[1] Legislative intent and interpretation of Article 35 of the Labor Union and Labor Relations Adjustment Act

[2] The meaning of "a worker of the same kind who is employed in time" under Article 35 of the Labor Union and Labor Relations Adjustment Act, and whether the scope of the collective agreement to be concluded at a workplace is not specified, or whether all workers of the same kind in the workplace without the classification of types of occupation are applicable to all types of occupation (affirmative)

[3] Criteria for determining whether a temporary or temporary worker is a full-time worker and a worker of the same kind under Article 35 of the Labor Union and Labor Relations Adjustment Act

[1] In light of the purpose of the Labor Union and Labor Relations Adjustment Act, the basic legislative intent of Article 35 of the Labor Union and Labor Relations Adjustment Act is to maintain and strengthen the status, the right to organize, the right to collective bargaining, etc., of which many union members join by expanding the normative effect of a collective agreement that is recognized only between the original and the union members of a trade union in one workplace, and to promote the realization of fair and reasonable working conditions by integrating the working conditions for the same kind of work. However, Article 35 of the Labor Union and Labor Relations Adjustment Act is also formed for each company that mainly includes various types of work and collective agreement is also concluded for each company unit. As such, Article 35 of the Labor Union and Labor Relations Adjustment Act provides that where 1/2 or more of the total workers expected to be subject to the application of the collective agreement is expected to join a trade union and its employees are expected to be subject to the application under the provisions of the collective agreement, but it should be interpreted that the collective agreement remains effective for workers who are not subject to the application of the collective agreement.

[2] The term "worker of the same kind" under Article 35 of the Trade Union and Labor Relations Adjustment Act means the total number of workers who join a trade union and are subject to one collective agreement to calculate the ratio of workers who are more than half of the total number of workers, and the term "regularly employed worker" refers to all of the workers of the same kind who are actually employed in the workplace without the classification of class or type of work (production/management work, technical/general work, etc.), whether the period of employment is fixed (regular, temporary, daily work, commission work, etc.) or the name of the labor contract, and the term "worker of the same kind" refers to a person for whom the application of the agreement is expected under the provisions of the collective agreement in question. The issue of whether a person is eligible as a member of the union under the provisions of the collective agreement in question can be an important factor in determining whether the agreement is a person for whom the application of the agreement is expected under the provisions of the collective agreement in question, and if the collective agreement does not apply to all workers of the same kind in the workplace or all kinds of work.

[3] In determining whether a temporary or temporary worker is a worker of the same kind as a regular worker, it shall be based on the presumption that the collective agreement acquired by the trade union should also be applied to the temporary or temporary worker, and therefore, it shall be first examined whether a temporary or temporary worker is entitled to join the trade union under the provisions of the collective agreement. However, if a worker is employed for the same kind of work as a regular worker because there is no substantial difference between the regular worker and the regular worker in the continuity of his/her work or in the form of his/her work, even though he/she is employed for the same work as a regular worker, it shall be deemed that the collective agreement falls under the "worker of the same kind of work as a regular worker" in light of the legislative intent of Article 35 of the Trade Union and Labor Relations Adjustment Act, and it shall not be deemed that the collective agreement has not been applied to the temporary or temporary worker just because the trade union approved the operation of the temporary or temporary worker system.

[1] Article 35 of the Labor Union and Labor Relations Adjustment Act / [2] Article 35 of the Labor Union and Labor Relations Adjustment Act

[2] Supreme Court Decision 92Nu13189 delivered on December 22, 1992 (Gong1993Sang, 625), Supreme Court Decision 95Da4056 delivered on April 25, 1997 (Gong1997Sang, 1555), Supreme Court Decision 97Da58750 delivered on April 24, 1998 (Gong1998Sang, 1469), Supreme Court Decision 99Du6927 delivered on December 10, 199 (Gong200Sang, 208)

Freeboard Kim

Attorney Shin Jong-won (Attorney Shin Jae-chul, Counsel for the defendant-appellant)

Changwon District Court Decision 200Na12752 delivered on April 20, 2001

1. Of the original judgment, the part against the defendant exceeding the following part shall be revoked, and the plaintiff's claim as to that part shall be dismissed.

The defendant shall pay 1,22,33 won to the plaintiff (Appointed), 1,035,766 won to the Appointed, 778,433 won to the Appointed, 1,029,029,376,733 won to the Selection Kim Jong-sik, 1,415,333 won to the Selection Kim Chang-sik, 1,029,333 won to the Selection Kim Chang-jin, and 5% per annum from October 1, 199 to August 22, 2002, and 25% per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. Ten percent of the costs of a lawsuit shall be borne by the plaintiff (appointed party) and the remainder by the defendant, both together with the first and second instances.

