2010Guhap23781. Nullification of the limit of working hours exemption

1. The National Federation of Democratic Trade Unions;

2. Kim 00

3. National Health and Medical Services Industry Trade Union;

4. Na00

5. The National Agricultural Cooperatives Federation of NH.

6.00

7. Demotion0

8. Stambling0

Minister of Employment and Labor

July 13, 2010

August 13, 2010

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On May 14, 2010, the Defendant confirmed that the notice of the limit of working hours exemption publicly notified by the Ministry of Labor No. 2010-39 is invalid.

1. Details of the disposition;

A. The Plaintiff’s National Federation of Workers’ Unions (hereinafter referred to as the “National Federation of Workers’ Unions”) is the Federation of Workers’ Unions nationwide, and Plaintiff Kim Young-hun is the chairman of the Democratic Labor Union and Labor Relations Adjustment Act (amended by Act No. 1039, Jun. 4, 2010; hereinafter referred to as the “Labor Union”). The Plaintiff National Health and Medical Workers’ Union is a nationwide industrial trade union comprised of workers engaged in the health and medical industry industry, and Plaintiff 200 is the chairman of the said Union as a full-time officer under the Labor Union Act. Plaintiff NH Union is a company-level trade union composed of workers of the National Federation of Agricultural Cooperatives, which is composed of workers of the National Federation of Agricultural Cooperatives located at a nationwide branch. Plaintiff 00 is the chairman of the said Union, who works for the Labor Standards Deliberation Committee on behalf of the National Federation.

B. On February 26, 2010, the Defendant established a deliberative committee consisting of five persons recommended by the management community to set the limit of working hours exemption, five persons recommended by the management community, five persons recommended by the Korean National Trade Union Federation, and five public interest members, as the work hours exemption system of pre-employed persons under the Trade Union Act was scheduled to enter into force from July 1, 2010.

C. Since then, Kim 00 and Lee 00, among the deliberation members of the recommendation of the Korean Federation of Trade Unions, retired, and the Defendant was commissioned as the deliberation members of the Plaintiff’s Democratic Labor Union and Park 00 recommended by the Plaintiff’s Democratic Labor Union.

D. On February 26, 2010, the Defendant requested the Deliberation Committee to deliberate on the limit of working hours exemption. After the fact, the Deliberation Committee held a multiple plenary meeting, but failed to decide on the limit of working hours exemption due to different opinions among its members.

E. On April 30, 2010, the Deliberation Committee held a 16th plenary meeting and made a resolution on May 1, 2010, 201: around 50: (a) on May 1, 2010, 9 members, 1 members, and 5 members, who were to vote in the agenda on the limit of working hours exemption as indicated in the following table (hereinafter “instant resolution”).

A person shall be appointed.

E. On May 14, 2010, according to the above resolution of the Deliberation Committee, the Defendant publicly notified the limit of working hours exemption to Ministry of Labor No. 2010 - 39 (hereinafter “instant public notice”).

【Uncontentious facts, entry of Gap evidence Nos. 1 through 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant decision has the following defects, and the instant decision becomes null and void due to significant and apparent defects, and thus, the instant decision is null and void.

1) On May 1, 2010, pursuant to Article 2 of the Addenda to the Trade Union and Labor Relations Adjustment Act, the National Assembly did not gather opinions from public interest members by seeking opinions from the National Assembly, but did not gather opinions from the National Assembly, and the members of the Labor Relations Council exercised their deliberations and voting rights.

2) The instant resolution set the limits on the exemption of working hours solely on the basis of “the number of workers, whether they are separated from the type of occupation and the head of the business, and the number of union members without considering the actual working conditions, etc.” under Article 24(4) of the Trade Union and Labor Relations Adjustment Act, taking into account “the number of union members, etc. for each business or each place of business,” and the instant resolution deviates from the delegation limits set forth in Articles 24 and 24-2 of the Trade Union and Labor Relations Adjustment Act, by stipulating “the number of union members, who are not delegated by the Trade Union and Labor Relations Adjustment Act,” such as the number of union members.

