2015No302 A. Violation of the Labor Standards Act

B. Violation of the Labor Union and Labor Relations Adjustment Act

1. A. B. A.

2. (a) 7

3. B. C. C.

4. (a) A;

A Representative Director A

Prosecutor (In respect of Defendants)

Kim Tae-hun (Lawsuits) and the highest police officer (Trial)

Law Firm Bernero, Attorney Ma Sung-mun (for the Defendants)

Daejeon District Court Decision 2014Gohap300 Decided January 15, 2015

September 17, 2015

Of the judgment of the court below, the part of the judgment against C&A is reversed.

C. C. 3,00, 000 won, Defendant A’s limited liability company shall be punished by a fine of 5,000,000 won, respectively.

C. C. C. 100,000 won converted into one day if the above fine is not paid

shall be confined in a workhouse.

To order the Defendants to pay an amount equivalent to the above fines.

All appeals filed by the prosecutor against the defendant A and B are dismissed.

1. Summary of the grounds for appeal;

A. Fact-finding (not guilty portion in the judgment of the court below)

The Daejeon Northern Branch A branch of the Korea Metal Trade Union (hereinafter referred to as the "Trade Union") requested the Defendant A limited company (hereinafter referred to as the "Defendant Company") to conduct collective bargaining upon the expiration of the term of validity of the collective agreement on March 30, 2012, but the negotiation has not been conducted due to the difference in the procedures for the simplification of the bargaining counter establishment pursuant to Article 20, so the trade union of this case cannot be deemed to violate the procedures of Article 105 of the collective agreement of the Defendant Company (hereinafter referred to as the "collective agreement of this case"). Defendant C is one of the negotiating members of the instant trade union, and the purpose of the visit of L, which was one of the negotiating members of the instant trade union, is "the preparation for collective bargaining," and the place of visit may be deemed to unreasonably restrict legitimate union activities on the ground that it is not a "trade union office," but it is erroneous in the judgment of the court below that there is an error of misconceptioning the Defendant and the Defendant Company of this part of the facts charged.

B. Unreasonable sentencing

The sentence of the lower court against the Defendants (Defendant A: fine of KRW 5 million; fine of KRW 2 million; fine of KRW 3 million for Defendant C; fine of KRW 3 million for Defendant C; and fine of KRW 5 million for Defendant A limited liability) is too uneased and unreasonable.

2. Judgment on the misunderstanding of facts (not guilty portion in the judgment of the court below)

A. Summary of this part of the charges

1) Defendant C 1

An employer shall not control or intervene in the organization or operation of a trade union by workers.

Nevertheless, on September 18, 2012, the Defendant: (a) around September 18, 2012, the Defendant: (b) visited LA’s office to prepare collective bargaining, which was delegated collective bargaining by the instant Trade Union; (c) but (d) refused access solely on the ground that LA’s visit was not the date of negotiation.

Accordingly, the Defendant engaged in unfair labor practices that control and intervene in the organization and operation of trade unions.

2) Defendant Company

The Defendant, at the time and place specified in the foregoing paragraph 1, was controlled and involved in the labor union activities of the Defendant, who is a labor director of the Defendant.

B. The judgment of the court below

Article 105 (1) of the collective agreement of this case provides that if a trade union or a company makes a request for renewal of collective agreement on wages and working conditions, both parties shall comply with the date required. Paragraph (2) provides that "Any request for collective bargaining shall be made in writing at least 10 days prior to the date and time of negotiation, and if the other party's request is to be modified for unavoidable reasons, it shall be notified within 3 days." Thus, the trade union and the company, which are subject to the above provision, may demand collective bargaining at any time, but if they are able to prepare for such collective bargaining with sufficient time and prevent unnecessary conflict, they shall be deemed that it is reasonable to establish a mature culture of labor and management as a result of prompt collective bargaining by preventing such collective bargaining from being able to enter and depart from the other party's request for such collective bargaining. It is reasonable to say that there is no reasonable ground to believe that the collective bargaining agreement would be no more than 10 days prior to the date of such request."

