Plaintiff (Appointed Party) (Attorney Noh Jeong-jin et al., Counsel for the plaintiff-appointed party-appellant)

The Chairman of the National Labor Relations Commission

The Intervenor joining the Defendant (Law Firm Apool, Attorneys Choi Sung-soo et al., Counsel for the defendant-appellant)

March 25, 2008

1. On June 8, 2007, the National Labor Relations Commission revoked the decision of reexamination made on the case of application for reexamination of unfair dismissal between the designated parties listed in the Plaintiff (Appointeds) and the annexed list of designated parties and the Defendant’s Intervenor and the supplementary intervenor.

2. The costs of the lawsuit shall be borne by the Defendant’s Intervenor, and the remainder by the Defendant, respectively.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence Nos. 1 and 2, or there is no dispute between the parties.

A. Defendant Intervenor’s Intervenor (hereinafter “ Intervenor”) was established on May 31, 1967 and hired 1,286 workers at the Seo-gu, Seo-gu, Busan and established and operated △ University ○○ Hospital, etc., the Plaintiff (designated parties; hereinafter “Plaintiffs”) is a school foundation that established and operated △△ University ○○ Hospital, etc. on March 27, 1985; the Appointed 2 was the Appointed 196. January 1, 1996; the Appointed 3 was the Appointed 3 was the Appointed 4.14.1989; the Appointed 5 was the Appointed 5.9.9.9; the Appointed 6.6 was the Plaintiff’s members and △△△△△ Hospital’s employees on September 15, 1995 (hereinafter “Plaintiff’s members and △△△△△ Branch”) who were named the Plaintiff’s members and △△△ branch’s employees on the ground that they were employed.

B. On September 20, 2006, the Plaintiff et al. filed an application for remedy with the Busan Regional Labor Relations Commission for unfair dismissal by asserting that the retirement disposition of this case was dismissal. On November 13, 2006, the Busan Regional Labor Relations Commission issued an order of remedy to promptly restore the Plaintiff et al. to the original state and pay the amount equivalent to the wages that could have been received if the Plaintiff et al. had worked normally during the period of dismissal.

C. On December 21, 2006, the Intervenor filed an application for reexamination of unfair dismissal with the National Labor Relations Commission as of December 21, 2006, as of 2006, and the National Labor Relations Commission accepted the Intervenor’s application for reexamination on June 8, 2007, and subsequently dismissed the Plaintiff’s application for unfair dismissal (hereinafter “instant reexamination decision”). The National Labor Relations Commission revoked the order for remedy issued by the Busan Regional Labor Relations Commission and made a decision to dismiss the application for unfair dismissal (hereinafter “instant reexamination decision”).

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

A. The plaintiff's assertion

1) As a mountain-level labor union, the right to negotiate as a mountain-level labor union is, in principle, a mountain-level labor union. An individual workplace is delegated with the authority from mountain-level labor union and engages in collective bargaining. The head of △△ branch was delegated with the authority of branch bargaining in 2005 and 2006 from Nonparty 1, the chairperson of the public health labor union, on November 25, 2005, but the term of office of Nonparty 1 terminated as of December 31, 2005. Thus, the term of office of Nonparty 2, the chairperson of the public health labor union, as of December 31, 2005, was newly delegated with the authority of branch bargaining in 2006 from Nonparty 2, the head of the public health labor union, and without being delegated with the authority of branch bargaining in 205 and 2006, entered into the instant special agreement with the head of the ○○ Hospital (hereinafter “the instant special agreement”). Therefore, the said special agreement is null and void.

2) The instant special agreement was concluded on May 15, 2006 and 16, through a vote of the union members for both days, with the approval of the agreement. The above pro-con voting was made without the witness witness, and its procedural justification is null and void, and thus, the instant special agreement is also null and void. In addition, even though ○○ Hospital and △△ Branch did not have any economic risk to reduce the retirement age for 6 years at the time, ○○ Hospital and △ Branch concluded a joint agreement with one another for the purpose of concealing the transaction of the ○○ Hospital and dismissing some union members, and thus, the instant special agreement is null and void in violation of social order without selecting a witness even during the pro-con voting process, and the trade union did not induce the new union members to agree with the new union members. Although the instant special agreement stipulates the retirement age for 54 years, the collective agreement in 2006 stipulates the retirement age as 60 years in accordance with the principle of preferential treatment.

3) The instant rules of employment are null and void because they were modified disadvantageously to the previous employees without any justifiable consent from the labor union.

4) Therefore, the instant retirement disposition based on the instant special agreement and the rules of employment is unlawful.

