employer" even if the worker is dismissed, but it is difficult to interpret the dismissal period as the "period of suspension", and it is difficult to accept the above argument. Thus, the annual paid leave system under Article 60 of the Labor Standards Act is intended to guarantee the worker to pay a certain number of days of paid leave in addition to the holidays, it cannot be considered disadvantageous to the worker in calculating the work rate for the period when the worker is unable to work due to the reason attributable to the employer. Therefore, the period when the worker was dismissed due to the dismissal of the employer's failure to work should be considered to be counted in the total fixed working days and the working days (see the Seoul Administrative Court Decision 2006Gu4582, Jul. 26, 2007; the above dismissal of appeal is finalized).

Meanwhile, in addition to the whole purport of the arguments in subparagraph 5-2 through 16 of the evidence Nos. 5-2, the plaintiff (appointed party) and the appointed party 9 from January 1, 2008 to February 17, 2008 of the same year immediately before the dismissal of each of the instant cases were absent from office on one day, and the appointed party 2 from two days to two days. The selected party 3, 4, 5, 6, 7, 8, 10 are the number of days of absence from office without permission; the selected party 1, 12, and 13 are the number of days of absence from office; the appointed party 1, 12, and 13 are the date of each dismissal from office; the appointed party 1,12, and 12, from January 1, 2008 to the date immediately before the date of dismissal from office without permission; and the designated party 10,13,000 days from January 1, 208 to the date of dismissal.

According to the above standards, all of the plaintiffs are at least 80% of the attendance rate in 2008 and 2009 including the period of dismissal (the attendance rate in 2008 and the attendance rate in 2008) (the attendance rate in 2008 exceeds 80%, and in case of 2009, the attendance rate in 302 and the attendance rate in 304 days) exceeds 80%; in case of 2009, all of the plaintiffs are absent, 10% of the attendance rate in 10%; in case of 2009, there is no absence of attendance rate in 10%; in case of the plaintiffs, the number of days of statutory annual leave in 2008 and 209, the number of days of annual leave in 209 are as stated in the corresponding column of attached Table 2.

B) Calculation of ordinary wages

(1) Determination criteria for ordinary wages

If a certain wage constitutes ordinary wage, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wage, it does not constitute ordinary wage if it is not a fixed wage, such as whether it is regularly or uniformly paid, or whether it is paid or not depending on the actual work performance. Here, a uniform payment includes not only the payment to all workers, but also the payment to all workers who reach a certain condition or standard. The term “specified condition” in this context refers to not only the payment to all workers, but also the payment to all workers who have reached a certain condition or standard. In light of the concept of ordinary wage to calculate “fixed average wage” (see, e.g., Supreme Court Decisions 2003Da10650, Apr. 22, 2003; 2004Da4174, Sept. 21, 2005).

Furthermore, ordinary wages guarantee the minimum level of average wages as well as the calculation basis of premium or advance notice of dismissal for overtime hours, night and holiday work as prescribed by the Labor Standards Act, and if each of the above allowances recognizes the validity of the agreement to exclude various allowances to be included in ordinary wages in light of the nature of the agreement between the labor and management as long as there is no additional rate or minimum standard other than the number of payment days, it shall be deemed that each of the above provisions recognizes the validity of the agreement to exclude them from ordinary wages, it shall be paid premium for overtime, night and holiday work, and it shall be dismissed that the provision that the dismissed worker shall pay premium ordinarily for a certain period of time. Therefore, the agreement between the labor and management that excludes the allowances to be included in ordinary wages under the Labor Standards Act from ordinary wages is null and void as a contract that determines the working conditions that do not meet the standard under the same Act (see Supreme Court Decision 93Da5697 delivered on May 24, 199, etc.).

(2) In the instant case:

In accordance with the above legal principles and facts, each of the plaintiffs' arguments shall be examined as to whether it constitutes ordinary wages. The defendant's employee management regulations (amended by April 19, 2005, No. 4-1, No. 4-2), Article 17 of the collective agreement (Evidence No. 4-2, Jun. 9, 200), and Article 17 of the collective agreement (Evidence No. 4-2, No. 4-2) recognize that it constitutes ordinary wages, but the remaining allowances are not recognized as ordinary wages. However, in light of the nature of the above, the agreement between labor and management to exclude allowances to be included in ordinary wages under the Labor Standards Act from ordinary wages is null and void. Thus, in addition to the scope of ordinary wages under the above employee management regulations and collective agreement, allowances to be included in ordinary wages under the Labor Standards Act should be included in ordinary wages. Accordingly, we examine whether the remaining allowances are included in ordinary wages

In the case of job allowances, adjustment allowances, sales allowances, household stability expenses, expenses, and plant grants, which the Plaintiff asserts that they should be included in ordinary wages, constitute “regularly paid benefits” which are paid a certain monthly amount (in the case of plant grants, only 10 months shall be paid except six months, nine months, and 10 months shall not be deemed to be illegal benefits). Even according to the Defendant’s assertion, it constitutes “regularly paid benefits” rather than depending on actual work performance and payment amount, and constitutes “all workers meeting certain conditions or standards,” and thus constitutes “regular allowances.” However, among each of the above allowances, the amount of job allowances (the amount of 30,00 won per month for class 5 or lower employees), adjustment allowances, sales allowances (the amount of 40,00 won per month for female employees), household stability expenses (the male employee shall be 75,00 won per month, and female employees shall be 105,000 won per month), and thus, it cannot be deemed to have satisfied all of the above ordinary wages requirements.