C. Judgment of the court below

1) A trade union activity within a workplace shall be governed by the restrictions imposed on the user’s right to manage facilities, but such regulations or restrictions should also be harmonized with legitimate labor union activities within a reasonable scope. Therefore, it shall be deemed that a trade union or union members are able to engage in legitimate union activities in accordance with the employer’s reasonable rules or restrictions to the extent that they do not infringe on the essential part of the right to manage facilities in the conduct of union activities. In the event that a trade union or union members delegated the delegation of the right to manage facilities intend to enter a workplace for the purpose of collective bargaining, such as preparation for collective bargaining, discussions on collective bargaining, and negotiations, even if they are not on the date of negotiations, it is reasonable to view that access should be allowed within the reasonable scope of union activities, and the same applies even if the negotiating members are not employees of the relevant

2) According to the evidence duly adopted and examined by the lower court, the lower court requested the Defendant Company to conduct collective bargaining on September 17, 2012 as the date and time to negotiate 3 p.m. (including L in the list of the negotiating members of the said trade union notified at the time). The Defendant Company notified the instant trade union on September 17, 2012 that it is inevitable to adjust the negotiating schedule; ② the Defendant Company visited the Defendant Company’s office to prepare for the negotiations on September 18, 2012; ② the Defendant Company made visits to the Defendant Company’s company’s entry on the part of the Defendant Company; and the Defendant Company intended to enter the Defendant Company. At the time, the date of the negotiations to be negotiated.

The fact that L was instructed to prohibit entry (No. 2013 type 7582 records of evidence of the case No. 2, No. 2, No. 801-802, No. 7, No. 2838, No. 2914, No. 2960-2, No. 2961), (3) the head of the Korea Local Employment and Labor Agency as of September 19, 2012, "the defendant company as of September 18, 2012 that entry and departure from L is likely to engage in unfair labor practices" was sent to "the request to permit entry to the office of the trade union, No. 2, No. 801 to 802, No. 7, No. 2838, No. 2914, No. 1343, Dec. 1, 207; and (4) the above change of the terms and conditions of employment between the defendant company and the company should be made within 70 days prior to negotiations.

3) According to the above facts, the request for collective bargaining under the collective bargaining agreement of this case provides that at least ten days shall be submitted in writing. However, considering that the first collective bargaining was conducted on September 27, 2012, when ten days have not passed since the request for collective bargaining was made on September 17, 2012, the first collective bargaining was made, the time when ten days have not passed since the above provision cannot be deemed to be bound by the other party to the request for bargaining, it is difficult to readily conclude that the above provision has no effect on the request for collective bargaining. Furthermore, regardless of whether the labor union of this case requested as of September 17, 2012 as of September 18, 2012, L, the negotiating member, regardless of whether the collective bargaining could be conducted, did not err in the misapprehension of the legal reasoning for the public prosecutor’s access to the above part of the facts charged, or in the misapprehension of the company’s normal operation of the company’s labor facility management for the preparation or defense related to the above measures. Thus, the court below did not have any justifiable reasons to deem Defendant Company’s access to the above.

This case is a case where the Defendants had workers work in excess of the extended working hours, or had workers control and intervene in the organization, operation of the labor union of this case and give disadvantages to workers on the ground of legitimate partnership activity, and its criminal liability is not against the law.

However, in the case of the crime of violating the Labor Standards Act, there are other circumstances to be considered in light of the circumstances, and considering the means and results of the crime of this case and the circumstances before and after the crime, etc. comprehensively considering the various sentencing conditions under Article 51 of the Criminal Act, the lower court’s sentence against the Defendants is too appropriate and too unreasonable and unfair. Thus, the prosecutor’s allegation of unreasonable sentencing in this part is without merit.

4. Conclusion

Therefore, the prosecutor's appeal against the defendant company is reasonable, and the prosecutor's appeal against the defendant company is dismissed without examining the prosecutor's argument of unreasonable sentencing against the above defendants, and the part against the defendant company among the judgment below is reversed under Article 364 (6) of the Criminal Procedure Act, and the prosecutor's appeal against the defendant A and B is again decided as follows. Since there is no reason to appeal against the prosecutor's defendant A and B, it is all dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

【Grounds for the judgment to be used again for Defendant C and Defendant Company】

Criminal facts

1. Defendant C 1

(a) An employer shall not control or intervene in the organization or operation of a trade union by a worker, and shall not give any disadvantage to a worker on the ground that the worker has performed justifiable acts for the operation of the trade union;