B. Relevant provisions

【Trade Union and Labor Relations Adjustment Act (Amended by Act No. 8158, Dec. 30, 2006)】

Article 29 (Authority to Negotiations and Conclusion of Contracts)

(1) For a trade union or its members, the representative shall have the authority to negotiate and make a collective agreement with an employer or employers' association.

(2) Any person who is delegated by a trade union and an employer or employers' association with the authority to negotiate or conclude a collective agreement may exercise such authority within the scope of delegation for the trade union and the employer or employers' association

(3) When a trade union and an employer or employers’ association delegate their authority to negotiate or conclude a collective agreement pursuant to paragraph (2), they shall notify the other parties thereof.

Article 31 (Preparation of Collective Agreement)

(1) A collective agreement shall be made in writing and signed by both parties.

(2) The parties to a collective agreement shall report to the administrative authorities within 15 days from the date of conclusion of the collective agreement.

(3) If any collective agreement is unlawful, administrative agencies may order the correction thereof with a resolution of the Labor Relations Commission.

Article 32 (Effective Term of Collective Agreement)

(1) No collective agreement shall provide for an effective period exceeding two years.

(2) Where the term of validity is not specified in a collective agreement or exceeds the term under paragraph (1), such term of validity shall be two years.

Article 33 (Validity of Standards)

(1) Any part of the rules of employment or labor contract which violates the standards for working conditions and other treatment of workers prescribed in the collective agreement shall be null and void

(2) Matters not prescribed in a labor contract and the part which is null and void under paragraph (1) shall be governed by those standards of a collective agreement.

【Labor Standards Act (amended by Act No. 8372 of April 11, 2007)】

Article 97 (Procedures for Preparation and Amendment of Rules)

(1) With respect to the preparation or modification of the rules of employment, an employer shall hear opinions of a trade union if there is an organized labor union with a majority of workers at the business or workplace concerned and, if there is no such organized trade union, seek opinions of a majority of workers if there is no such one

(2) An employer shall, when he reports the rules of employment pursuant to the provisions of Article 96, attach in writing his opinion as referred to in paragraph (1).

Article 99 (Observance of Collective Agreements)

(1) The rules of employment shall not be contrary to Acts and subordinate statutes or a collective agreement applicable to the business or workplace concerned.

[Written Special Agreement on Voluntary Collaboration 2005, 2006]

3) The collective agreement in 2006

(1) The retirement age shall be 54 years (age of 1952).

(1) A person aged 57 or older shall be the end of June at the time of retirement. A person aged 56 or 55 shall be the end of June at the time of retirement, and a person aged 5 shall be the end of June at the time of retirement, and a half-month consolation benefits shall be paid. A person aged 54 shall be the end of June at the time of retirement, a person aged 54 shall be the first half of the year at the time of retirement, and a person who is the second half of the year shall be the time of retirement, and a half-month consolation benefits shall

(15) Retired travel shall not be applied for a limited period of three years.

- A collective agreement: A special temporary agreement shall apply to the matters modified according to the above agreement, and the remaining collective agreement shall be accepted as the original agreement.

[Collective Agreement in 2006]

Article 3 (Qualification and Admission of Members)

(1) No person who works for the △△○ Hospital at the △△ University shall be admitted to a position equivalent to or higher than the head of a department, and if at least 2/3 of the persons eligible for admission are its members, he/she shall be admitted to the relevant workplace (excluding persons, personnel affairs, labor, planning, accounting, hospital

Article 5 (Preferential Effect of Convention)

The standards provided for in this Convention shall take precedence over employment contracts entered into with all rules, regulations and employees prescribed by the hospital.

Article 31 (Retirement Age)

1. The retirement age of employees shall be sixty years of age;

3. A hospital shall, as the honorable treatment of a retired person, conduct a package trip with one lineal family member, and all expenses shall be borne by the hospital (Provided, That a package trip shall be implemented at least one month prior to his/her retirement, and the period of leave shall be treated as a leave of absence).

4. During the period from January 1 to June 30, the relevant person shall be June 30, July 1 to December 31, the person who falls under the period from December 31.

Addenda

Article 1 (Term of Validity) The term of validity of this Convention shall be within one year from the date of conclusion.

【Rules of the National Health and Medical Service Industry Trade Union】

Article 52 (Power of Collective Negotiations)

The representative of all collective bargaining within a union shall be the chairperson: Provided, That where the chairperson deems it necessary, he/she may delegate his/her right to bargaining by appointing the head of the headquarters, the head of a branch office,

Article 53 (Right of Conclusion)

(1) A collective agreement shall be signed by the chairperson and signed jointly by negotiating members.