3) The procedural defect, such as unilaterally changing the place of the meeting and proceeding a closed meeting in violation of the internal operational regulations of the commission, and mobilization of the employees of the Ministry of Labor by means of labor, such as Plaintiff 00 and Park 00, are heavy, and a resolution is forcibly made while the members of the labor community were deprived of their voting rights at source.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

(c) Determination:

1) As to the first argument

On May 1, 2010, the fact that the Committee made the instant resolution was as seen earlier, but in light of the following circumstances, even if the resolution passed on April 30, 2010, it cannot be deprived of the deliberation and voting rights on the limit of working hours held by the labor community and the members of the Presidential Young field recommendation. Thus, in the instant resolution on May 1, 2005, the deliberation committee did not hear the opinion of the National Assembly, or did not participate in the deliberation and resolution by the management recommending committee, the member of the labor recommending committee, and the member of the labor recommending committee. Accordingly, this part of the Plaintiffs’ assertion is without merit.

① Article 2(1) of the Addenda to the Trade Union and Labor Relations Adjustment Act requires the Deliberation Committee to determine the limit of time-off by April 30, 2010. However, in light of the fact that the term of office of a member of the Deliberation Committee is two years, and that the limit of time-off is passed under the name of the Deliberation Committee even if a member was deliberated and resolved on the limit of time-off due to a public interest member only, the authority to decide on the limit of time-off even after the lapse of the above period is still under

② Article 2(2) of the Addenda to the Trade Union and Labor Relations Adjustment Act provides that “A public interest member may deliberate and make decisions only.” This only opens the possibility of deliberation and resolution by public interest members solely based on the interpretation of the language and text.

In this respect, it is not stipulated that the voting rights of the members of the labor community are excluded.

③ With respect to the qualifications of members of the Deliberation Committee, the number of members of the nationwide labor organization or management organization requires persons who have knowledge about labor issues, such as former and incumbent executives of the labor organization or management organization, experts related to labor issues, etc. The Deliberation Committee has expert members to conduct professional surveys and research on the system of exemption from working hours, and the Trade Union and Labor Relations Adjustment Act has independent resolution of labor-related matters, etc., and the State has in principle assist the parties to labor relations in voluntarily adjusting the above matters. In the composition of the Deliberation Committee, the number of members recommended by the labor union, five members recommended by the management measurement, and five members commissioned by the defendant in principle. In light of the fact that the Deliberation Committee has established the principle of independent resolution of the parties to labor relations, it is the principle that the Deliberation Committee has to independently determine the limit of exemption from working hours through dialogue and compromise, and that public interest members are to be exempted from working hours only by taking account of the opinions of the National Assembly. It is also said that the National Assembly’s independent decision to exclude public interest members from working hours and to determine the limit.

④ The provision that allows public interest members to set the limit on the exemption from working hours is to provide for preparation for exceptional cases, such as where it is necessary to promptly determine the limit on the exemption from working hours, which is first determined prior to its implementation, due to the first implementation of the system on the exemption from working hours on July 1, 2010, and where it is impossible to decide on the exemption from working hours due to a conflict of opinions among the members.

⑤ Under the provision that public interest members shall hear the opinions of the National Assembly in order to check the authority of public interest members in cases where the limits on the exemption from working hours are determined, so if the members recommended by the labor community and the management community participate in the deliberation and resolution, it is not necessary to hear the opinions of the National Assembly on April 30, 2005.

2) As to the second argument

A) Article 24(4) of the Trade Union and Labor Relations Adjustment Act provides that the Deliberation Committee shall determine the limit of working hours by taking into account “the number of union members, etc. for each business or each place of business”. This provision also requires that the Deliberation Committee set the limit of working hours for each business or each place of business, and voluntarily takes into account factors that the Deliberation Committee considers necessary to determine the limit of working hours, such as “the number of union members” and “the number of union members,” as alleged by the Plaintiff, in addition to “the number of union members,” it cannot be said that other factors such as “the number of union members, the number of union members, the number of union members, and the number of workplace,” as argued by the Plaintiff.

