New Passenger Co., Ltd. (Attorney Kim-dong, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

National Public Transport and Services Workers' Union (Law Firm together, Attorney Gangnam-ho et al., Counsel for defendant-appellant)

August 13, 2013

1. The plaintiff's claim is dismissed.

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

The decision made by the National Labor Relations Commission on December 10, 2012 was revoked on December 10, 2012 by the case where the Central Labor Relations Commission applied for reexamination of unfair labor practices between the Plaintiff and the Intervenor joining the Defendant.

1. Details of the disposition;

A. On November 30, 2006, the Plaintiff is a company that employs 115 full-time workers for the purpose of passenger transport service business, etc., and the Intervenor joining the Defendant (hereinafter “ Intervenor”) is an industrial trade union established with the organization of workers who engage or intend to engage in the public sector and the transportation and social service business across the country, which is a major organization of the National Democratic Trade Union Federation.

B. On June 22, 2012, the Intervenor asserted that the Plaintiff’s payment of excessive wages to the Nonparty who was the head of the branch office that was exempt from working hours constituted unfair labor practices, and filed an application for remedy of unfair labor practices (before North Korea 2012No16) with the former North Korea Labor Relations Commission (hereinafter “former North Korea Labor Relations Commission”). However, on August 17, 2012, the former North Korea Labor Relations Commission rendered a ruling dismissing the said application (hereinafter “the first trial court of this case”).

C. On September 11, 2012, the Intervenor filed an application for review of the instant first instance trial court with the National Labor Relations Commission (hereinafter “China Labor Relations Commission”). On December 10, 2012, Central Labor Relations Commission (hereinafter “Central Labor Relations Commission”). Heavy Labor Relations Commission (i) claimed that the contractual work hours of a cooperative member were 2,080 hours, and the Plaintiff’s head works for about 3,00 hours exceeding 1,00 hours than those of ordinary cooperative members; however, there is no determination as to whether the above excessive work hours were objectively proven or paid, and thus, it is difficult to accept the Plaintiff’s assertion. (ii) From July 201, 201, to June 201, the Nonparty’s monthly wage of the first instance branch was paid to the general cooperative member for monthly wage paid to the general cooperative member, and (iii) the Plaintiff’s application for review of the amount of excessive work hours under the premise that the Plaintiff would normally be exempt from the payment of benefits under the Labor Relations Commission Act.

[Judgment of the court below] The ground for recognition is without merit, Gap evidence Nos. 1 and 2, and the ground for appeal

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

A. The plaintiff's assertion

(1) According to the Ministry of Labor’s announcement, the Plaintiff’s limit of exemption from working hours is within a maximum of 3,000 hours. The Nonparty ordinarily worked for 5-6 days a week and worked for 60 hours a week average of 10 hours a day to 10-hours. Thus, the annual working hours run for 3,00 hours a day. Inasmuch as the monthly wage is KRW 3,047,70 when a worker of the service year similar to the Nonparty worked for 3,000 hours a year, it cannot be deemed that the Plaintiff paid 3.2 million won a month to the Nonparty pursuant to Article 11(3) of the collective agreement.

(2) The Plaintiff did not intend to engage in unfair labor practice and did not establish unfair labor practice.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff’s workplace is a trade union, which is the Korean Automobile and Motor Vehicle Workers’ Union, the Korea Automobile and Motor Vehicle Workers’ Union (hereinafter “former Motor Vehicles’ Union”), the Korean Passenger and Commercial Union (hereinafter “New Passenger and Commercial Union”), and the Intervenor. The number of the members is 60 persons in the previous North Korean Motor Vehicles’ Union, 40 passengers’ union, and 7 persons in the Intervenor.

(2) On July 1, 2011, the Jeollabuk-do Bus Transport Business Association, including the Plaintiff, concluded a collective agreement with the former North Korean Automobile Management Act (hereinafter “instant collective agreement”) and a wage agreement (hereinafter “instant wage agreement”) with each of the following contents, respectively.