(2) When the head of the headquarters or branch office delegated by him/her intends to conclude a collective agreement, he/she shall conclude it with prior approval of the chairperson, and the negotiating members shall sign it

[Employment Rules]

Article 2 (Scope of Application) The daily service and working conditions of workers working at △△ University ○○ Hospital (hereinafter referred to as "employee") shall be governed by these Rules and the provisions enacted thereby, except as otherwise provided for in statutes and collective agreements.

Article 40 (Retirement Age) (1) The retirement age of employees shall be 54 years of age.

(c) Fact of recognition;

The following facts may be acknowledged in full view of the evidence as mentioned above, Eul evidence as well as Eul evidence as evidence 1 to 3, Eul evidence as evidence 4-1 to 12, Eul evidence as evidence 11-1 to 17, Eul evidence as evidence as evidence 21, Eul evidence as evidence as evidence No. 22-1 to 6, Eul evidence as evidence No. 23-1 to 23, Eul evidence as evidence No. 24 through 26, Eul evidence as evidence as evidence No. 28-1 to 6, and the whole purport of oral argument as whole:

1) Since June 2000, ○ Hospital established and operated by the Intervenor became difficult to manage due to pharmaceutical distribution, the hospital finance has deteriorated to the extent that it is unable to pay 1,046 workers with overdue money of 35.9 billion won, debt 6.4 billion won, etc. which occurred since 2001, and the bankruptcy on May 9, 2003.

2) On November 25, 2005, Nonparty 3, the head of △△ branch affiliated with the Health and Labor Relations Adjustment Group, delegated the authority to conduct collective bargaining by the branch office in 2005 and 2006, and agreed on November 29, 2005, the head of ○○ Hospital, and the need for restructuring for the reduction of the number of workers, and agreed on the need for collective bargaining over 12 occasions from November 29, 2005 to May 4, 2006. On May 5, 2006, Nonparty 3, the head of △△△ branch affiliated with the Health and Labor Relations Adjustment Group, agreed on a provisional agreement on “the Special Agreement on the Promotion of the Health and Labor Relations, 2005,” with the purport of reducing the number of workers from 60 to 54 years, and reducing the retirement age from 30 persons.

3) After that, the △△ branch reported the above provisional agreement to the chairperson of the Health Labor Assistance Group on May 15, 2006, 765 members of the Trade Assistance Group consisting of 1,173 workers at ○○ Hospital on May 16, 206 and 765, 706, 706 members participated in voting and 469 of the members agreed to the above special agreement (contribute rate 66.4%), and the head of △△ branch and ○○ Hospital signed and sealed the above special agreement on May 22, 2006 between △△ branch and ○○ Hospital. The △△ branch concluded the above special agreement on May 22, 2006, and reported the fact that they concluded this special agreement to the chairperson of the Health Labor Assistance Group on September 1, 2006, and the △△ branch signed this special agreement on September 1, 2006.

4) On May 29, 2006, ○ Hospital reported the employment rules (hereinafter “instant employment rules”) to the Busan Regional Labor Administration, including the provision that reduces the retirement age of employees at 54 years, along with the written opinion of the △ branch’s office with the content that the labor and management agreed to set the instant special agreement at 54 years of age.

5) As of June 30, 2006, the plaintiff (the plaintiff on April 13, 1952) and 5 designated parties (the plaintiff on May 22, 1952) respectively were 54 years of age, 2 years of age (the plaintiff on October 13, 1949) and 56 years of age, 3 (the plaintiff on November 5, 1948) and 4 years of age (the plaintiff on March 10, 1949) were 57 years of age, 6 years of age (the plaintiff on May 25, 1951) and 55 years of age, and the plaintiff on June 30, 2006 (the plaintiff on June 26, 2006), including the plaintiff on June 30, 2006, submitted the retirement age as the plaintiff on June 26, 206 and the remaining retirement age as the plaintiff on June 26, 2006.

D. Determination

1) According to the above facts, the special agreement of this case was concluded by the head of △△ branch delegated with the authority to conduct collective bargaining of the branch office in 2005 and 2006 as of November 25, 2005, and there is no evidence to acknowledge that the chairperson of △△ branch delegated with the authority to conduct collective bargaining of the branch office in 2006. In addition, in light of the fact that the chairperson of △ branch office signed and sealed the special agreement without any objection after concluding the agreement, it is reasonable to deem that the authority to conclude collective bargaining was included in the authority to conclude collective bargaining in addition to the authority to conduct collective bargaining as a factual act delegated by the head of △△ branch office, and therefore, the special agreement of this case was duly concluded by the person with the authority to conclude collective bargaining.