In addition, Article 11-2 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that the Deliberation Committee may determine "the number of persons who can use" more than the time limit for the exemption of working hours, so there is no illegality in determining the number of persons who can use the time limit for the exemption of working hours according to the number of members pursuant to the above provision.

Therefore, this part of the plaintiffs' assertion cannot be accepted.

3) As to the third argument

A) Facts of recognition

(A) On April 30, 2010: around 06, the Deliberation Committee held the 16th plenary session at the 8th floor of the Korea Manpower Agency located in Mapo-gu Seoul, Mapo-gu, Seoul, and thereafter repeated meetings with regular meetings.

(B) On May 1, 2010: around 01:05, the members of the Deliberation Committee entered the meeting site for the purpose of opening the meeting, and Plaintiff Democratic Labor Group members who occupied the corridor prevented them from entering the meeting site. Some members attempted to enter the meeting site and the Ministry of Labor prevented them from entering the meeting site. Since then, the police secured a passage through which they can enter the meeting site to prevent the members from entering the meeting site and enter the meeting site.

(C) On the same day 01 01:20 on the same day, Plaintiff 50 and 00 on April 30, 2010, the National Labor Relations Commission demanded the conclusion of the meeting by asserting that the National Labor Relations Commission members are unable to exercise their voting rights and deliberation. Democratic Labor Relations Commission members interfered with the progress of the meeting, such as: (a) the National Labor Relations Commission members opened a meeting at around 01:20 on the same day; (b) the National Labor Relations Commission members opened a meeting; and (c) the National Labor Relations Commission members demanded the conclusion of the meeting to the effect that they are unable

(D) The chairman Kim 00 declared the meeting at around 02:0 on the same day, held a meeting of the executive secretary and a public interest committee. On the same day, at around 02:26, the meeting place was changed to the third floor sub-committee, and notified that the meeting will resume only by the members without the attendance of the management and labor community.

E) Since then, the members, including Plaintiff 00 and Park 00, moved to the third floor sub-committee room, and a meeting was opened at the third floor sub-committee room at around 38: 15 members were present.

F) The chairperson Kim Tae-tae distributed the agenda to the members of the committee on the limit of working hours, but the first highest class of 00 interfered with the progress of the meeting, such as tearing the agenda, and the members of the Ministry of Labor outside the meeting led to the failure of the members of the Ministry of Labor to take the meeting and stop the actions of the plaintiff Park Tae-man. The plaintiff Park Jong-tae demanded the chairperson to suspend the proceedings of the meeting.

The chairperson Kim 00 had the members of the Lee Jong-hoon explained the agenda. At this time, the plaintiff Lee 00,000 members tried to take off the agenda and the employee of the Ministry of Labor who had been in the vicinity of the chairperson was prevented from taking off the agenda. After that, the chairperson Kim 00 followed the voting procedure by the direction of the chairperson, nine of the members, nine of the members, one of the opposing members, and the other five of the members were resolved.

(g) On the other hand, the Ministry of Labor places two persons in exclusive charge of the above meetings of the Council, and imposes on the Chairperson the duties of ‘I Man Man' for the Chairperson, ‘I Man Man Man' for the five members of the labor community, and for the five members of the management community, ‘I Man Man' for the five members,' for the management community.

The documents were prepared and distributed to the employees.

【Uncontentious facts, Gap evidence Nos. 7, 11 and 12 (including branch numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 5 and 8, the purport of the whole pleadings, and the purport of the whole pleadings

B) Specific determination

In full view of the above facts and the following circumstances recognized by the above evidence, it is difficult to see that there is a procedural defect in the deliberation and resolution, and even if there are some defects, it is difficult to see that there is a serious or objective defect even if there is a defect. Therefore, this part of the Plaintiffs’ assertion cannot be accepted.