C) The ordinary wage standard time

Where an employee provides labor without using an annual paid leave that occurred in compensation for the work of the year immediately before the previous year, the right to claim the annual paid leave allowance may arise on the first day of the year following the year (the year concerned), which is the year in which the right to claim the annual paid leave is extinguished. In such a case, the standard time of ordinary wages to calculate the right to claim the amount of the annual paid leave is the last month of the year in which the annual paid leave is available. Therefore, the standard time of ordinary wages to calculate the right to claim the amount of the annual paid leave in 2008 and 2009 are December 209 and December 2010, respectively.

3) Sub-determination

Therefore, if the calculation of annual leave allowance and livelihood stabilization allowance is based on the calculation method of annual leave and ordinary wage as seen earlier, it is as shown in the corresponding column as claimed by the Plaintiffs. In addition, as seen above, even though the Plaintiffs notified the number of days of annual leave to use annual leave in accordance with the Defendant’s annual leave use policy, as long as the Defendant respondeds that the annual leave does not occur, it cannot be said that the Plaintiffs’ annual leave and their right to claim for livelihood stability allowance are extinguished since it constitutes a case where the Plaintiffs could not use annual leave due to reasons attributable to the employer under the proviso of Article 61(7) of the Labor Standards Act.

(c) Demanding payment of the difference in salary grade;

1) Plaintiff (Appointed Party)’s assertion

The Plaintiff (Appointed Party) did not raise a salary grade for the Plaintiff (Appointed Party) during the period of transfer to the president of the Jeju Regional Tourism Industry Trade Union, a superior organization to a trade union. On the contrary, the chairman of the branch of the Jeju Provincial Tourism Industry Workers' Union, which is the Defendant’s trade union, was put to a salary grade during the previous period. However, there was no reason to deal with the full-time officer of the superior organization of the union and the pertinent full-time officer of the union. Thus, the Defendant is obligated to pay the amount in attached Form 3, which is an amount equivalent to the difference between wages and wages actually paid during the previous period, from February 18, 2008 to August 5, 2010.

2) Determination

According to Article 24 of the Trade Union and Labor Relations Adjustment Act, the full-time officer of a trade union has the status as an employee in accordance with the basic labor-management relations, but is similar to the employee in a state of temporary retirement in that he/she is exempted from the obligation to provide labor and is also exempted from the obligation to pay wages (see, e.g., Supreme Court Decisions 94Da54566, Nov. 10, 195; 2010Do10721, Feb. 10, 201).

However, Article 13(1) of the Defendant’s collective agreement (Evidence 1, 205) provides that “a company shall be limited to one person if a member is appointed by full-time office of a superior organization and the treatment of this predecessor shall be unpaid leave.” In addition, Article 24(1) of the Defendant’s Personnel Regulations (Evidence 2) provides that “A company shall not interfere with the activities of an association during the period of full-time or exemption from office and shall not be disadvantageously treated after removal.” In addition, Article 24(1) of the Defendant’s Personnel Regulations (Evidence 2) provides that “Any employee who is on leave of absence or on leave of absence from office shall not be promoted or elevated: Provided, That this shall not apply to a person who is under leave of absence due to occupational injury or disease or a raise in the position of a childcare leave.”

Therefore, according to the above provision of the Trade Union and Labor Relations Adjustment Act, collective agreements, and personnel regulations, the Defendant’s employees are not included in the status of “temporary retirement from office” during the period of the full-time retirement of higher-level organizations, and this is different from not using the expression “temporary retirement from office” for the chairman of the Trade Union and Labor Relations Adjustment Act. Therefore, even if the Defendant acknowledged the instant employee’s promotion of salary class to the chairman of the Trade Union and Labor Relations Adjustment Committee during the full-time period, it is difficult to view that the promotion of salary class should be naturally made for the Plaintiff (appointed party) who is the full-time officer of the higher-level organization. Furthermore, it is difficult to view that the Defendant’s absence of

Ultimately, the plaintiff (appointed party)'s assertion on the premise that a raise in salary grade should be made during the period of his transfer to the plaintiff (appointed party) cannot be accepted without further review.

D. Sub-determination

Therefore, the defendant shall pay 3,426,90 won to the plaintiff (appointed party) and 200 won per annum from January 29, 201, which is the day following the date of service of a copy of the application for modification of the purpose of the claim and the cause of the claim of this case, to 5% per annum as stipulated in the Civil Act until May 20, 201, which is the date of delivery of a substantial dispute as to the existence and scope of the defendant's obligation to pay damages for delay calculated at 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, 4,487,50 won, 200 won, 3,155,50 won, 400 won, 3,000 won, 3,067,100 won, 6, 309, 305, 301, 305, 18, 106, 301

3. Conclusion

Therefore, the plaintiff (appointed party)'s claim is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attached List of Selectioners and Attached Forms 1, 2, and 3]

Judges Seo-won