본문내 포함된 표 《이 사건 단체협약》 제11조(노조전임) 1. 원고는 노동조합 대표자(지부장)의 전임을 인정하고 전임자에 대해 노조법 제24조4에 의거 근로시간을 면제한다. 단 상급단체 임원으로 피선된 자의 전임(무급)을 인정한다. 2. 원고는 전임자의 전임기간을 근무한 것으로 간주하고 전임자라는 이유로 타 조합원과 일체의 불이익 처우를 하지 아니하며 전임자의 각종 복지후생, 사회보험, 재해보상 등은 조합원과 동일하게 적용하고 전임해제 사유 발생 시 원고는 원직에 복직시킨다. 3. 제1항에 따른 근로시간 면제자의 임금은 월 3,200,000원을 정액으로 정하고 근속년수에 따른 1년당 월 9,000원의 수당을 더하여 지급한다. 또한, 근로시간 면제자의 임금인상은 매년 조합원의 임금 인상 비율에 따른다. 단, 농어촌벽지의 경우는 운전자 23일분의 총액임금에 월 40만 원을 더하여 지급한다. 제19조(근로시간 및 근로일수) 1. 조합원의 기본 근로시간은 1일 8시간, 주 40시간을 기본시간으로 하고 운수업의 특수성을 고려하여 노사 합의하에 연장근로 할 수 있으며 근로시간 및 근로일수는 별도 임금협정서에 의한다. 제27조(임금제도) 임금제도는 별도 임금협정서에 의한다. 제56조(협약기간) 1. 이 협약기간은 2011년 7월 1일부터 만 2년으로 한다.

본문내 포함된 표 《이 사건 임금협정》 제2조(근로시간) 운전자의 근로시간은 주 40시간을 기본으로 하고 사정에 따라 연장 및 야간근로를 한다. 단, 시내버스의 경우 1일 2교대 근무제도 하에서 오후 근무자의 유고로 오전 근무자가 오후까지 대리근무 시 2일 근무로 간주할 뿐 연장근로로 인정하지 아니한다. 제8조[노동조합 지부장(근로시간 면제자) 급여] 노조지부장(근로시간 면제자) 임금은 단체협약 제11조에 의해 지급한다. 제14조 본 협정의 기간은 2011년 7월 1일부터 2012년 6월 30일까지 한다.

(3) On October 3, 1991, the non-party head of the Plaintiff’s branch office in the former North Korean Automobile Labor Union was employed by the Plaintiff, and the term of office of the head of the branch office is from January 1, 201 to December 31, 2013.

(4) From July 1, 2011, the Plaintiff exempted the Nonparty from working hours pursuant to Article 11 of the instant collective agreement with the head of the branch office, and paid wages. The payment details are as follows.

6. 0.7 3,30,305,300,307,307,307,407,307,307,307,307,405,307,368,368,000,368,0000 on September 3, 201, 200,305,307,307,307,307,200,307,307,305,200,307,307, 207,300,305,207, 2000 on the aggregate of 3,305,000,628,000 on the basis of 10,305,628,628,0006,0006,005, 07,005, 3007,307, 13013

(5) From July 201 to June 2012, the wage paid by the Plaintiff to workers (general members) whose number of years of service is similar to that of the non-party head of the branch office and the non-party (general members) are as follows:

2. On July 2, 2011, 326, 830, 50, 179, 205, 205, 362, 362, 362, 365, 206, 205, 206, 205, 205, 206, 362, 362, 365, 206, 205, 205, 206, 205, 205, 206, 205, 205, 364, 205, 205, 206, 205, 206, 205, 365, 206, 205, 360, 205, 46, 280, 280, 201, 21360, 294, 2016

【Fact-finding without a dispute over the basis of recognition, Gap evidence 2, Eul evidence Nos. 1 through 3, Eul evidence Nos. 3 and 4, the purport of the whole pleadings

D. Determination

(1) According to Article 24-2(1) and (2) of the Trade Union and Labor Act (Notice of Ministry of Labor No. 2010-39), the Plaintiff’s number of members is 107 (i.e., the number of members of the former North Korean Automobile Union + 60 passengers’ labor union + 40 passengers’ labor union + 7 participants). The annual limit of working hours does not exceed 3,00 hours.