(1) ① First, Article 7(2) of the Regulations on the Operation of the Deliberation Committee provides that the place of a meeting shall be notified in writing to each member by no later than three days before the meeting is held, except in extenuating circumstances. The Deliberation Committee did not have a space that can hold a meeting independently as a non-permanent council member, and the labor union changed the place from time to time due to interference with the progress of the meeting due to the passage of the meeting, etc. The need for changing the place of the meeting by the Plaintiff Democratic Labor Union members to interfere with the progress of the meeting, and there was a need for changing the meeting place by obstructing the meeting. The change of the meeting place was conducted through the Committee executive secretary meeting, the Committee's meeting was conducted through the Public Interest Committee, and there was no dissenting opinion among the members including Plaintiff 00 and Park 00 on the notice of the change of the meeting place, and in light of the fact that all the 15 members were present at the changed meeting place, it cannot be said that there is an error of change of the chairperson's meeting place.

1. ② Following the meeting, Article 7(3) of the Regulations on the Operation of the Deliberation Committee provides that a meeting may be held closed to the public through a resolution of the Committee, if the chairperson deems it necessary. In light of the fact that, at the time of the meeting, there was a need for the members of the Plaintiff Democratic Labor Union to proceed to the meeting in a closed manner due to interference with the progress of the meeting, such as Plaintiff Democratic Labor Union members’ attempt to enter the meeting place, etc., and the members, including Plaintiff 200 and Park Park 00, who received a notice from Kim Tae-tae, did not raise any objection to the suspension of the entire meeting, and the Plaintiff 20 and Park 00 demanded the suspension of the proceedings of the meeting. However, in light of the fact that there was no objection to the progress of the non-disclosure, and that the voting of the exempted limit of working hours is limited to the part where the voting was held without the participation of the jury, it is difficult to deem that the Deliberation Committee was unlawful.

③ The internal documents of the Ministry of Labor (see evidence A No. 12) appears to have been prepared to maintain order in order to smoothly proceed with the deliberation and resolution without being obstructed by the members of the Committee. While the above documents express the expression “I Man Man Man- Man’s restriction on the members of the labor community,” it seems to be aimed at protecting the Committee’s free deliberation by the acts of interference with the proceedings of the members of the labor community, not to restrict the academic significance and voting rights of the members of the labor community.

In fact, the employees of the Ministry of Labor did not restrict or interfere with the activities of the members of the labor community concerning the deliberation and resolution of the members of the labor community, and the plaintiff 50 was prevented from obstructing the progress of the meeting as seen earlier.

④ On the other hand, there was a continuous deliberation on the agenda on the limit of working hours exemption, and there was a voting on such agenda, and it is difficult to deem that there was no debate and deliberation procedure on the agenda on the limit of working hours exemption among the members of the labor community, as well as on the agenda and explanation thereof.

⑤ In addition to Plaintiff 5’s lecture 00 and Park Park 00 demanded the president Kim 00 to suspend the meeting, other above members did not raise any objection to the progress of the meeting, such as voting on the agenda on the limit of time-off.

3. Conclusion

Thus, all of the plaintiffs' claims of this case are dismissed as it is without merit.

Judges of the presiding judge 000

Judges 000

Judges

Related Acts and subordinate statutes

【Trade and Labor Relations Adjustment Act (Amended by Act No. 10339, Jun. 4, 2010)】

Article 24 (Full-time Officer of Trade Union)

(1) If a collective agreement prescribes otherwise or consented to by employers, workers shall provide the employer with labor prescribed in their employment contracts.

any trade union may be engaged exclusively in the affairs of the trade union.

(2) A person who is engaged exclusively in affairs of a trade union under paragraph (1) (hereinafter referred to as "full-time officer") shall be appointed during the period of said transfer.

No benefit shall be paid from the employer.

(4) Notwithstanding the provisions of paragraph (2), an association by business or place of business, if prescribed or agreed by a collective agreement.