2) Even if the head of △△ branch was delegated with the authority to conduct collective bargaining in the branch by Nonparty 1, the chairperson of △△ branch before the public health labor union, the term of office of the former chairperson expired on December 2, 2005, and concluded the instant special agreement with the head of ○○ Hospital without being delegated the authority to conduct collective bargaining in the branch again by Nonparty 2, who was the chairperson of the new public health labor union, and the said special agreement and the instant rules of employment based thereon are null and void. However, since Nonparty 1 delegated the authority to conduct collective bargaining in the △ branch in 2005 and 2006 to the head of △△ branch in the position of the chairperson of the public health labor union, the term of office of Nonparty 1 expires and Nonparty 2 was newly appointed as the chairperson of the public health labor union, the validity of delegation by the former chairperson of

The plaintiff's assertion on this part is without merit.

3) The Plaintiff asserts that the special agreement of this case is null and void because the vote of the union members on the conclusion of the special agreement of this case was made without witness witness, but the voting on the conclusion of the collective agreement is for the democratic formation of the union's formation, and is only an internal matter of the trade union, not the requirements for establishing the collective agreement or the requirements for establishing the collective agreement. Therefore, the Plaintiff's assertion on

4) The Plaintiff asserts that the instant special agreement is null and void as it goes against social order, such as concluding a joint agreement with ○ Hospital and △△ Branch for the purpose of dismissing some of the members, including the Plaintiff, even though there is no particular economic risk with ○○ Hospital.

A) Under the principle of the autonomy of an agreement, a trade union may enter into a collective agreement with an employer to unfavorably modify the working conditions as well as a collective agreement with an employer in favor of an employer. Thus, barring any special circumstance, such as where a collective agreement to unfavorably modify the working conditions may be deemed null and void, barring special circumstances, such agreement may not be deemed null and void, and a trade union does not need to obtain individual consent or authorization from employees for such agreement. Whether a collective agreement has significantly lacks rationality shall be determined in light of various circumstances, including the content of the collective agreement, the process of its conclusion, and the management status of the employer at the time of its conclusion (see, e.g., Supreme Court Decisions 2007Da18584, Dec. 14, 2007; 9Da67536, Sept. 29, 200).

B) According to the retirement age provision of the instant Special Convention, an employee who has been 54 years of age or older since the conclusion of the instant Special Convention and effective in 2006 shall be determined at the end of June 2006, and an employee who has reached 54 years of age in 2006 at the end of June 2006 (the first half of June 2006) through 54 years of age (the second half of the year 2006) shall be determined at his retirement. Meanwhile, since the contents modified by the instant Special Convention are preferentially applied to a collective agreement, the provisions on the retirement age of the Special Convention shall be effective as a substitute for the provisions on the retirement age of the collective agreement in 2006, and the term of validity of the collective agreement in 2006 shall be one year from the date of its conclusion (Article 1 of the Addenda to the collective agreement), and formally, it shall not be in violation of equity between the partners who have reached the retirement age in the future in 206 pursuant to the provisions of the instant Special Convention.

However, the instant Special Convention provides that “The retirement age of 60 years is 54 years” in the form of the Special Convention, instead of changing the provisions on retirement age under the collective agreement itself even though it was concluded at the same time on May 22, 2006, and stipulates that “the retirement age of 60 years” under the said special agreement shall be changed to 54 years” (in addition, the provision provides that “the age of 54 years shall be 54 years” and that “the age of 1952 shall be limited to 1952” shall not exceed 2 years under the Trade Union and Labor Relations Adjustment Act. However, the provisions on retirement age under the said collective agreement shall be deemed as 1 year from the date of its conclusion, while the provisions on retirement age under the said collective agreement shall be deemed as 6 years from the date of its conclusion, the provisions on retirement age under the said special agreement shall be deemed as 20 years from the date of its amendment to the retirement age of 4 years from the date of its conclusion, the provisions on retirement age of 20 years from the said collective agreement shall be deemed as invalid.

As seen earlier, labor and management with respect to the fact that the management status of the ○○ Hospital is extremely aggravated and the necessity of restructuring is necessary, thereby reducing the retirement age, and it does not change even if the instant special agreement was concluded with the consent of a majority of the members of the branch office.

Therefore, the part concerning retirement age in the special agreement of this case is null and void, and the rules of employment of this case revised based on such special agreement are null and void regardless of the consent of the trade union.

(3) Therefore, this case’s retirement disposition, which was conducted under the instant special agreement and the rules of employment, constitutes an actual dismissal, and, unless there is any evidence to deem that there is a justifiable ground for such dismissal, it would be unfair dismissal. The instant review decision, which was otherwise reported, is unlawful.

3. Conclusion

Therefore, the claim of this case by the plaintiff et al. is accepted as it is without merit, and it is so decided as per Disposition.

【Omission of Selection List】

Judge Jeong Ho-sung (Presiding Judge)