1. Purport of claim

The defendant shall pay the 1,222,33 won to the plaintiff (appointed party) Kim Jong-ju, 1,267, 366 won to the Appointed, 1,029,029,333 won to the Appointed, 1,376 won to the Appointed Kim Jong-jin, 1,376,73 won to the Appointed Kim Chang-sik, 1,518,266 won to the Appointed Kim Chang-jin, 1,106,533 won to the Appointed Kim Chang-jin, 5% per annum from October 1, 199 to the delivery date of a copy of the complaint of this case, and 25% per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the court below is revoked, and the plaintiff (appointed party)'s claim is dismissed.

1. Basic facts and legal provisions

(a) Basic facts

The following facts may be acknowledged in full view of the following facts: Gap's evidence 1 through 7, 9, 10, 13, 14, 15, and 17; Eul evidence 8; 1 through 3; 1 through 2; Eul evidence 1-3; 2, 3, 4, 11, 14, and 16; Eul evidence 5-1 through 182; Eul evidence 6-1 through 202; Eul evidence 7; 1 through 6; Eul evidence 9 and 10; 1 through 12-3; Eul evidence 1 through 5; 15-1 through 7; and Eul evidence 15-7; 1 through 7; and the head of the District Court of Justice of the District Office of Justice of the District Court of Justice of the District Court of Justice of the District Tribunal of the District Tribunal of the District Tribunal of the District Court of Justice of the District Tribunal of the Changwon of the District of the District Court of the District Court of the original purport of the arguments.

(1) The defendant engaged in the general taxi transport business with the trade name called Geum River from 781-8 in the Shin-gu, Shin-gu, Shin-si, the plaintiff (appointed party) Kimju from March 1, 199 to September 18, 199; from April 18, 199 to September 28, 199; from May 29, 199 to September 29, 199; from May 29, 199 to September 29, 199; from February 4, 199 to July 17, 1999 to July 17, 199; from February 27, 199 to September 29, 199 to September 19 to 199; from September 19, 199 to September 29, 199 to September 19, 199 to September 29, 199.

(2)The collective agreement and the regulations on the labor union of Geum River-si, which had been enforced from May 15, 1997 to December 30, 199, provided that the rules on the employment of Geum River-si provide that "the company may employ daily workers as necessary" in Article 57, and "the rules on the employment of daily workers of Geum River-si" in Articles 1 and 3 provide that "the rules on the employment of daily workers of Geum River-si shall employ a daily worker (temporary worker) in order to commission the full-time worker of Geum River-si to work and to order the worker to be employed on the day."

(iii)The number of taxis at that time operated by the Defendant was 47, and that is operated on Sundays. As such, it is required to employ a total of 95 drivers when applying the principle of one-day service and one-day service. The Defendant, from February 199 to September 199, has employed 65 to 76 full-time workers and operated the said 21 to 32 (average 26) (average 26) including the 65 to 76 full-time workers and the 21 to 32 full-time workers (average 76) as well as the 21 to 32 full-time workers (average 26) as well as the 21 to 196 full-time workers in the event of a vacancy in a regular engineer. Therefore, there was no separate recruitment of a full-time worker.

(4) Although regular workers have a difference between the number of regular workers and the number of daily workers on the same day, the number of taxi workers and the number of the total number of daily workers continued to work for the company as 83,000 won (78,000 won before April 11, 1999) out of the daily operating income was paid to the company, while the number of regular workers and the number of daily employees worked for 2-day on the same day. However, the number of taxi workers and the total number of daily employees were in the form of 1-day work, but they were in the form of almost 1-day work, and 8,000 won (78,000 won before April 11, 1999).

(5)Article 2 (Scope of Members) of the above collective agreement provides that the Company shall recognize all employees, other than those engaged in the above-mentioned occupation, as union members of the Trade Union, from among the employees employed by the Company, ① the management and accounting positions, ② the maintenance positions, ③ all employees, other than those engaged in the above-mentioned occupation positions, was limited to the types of drivers if the employees were excluded from the above-mentioned occupation positions, and the number of the union members and the number of the regular employees was ordinarily equal.

(6)In addition, the collective agreement provides that, in principle, daily work and daily work hours shall be 12 hours a day and 48 hours a week; the number of monthly work hours shall be 15 hours a day and 193,000 hours a month, and the monthly basic pay shall be 193,000 won a month, and the monthly basic pay shall be 193,000 won a month, and the daily work pay 7,000 won a day separately from the basic pay, if the number of monthly work days is 1 to 12 days a month, 8,000 won a month, and 30,000 won a month if the number of monthly work days exceeds 15 days a month, and that the collective agreement provides for the calculation of the amount of other leave expenses, continuous service allowances, exclusive service allowances, bonuses, retirement allowances, etc., the regular workers shall be based on the aforementioned regular work wage in accordance with the contents of the collective agreement.