On December 11, 2012, 15:30 on December 15, 2012, Defendant C and C visited the Defendant Company’s emotional book. In order to educate the members of the World Metal Branch A branch of the Korean Metal Workers’ Union, the Lee Jong-hun, the head of the external cooperation department of the World Metal-dong Branch of the Korean Metal Workers’ Union, was visited as an instructor. However, despite the absence of any restrictions on the operator’s status or the contents of lectures under the collective agreement, Defendant C and C refused to receive Lee Jong-hun on the ground that he would be the dismissed status and the contents of lectures, and that he would become the opposing labor-management relations. In order to implement Lee Jong-dong and education, 00-hour wages were deducted from 29-hour wages for 0.5 minutes on the basis that 0-hour wages were collected in front of the written book.

As a result, Defendant C and A conspired to control and intervene in the organization, operation, and disadvantage on the ground of legitimate partnership activities.

(b) No employer shall control or intervene in the organization or operation of a trade union by a worker;

Nevertheless, on September 18, 2012, the Defendant refused to enter the office of a trade union to prepare collective bargaining, even though L, the director of the UNPPPU, who was delegated collective bargaining by the labor union partnership of the instant case, attempted to visit the office of the trade union to prepare collective bargaining. However, the Defendant refused to enter the office solely on the ground that the date of negotiation is not the date of negotiation.

Accordingly, the Defendant engaged in unfair labor practices that control and intervene in the organization and operation of trade unions.

2. Defendant Company

(a) An employer shall not exceed 40 hours a week, excluding recess hours, and work hours a day in excess of 8 hours and shall not extend work hours in excess of 12 hours a week;

Nevertheless, A and B, the representative director of the Defendant Company, were the head of the Defendant Company, from January 4, 2010 to January 10, 2010, worked for more than 105 workers, such as 12 hours a week on the business operation of the Defendant Company, at the same place of business, from around January 4, 2010 to around January 10, 201. From around that time to March 28, 201, B violated the limit of overtime work by allowing them to work for more than 4,485 workers, such as the statement of violation of the attached work hours in the judgment of the lower court, as in the statement of the judgment, from around April 1, 2012 to August 21, 2012.

B. At the time and place specified in the above 1-A, the Defendant Company: A, the representative director of the Defendant Company, and C, the labor director of the Defendant Company, controlled and interfered with the labor union activities as above with respect to the duties of the Defendant Company, and engaged in any act unfavorable to the employees.

C. The Defendant Company, at the time and place specified in the above paragraph 1-B, controlled and intervened in the labor union activities as above in relation to the Defendant Company’s business affairs.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each legal statement of witness L and leap species;

1. An investigation report (a previous disposition taken for the period of partial exclusion during the entire period of violation of the limit on overtime work);

Report on the related contents)

1. Collective agreement;

1. Details of violation of working hours (a table), and details of monthly violation;

1. A case of request for part-time difficulty following the progress of education for all the union members, a case of request for entry to and departure from a trade union, and an E-association;

The response to the question, the request for the interruption of unfair labor practices, the request for the restraint of illegal collective action

1. The status of the renunciation of permission on December 11, 2012;

1. Register of regular entrance and exit (old-time officers, 2 labor union instructors), the place of education for outside instructors of a branch, certificates of fact, and subscription;

Advisor (education of 2 labor union members)

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

C. C. : Articles 90, 81 subparag. 1, 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act; and

§ 30). Selection of each fine

○ Defendant Company: Articles 115, 110 subparag. 1, and 53(1) of the Labor Standards Act; each trade union

Articles 94, 90, and 81 subparag. 1 and 4 of the Labor Relations Adjustment Act, and each fine

Selection

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

C : Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

This case is a case where the Defendants had workers work in excess of the extended working hours, or had workers control and intervene in the organization, operation of the labor union of this case and give disadvantages to workers on the ground of legitimate partnership activity, and its criminal liability is not against the law.

However, in the case of the crime of violating the Labor Standards Act, there are circumstances to consider in light of the circumstances, considering the fact that there was an agreement between workers and overtime work, and the method and result of the crime of this case, and the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the circumstances before and after the crime, shall be comprehensively considered to determine the punishment as ordered.

Judge Lee Young-young

Judges Lee Jon-young

The promotion and exchange of strike;