2012Da71138 Wages

Plaintiff (Appointed Party)

Attorney Park Jae-hoon, Counsel for the plaintiff-appellant

Busan Infrastructure Co., Ltd.

Law Firm Sejong, Counsel for the plaintiff-appellant

Attorney Seo Sung-sung et al.

Changwon District Court Decision 201145749 Decided July 10, 2012

October 29, 2015

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 32(1) and (2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that “The term of validity of a collective agreement shall not be more than two years.” If a collective agreement provides that the term of validity shall not be specified, or if a collective agreement provides that the term of validity shall exceed the said two years, that term shall be two years.” As such, limiting the term of validity of a collective agreement to two years is likely to unfairly restrict the parties by failing to adapt to changes in social and economic conditions so that it violates the purpose of maintaining appropriate working conditions and promoting stability in labor-management relations through a collective agreement, and thus, it would be inconsistent with the purpose of regulating the term of validity to a certain extent and to adjust the contents of the collective agreement in a timely and concrete manner (see Supreme Court Decision 203Da1548, Feb. 2, 1993).

9. Therefore, even if a trade union that is a party to a collective agreement and an employer have set the term of validity of a collective agreement exceeding two years, the term of validity of such collective agreement shall be reduced to two years by subject to the restriction under Article 32(1) and (2) of the Trade Union Act.

However, the proviso of Article 32(3) of the Trade Union Act provides that “if a collective agreement is not concluded even after the expiration of its term of validity, the agreement shall continue to exist until a new collective agreement is concluded, that agreement shall apply, if any, to the effect that it will continue to exist until the date on which the new collective agreement is concluded, and either party may terminate the previous collective agreement by notifying the other party six months prior to the date on which the collective agreement is intended to be terminated.” If the collective agreement continues to remain in effect pursuant to the provisions automatically extending the term of validity after the expiration of the term of validity, it shall be notified to the other party by six months prior to the date on which one party intends to terminate the collective agreement, and shall be able to terminate the previous collective agreement by allowing the other party to terminate the collective agreement by six months prior to the date on which the other party intends to terminate the collective agreement, notwithstanding Article 32(1) and (2) of the Trade Union Act, with respect to the principle of autonomy of the collective agreement to a certain extent, it shall be permitted to extend the term of validity until the new collective agreement expires.

In full view of the contents of each provision of the Trade Union Act, mutual relationship, legislative purpose, etc., if a collective agreement continues to maintain its validity pursuant to a provision automatically extending the term of validity after the original term of validity subject to restrictions under Article 32(1) and (2) of the Trade Union Act expires, it is reasonable to view that the term of validity of a collective agreement maintained is not uniformly limited to two years pursuant to Article 32(1) and (2) of the Trade Union Act.

B. On the grounds indicated in its reasoning, the lower court determined to the effect that the instant collective agreement, which applies to the instant sub-chapters as indicated in the holding of the lower judgment, was null and void until March 31, 2006 and no new collective agreement was concluded after the expiration of its validity period, and that Article 2 of the Addenda to the instant collective agreement, "the validity of this agreement shall continue until the renewal agreement is concluded even after the expiration of its validity period," and that (2) the instant collective agreement shall continue to have its validity even after the expiration of its validity period pursuant to the proviso to Article 32(3) of the Trade Union Act, and that the instant collective agreement shall also apply to the designated parties of the instant case, which entered into the instant sub-chapters on March 31, 2009, which was prior to the expiration of its validity period, on the grounds that it is reasonable to view that the instant collective agreement becomes void on February 1, 2010 and six months after the Defendant’s declaration of termination was delivered.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court as above.

The judgment is based on the legal principles as seen earlier, and contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles on the validity of a collective agreement.

2. Regarding ground of appeal No. 2

For the reasons indicated in its holding, the lower court rejected the Defendant’s defense that the instant collective agreement, which did not reflect the annual leave use promotion system, was null and void or that the annual leave use promotion system is applied as a matter of course on the erroneous premise that the annual leave use promotion system is applied, and thus, it is difficult to interpret that the instant collective agreement, which did not reflect the annual leave use promotion system, was invalid or that the annual leave use promotion system is applied as a matter of course under the Labor Standards Act. However, the lower court rejected the Defendant’s defense that the annual leave payment system was not obliged by taking all measures on the erroneous premise that the annual leave use promotion system is applied.

Examining the evidence duly admitted the reasoning of the lower judgment and the content and legislative purpose of the annual leave use promotion system as prescribed by the Labor Standards Act, the lower court did not err in its judgment by misapprehending the legal doctrine on the application of the annual leave use promotion system, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin-chul

Justices Kim Yong-deok

Justices Park Young-young

Justices Kim Jong-il

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