(7)On the contrary, the rules of employment of the article for daily employed workers provide that bonuses shall not be paid for the period of full-time employment (Article 2). The letter of employment contract concluded with the Defendant that the designated parties entered into with the Defendant is paid on that day with daily salary of 8,000 won without basic pay, and the retirement allowance calculation period shall be calculated on that day, and the designated parties shall be paid only 8,000 won per day without basic pay, and they shall work for that period.

(8)On the other hand, the above rules of employment have provisions on regular probationary officers in Article 10, but in paragraph 1, "the company shall be temporarily employed on the condition of a three-month probationary period and shall determine the eligibility for regular employment during that period", and in paragraph 3, "if all documents submitted at the time of employment were false, false, or not stated true, or if it is deemed inappropriate due to a breach of the rules and a bad conduct, if it is inappropriate for the company to function or perform its duties, or if any personal or material damage was caused during the probationary and probationary period, the company may cancel the employment."

(9)The Agreement on the Rules of Employment for the Work-Related Technicians provides that the work-related article shall be selected and recruited from among the work-related articles on the basis of personnel class points in the event of a vacancy in the prescribed number of the work-based article, and the work-related period shall be the training period (Articles 1, 4), 5 days or longer, when unauthorized absence from work, when the company is dismissed or imitated by intentionally reporting to the authorities concerned, such as by manipulating false facts or distorted facts, or when the traffic order or the occurrence of traffic accidents, etc. is violated and made two or more times.

(10)The new executive organ of the Trade Union had been a kind of article 10, 200, 3 April 5, 1999, which had been past work period of 3 April 199, and had been entered into the Tak-si Trade Union in order to be a kind of article 10, 300,000,000,000,000,0000,000,000.

(b) legal provisions;

Article 35 (General Binding Force) of the Labor Union and Labor Relations Adjustment Act (hereinafter referred to as the "Labor Union and Labor Relations Adjustment Act") applies to a single collective agreement to workers of the same kind who are employed in a business or workplace.

2. The parties' assertion

A. The plaintiff (appointed)'s assertion

Although the form of work of the designated parties who are daily workers is the same as the work process, details of duties, hours of work, methods of receiving the difference, and the number of monthly work days, the defendant did not pay only the basic salary prescribed in the above collective agreement but paid only the daily pay according to the rules of employment for the daily work worker. Pursuant to Article 35 of the Labor Union Act, the defendant is obligated to pay the designated parties the basic salary equivalent to the number of days of work.

B. Defendant’s assertion

In Article 35 of the Labor Union and Labor Relations Act, the term "regularly employed worker" refers to a permanent worker who meets the requirements of full-time and continuity, and since the designated parties who are the daily worker are remarkably different from the regular worker's wage in the employment type, the selection does not constitute a "regular worker of the same kind" as prescribed by the above law, it is not subject to the application because it does not correspond to the "regular worker" under the above law. If the designated parties employed under the daily employment contract are treated as the same as the regular worker, they do not only go against the contents of the employment contract, but also make the daily worker system, which is agreed to as the real and irregular system in the labor union of the Geumnam-si, the labor union of the Geum River and Labor Relations Commission, and there is rules of employment applied separately from the regular worker's wage, the defendant does not have any obligation to pay the basic wage to the designated parties.

3. Determination

(a) A worker under Article 35 of the Labor Standards Act or a worker for daily employment;

In light of the purpose of the Labor Union Act, the maintenance and improvement of working conditions through the guarantee of the three labor rights (Article 1), the basic legislative intent of Article 35 of the Labor Union Act is to expand the normative effect of a collective agreement that is recognized only between the original employer and the union members of a trade union to workers of the same kind who are not union members, thereby maintaining and strengthening the status, the right to organize, the right to collective bargaining, etc. of the trade union to which many union members join and promoting the realization of fair and reasonable working conditions by integrating the working conditions for the same kind of labor. However, Article 35 of the Labor Union Act is also formed by a company that mainly includes various types of occupation and collective agreement, and the collective agreement is also concluded in business units. Thus, if one/2 or more of the whole workers who are expected to be subject to the application of the agreement pursuant to the provisions of the collective agreement is expected to join the trade union, but it is reasonable to interpret the provisions of the collective agreement to have the effect on the workers of a collective agreement not applied.