The fact that the plaintiff paid wages to the non-party to the full-time officer of the labor union (hereinafter referred to as the "full-time officer of the labor union") by regarding the non-party's annual working hours of 3,000 hours is not disputed between the parties. Therefore, it is a problem whether the plaintiff's payment of wages to the non-party by recognizing the above working hours constitutes an "act of supporting wages to the full-time officer of the labor union" prohibited

(2) The Trade Union Act was enacted on March 13, 197 by Act No. 5310, and Article 24 of the Act provides that "the full-time officer of a trade union shall not be entitled to engage only in affairs of a trade union without providing a prescribed work (Paragraph 1)." Article 2 of the Act provides that "The full-time officer of a trade union shall not receive any benefit from the employer during his/her previous term (Paragraph 2)" and Article 81 subparagraph 4 of the Act provides that "if the employer agrees or negotiates with the employer during his/her current term of work, he/she shall not be allowed to do so within the scope of Article 24 (2) and Article 81 (4) of the Addenda of the Act." Article 24 (1) of the Act provides that "The employer shall not be allowed to engage in any work in violation of the Act No. 1066, Mar. 13, 197; 201."

(3) Comprehensively taking account of the legislative history and contents of the Trade Union and Labor Relations Adjustment Act, a full-time officer is exempt from all the duties to provide labor under an employment contract during the period of his/her full-time and the duties to pay wages, which are the duties of an employer (see Article 655 of the Civil Act), while a full-time officer is exempt from the duties to provide labor to an employee, but is distinguished from the concept of the duty to pay wages to an employer. In addition, allowing the full-time officer to engage in collective bargaining, etc. during his/her full-time work hours, even though it is unreasonable for the employer to allow the full-time officer to do so, it constitutes an unfair labor act, but exceptionally, paying wages for the full-time officer is not an unfair

(4) Therefore, wages that an employer can pay to a full-time officer who was exempted from working hours under Article 24(4) of the Trade Union and Labor Relations Adjustment Act refers to working hours exempted from the duty to provide labor to the full-time officer. The working hours here refer to working hours that the full-time officer bears the duty to provide labor under a labor contract, collective agreement, etc., i.e., “working hours” under Article 2(1)7 of the Labor Standards Act. The employer’s payment of wages equivalent to working hours recognized as working hours to the full-time officer should be deemed to constitute unfair labor practices under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act.

(5) Article 19(1) of the collective agreement of this case and Article 2 of the Wage Agreement of this case set the worker’s contractual work hours at 40 hours per week as seen earlier. Thus, the annual contractual work hours of the worker of this case (=40 hours x 52 weeks) are deemed to be 2,080 hours per annum. Thus, the exemption hours that the plaintiff may grant to the non-party do not exceed 2,080 hours, and therefore, the payment of wages equivalent to the working hours of 3,00 hours per annum to the non-party is made in excess of the amount of wages payable pursuant to Article 24(4) of the Trade Union and Labor Relations Adjustment Act, which constitutes “an act of subsidizing wages to the full-time officer of the trade union” under Article 81 subparag. 4 of

(6) The Plaintiff asserts that there is no intent to control and join the Plaintiff and thus no unfair labor practice is established.

According to Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, “the act of a worker to control or intervene in the organization or operation of a trade union” and “the act of supporting wages to the full-time officer of a trade union”, in the case of a latter’s act of supporting wages, an unfair labor practice is established as an act of supporting wages even though the employer did not intend to control or join the trade union. Therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

[Attachment Omission of Related Acts]

Judges Lee Lee (Presiding Judge) (Presiding Judge)