Limit on the exemption of working hours determined pursuant to Article 24-2 (hereinafter referred to as "limit on the exemption of working hours") in consideration of the number of won, etc.

C) To the extent that does not exceed B an employee’s negotiation, grievance settlement, and accounting with the employer without loss of wages.

A trade union for the development of sound labor-management relations and affairs provided for in this Act or other Acts, such as occupational safety activities.

Maintenance and management may be conducted.

Article 24-2 (Working Hours Exemption Deliberation Committee)

(1) A committee for deliberation on exemption from working hours (hereafter referred to as "committee" in this Article) shall be established to set the limit on exemption from working hours.

The Ministry of Labor shall be established in the Ministry of Labor.

(2) The limits on the exemption from working hours shall be publicly announced by the Minister of Employment and Labor, as determined by the Committee, and shall be every three years.

may be decided by re-examination of whether or not there is a sex.

(3) The Committee shall be comprised of five members each recommended by the labor community and management community, and five public interest members recommended by the Government.

(4) The chairperson shall be elected by the Committee among public interest members.

(5) The Committee shall attend a majority of all incumbent members and vote.

(6) Matters necessary for qualifications, commissioning, operation of the Committee, etc. shall be prescribed by Presidential Decree.

Addenda No. 9930, January 1, 2010

Article 2 (Transitional Measures on Determination of Limit of Exemption from Working Hours Conducted for Initial Time)

(1) The Working Hours Exemption Review Committee shall grant a limit on the first working hours to be implemented after this Act enters into force by April 30, 2010.

Deliberation and resolution shall be made.

(2) Article 24-2 (5) shall apply where the Working Hours Exemption Review Committee fails to deliberate and make a resolution by the deadline prescribed in paragraph (1).

Notwithstanding the opinion of the National Assembly, public interest members may deliberate and resolve on the agenda only after hearing the opinions of the National Assembly.

[Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (amended by Presidential Decree No. 22269 of July 12, 2010)

Article 11-2 (Limit on Exemption from Working Hours)

The Deliberation Committee on Exemption from Work Hours pursuant to Article 24-2 (1) of the Act (hereinafter referred to as the "Committee") may determine the limit on exemption from work hours on the part of the relevant business or place of business pursuant to Article 24-2 (2) of the Act, taking into consideration the total number of union members of the business or place of business, the scope of the relevant duties, etc., and other relevant factors.

Article 11-5 (Term of Office of Members of Committee)

(1) The term of office of members of the Committee shall be two years.

Article 11-6 (Operation of Committee)

(1) The Committee shall deliberate upon a request from the Minister of Labor for deliberation to set a limit on exemption from working hours.

Deliberation and resolution shall be made within 60 days from the date of receipt of the request.

(6) Except as otherwise provided for in this Decree, matters necessary for operation of the Committee shall be determined by the Minister of Labor after hearing opinions

of this section.

[Operational Rules]

Article 7 (Convocation, etc. of Committee)

(1) Upon receipt of a request from the Minister of Labor for deliberation pursuant to Article 11-6 (1) of the Decree, the Chairperson shall hold a meeting as soon

shall be called to the meeting.

(2) When the chairperson intends to call a meeting of the Committee, he/she shall call the meeting at least three days prior to the meeting.

Each member shall be notified in writing, etc.: Provided, That this shall not apply in extenuating circumstances.

(3) If deemed necessary, the chairperson may proceed to a meeting closed to the public through a resolution of the Committee.

Addenda

Article 2 (Deliberation and Resolution on Public Interest Members)

Notwithstanding Article 11-6 (1) of the Decree, where the Committee determines a public interest member solely because it has failed to deliberate and resolve the limit of working hours exemption by April 30, 2010 pursuant to Article 2 of the Addenda to the Act on the partial Amendment of the Trade Union and Labor Relations Adjustment Act (Act No. 930), the period shall be extended by not later than May 15, 2010.