Therefore, the term "worker of the same kind of job employed on a regular basis" in Article 35 of the Trade Union Act means the total number of workers who are subject to one collective agreement after joining a trade union, and "regularly employed worker" means all of the workers of the same kind of job in the workplace who are actually employed at the workplace without the classification of class or occupation (production/management, technical/general occupation, etc.), whether the period of employment is fixed (regular, temporary, temporary, temporary, entrusted occupation, etc.) or the name of the labor contract, and "worker of the same kind of job" in this case means a person for whom the application of the agreement is expected under the provisions of the collective agreement in question. Whether a person is eligible for membership under the provisions of the collective agreement in question refers to an important element in determining whether the agreement is expected to be applied under the provisions of the collective agreement in question. In cases where a collective agreement does not provide for the scope of application under the collective agreement in question, or where all the provisions of the agreement apply on a regular basis, it refers to the same kind of worker in the workplace without the classification of occupation.

On the other hand, in determining whether a temporary or temporary worker is a worker of the same kind as a regular worker, the collective agreement acquired by the trade union should be applied to the temporary or temporary worker. Therefore, in accordance with the provisions of the collective agreement, whether a temporary or temporary worker is entitled to join the trade union should first be examined. However, even if there is no substantial difference between the temporary worker and the regular worker in the continuity of the work or in the form of employment, it is reasonable to deem that the collective agreement is a "worker of the same kind" in light of the legislative intent of Article 35 of the Labor Union Act, in cases where a worker is not employed as a regular worker and is employed as a temporary or temporary worker without any specific difference between the regular worker and the regular worker in the form of employment, it does not mean that the collective agreement has not been applied to the temporary or temporary worker just because the trade union approved the operation of the temporary or temporary worker system.

B. In the instant case

Even if a worker entered into an employment contract under the name of temporary employment or daily employment, if the actual form of the provision of labor continues to be a part-time employee, as seen earlier, it shall be deemed that the worker is a full-time employee. However, the article of the worker in the worker in the worker in the worker in the worker in the worker in the worker in the Geum River-si, including the designated parties (the employment rules also express it temporarily) has been providing the worker in the workplace in which the worker in the worker in the worker in the worker in the worker in the worker in the worker in the worker in the worker in the

In addition, although the daily workers of the Geum River-si are employed for the purpose of employment contract, there is no difference from the regular workers in the actual employment form, even in the form of employment, the work process, details of duties, working hours, the method of allocation of the vehicle, the number of working days in the form of employment, etc. are the same in actually as that of the regular workers in the form of employment, and the wage is not related to the same kind of employment, i.e., the effect of the collective agreement, and the wage is not related to the same kind of work, but is not an element to consider in judging the same kind of work, which is one of the requirements for the application of the collective agreement, the method of determining the wage and the method of paying the wage, shall be deemed to have been engaged in the same work as the regular workers.

게다가, 당시 시행되던 해금강택시의 단체협약서 제2조는 노동조합에 가입할 수 없는 제외직종 등을 몇 가지 제한적으로 열거하고 있어 오픈샵(open shop)의 형태를 취하고 있는데 일용직은 그 제외 내용 속에 포함되어 있지 않은 점, 그 당시 시행되던 노동조합규약에서도 일용직 기사를 명문으로 조직대상에서 제외시키는 규정을 두고 있지 않은 점, 해금강택시의 노동조합에서 1999. 4. 5. 일용직 기사들 중 일부를 노동조합에 가입시킨 적이 있는 점 등을 고려하여 보면, 해금강택시의 일용직 기사들은 기본적으로 해금강택시의 단체협약의 규정에 의하여 그 협약의 적용이 예상되는 자이므로 정규직 기사들과 "동종의 근로자"에 해당한다고 봄이 상당하다.

In addition, the person who is expected to be subject to the Convention pursuant to the provisions of the collective agreement of the Kug-si is about 100 persons at an average of the same level as the total number of drivers of the Kug-si. Even before April 5, 199, all regular employees who up to 3/4 of them had joined the labor union and were subject to the collective agreement, and thus, all the daily workers who did not join the labor union are also subject to the above collective agreement.

4. Conclusion

Therefore, the defendant shall revoke the defendant's request for 1,22,33 won [the future 1,273,80 won [6 + 193,00 won + 618/30] or its claim shall be made], 1,035,766 won [5 + 193,00 won 】 778,4333 won [41/30 + 1,00 won + 3333 won [the defendant's claim for 29% [the defendant's remaining part of the defendant's appeal [the 1,270 won + 193,00 won]; 300 won [the defendant's claim for 30%) or 1,052,161 won [the defendant's appeal shall be dismissed ＋ 1,200 won]; 30% [the defendant's remaining part of the defendant's appeal shall be dismissed] or 1,030 won [the defendant's appeal shall be dismissed within the limit of 1,3030 months] and 3130 others.3];

Judges Choi Jin-soo (Presiding Judge)