Where two corporations operating the same kind of business simultaneously dismiss or dismiss only a specific business sector of one corporation, the unit of determination as to whether there is "a serious managerial necessity" as a requirement for layoff, and the case where it can be determined whether there exists the above requirement by integrating two corporations exceptionally or by removing only a specific business sector of one corporation separately.

In a case where two or more corporations operating the same kind of business concurrently dismiss or dismiss only a specific business sector of one corporation, the determination of whether there is "a tension managerial necessity" as a requirement for the justification of layoff should be made by each corporation in principle. However, in a case where the business sector of one corporation is divided into two different business sections, human resources, materials, and places, and financial and accounting are separated from each other, and the trade union is also organized by each business division, and the trade union also has different business conditions, the determination of whether there is an urgent managerial necessity. Meanwhile, if the business sector of one corporation or one corporation operates the same business sector with the same type of business and its different business conditions, the two corporations are simultaneously responding to the economic situation in which the business sector is operated, and the human and material facilities are not strictly separated, and the trade union is also operated as a single union composed of two corporations, not a single union, and the labor union is closely related to one another to the extent that the business situation is regarded as one company, it can be determined comprehensively as to the urgent business sector of two corporations or another corporation.

Article 31 of the Labor Standards Act

Plaintiff and 53 others (Attorney Choi Yong-soo, Counsel for the plaintiff-appellant)

Taeyang Industrial Co., Ltd. and one other (Law Firm Jeong, Attorneys Yellow-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2004Na12523 delivered on April 20, 2005

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal shall be stated in the petition of appeal or the appellate brief itself, and may not be asserted in such a way as to invoke the grounds of appeal. Therefore, only the grounds of appeal asserted as the grounds of appeal in the appellate brief are examined as the grounds of appeal.

1. Regarding ground of appeal No. 1

In a case where two or more corporations operating the same kind of business concurrently dismiss or dismiss only a specific business sector of one corporation, the determination of whether there is a "tension managerial necessity" as a requirement for the justification of layoff should be made by each corporation, in principle. However, in a case where the business sector of one corporation is separated and independent from other business sector, human, material, and location, and financial and accounting are separated and the trade union is also organized by each business sector, and the trade union also has different business conditions, the determination of whether there is an urgent managerial necessity. Meanwhile, if the business sector of one corporation and another corporation operate the same kind of business with the same type of business, and there are different business conditions, the two corporations or one corporation are simultaneously responding to the economic situation in which the business sector is operated, and the human and material facilities are not strictly separated, and the trade union is also operated as a single corporation, not a single union, and it is closely related to the two corporations uniformly, and the management situation can be determined comprehensively as to the urgent business sector of one corporation or another corporation.

The judgment of the court of first instance, cited by the court below, acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and found it as a separate legal entity. However, in terms of personnel exchange, joint purchase of materials, single labor union, representative director's holding concurrent office, financial assistance, etc., it was actually operated as one unit, not only in the area of the non-commercialization, but also in the area of the non-commercialization of the non-business performance, but also in the area of the non-commercialization of the non-commercialization of the non-commercialization and the deterioration of the business performance of the non-commercialization of the non-commercialization of the non-commercial industry. In light of the above, since the management situation of the non-commercialization of the non-commercialization and the non-commercialization of the non-commercialization of the non-corporate owner, the court below determined that the non-corporate bargaining of the non-corporate entity of this case jointly conducted by the defendants is unreasonable, and in light of the records, the court below's finding of facts and the need for layoff cannot be accepted.

2. Regarding ground of appeal No. 2

Article 31(3) of the Labor Standards Act provides for the procedural requirements for layoffs that the employer shall inform in advance and faithfully to the labor union that has been organized by a majority of workers at the business or workplace, and the person that represents a majority of workers (representative of workers) in the absence of a labor union that is organized by a majority of workers at the business or workplace and that it is desirable for the employer to comply with the substantial requirements for layoffs under Article 31(1) and (2) of the same Act, as well as to ensure the substantial requirements for layoffs under Article 31(3) of the same Act to be implemented in mutual understanding of both parties through consultation process (see Supreme Court Decision 2001Da29452 delivered on July 9, 202).

In light of such legal principles, the defendants' employment details of new employees, the details of the payment of salaries by executives and management employees, the frequency of suspension of business, the easiness of replacement of human resources in the company, the details of the operation of the programs to support the change of human resources in the company, the process of negotiations with unions and unions, the number of times of continuous operation, the timing of proposals and opposite proposals, the details of proposals and opposite proposals, the purpose and contents of proposals, and the number of union negotiation members participating in negotiations, etc. for the last five years, as shown in the records and the judgment of the court below, the court below is justified that the defendants made full efforts to avoid the layoff of this case.

3. As to the third ground for appeal

The reasonable and fair criteria for dismissal also vary depending on the intensity of management crisis and managerial reasons that the employer faces, the contents of the business sector that conducted layoff, the composition of workers, and the social and economic situation at the time of layoff (see Supreme Court Decision 2001Da29452 delivered on July 9, 2002).

The following circumstances revealed by the facts duly established by the court below, namely, the defendants selected the recipients of the layoff in order of 1,937 individual scores table, which consists of nine items, such as personnel management and personnel management, and each item was established with detailed evaluation criteria. The above evaluation criteria are 100 points, 27 points for workers, 7 points for employers, and 73 points for each item. The defendants raised an objection to the selection of the recipients for layoff in writing for a considerable period of time, 7 points out of the subjects of the layoff were changed, and special points were assigned to the labor union officers, executives, and spouses. The defendants' special accidents and items were not implemented against the labor union and labor union. Since the defendants' special points and items were not implemented until late, it was found that there was a lack of research period with the labor union and labor union, and that there was no need to establish the fair evaluation methods in light of the fair calculation methods and the number of days for employees to participate in the work without permission, and thus, it seems that there was no need to establish the number of days of absence from work without permission.

Therefore, the court below's rejection of the plaintiffs' assertion as to the unfairness of the criteria for selection of dismissed workers is just, and there is no ground for appeal by the plaintiffs to this purport.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)