Mogin Pream Co., Ltd. (Law Firm Square, Attorney Jeong-soo, Counsel for defendant-appellant)

The Chairperson of the National Labor Relations Commission

Defendant joining the Defendant (Attorney Lee Jae-hoon et al., Counsel for defendant-appellant)

November 10, 2010

Seoul Administrative Court Decision 2009Guhap52028 decided June 17, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal, including the part arising from the supplementary participation, shall be borne by the Plaintiff.

The decision of the first instance court shall be revoked. The decision of the National Labor Relations Commission shall be revoked on October 14, 2009 between the Plaintiff and the Defendant Intervenor (hereinafter referred to as the “ Intervenor”) with respect to the case of application for unfair ex officio relief, which was rendered by the Central Committee for reexamination.

1. cite the judgment of the first instance;

The reasons why this Court is used for this case are as stated in the reasoning of the judgment of the first instance except for the dismissal as follows 2. Thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts to be dried;

(a) The part 7 (4) is used as follows, and the part 8 (based on recognition) is added to “A No. 15” column.

“(4) On April 1, 2009, the Plaintiff Company: (a) divided the business division, such as the corporate business division, which was affiliated with the Plaintiff Company, into the following parts; (b) Hyundai B&P established Hyundai B&P. The Hyundai B&P divided the total number of issued and outstanding shares into the Plaintiff Company and the transfer of the business division divided from the Plaintiff Company. While dividing Hyundai B&P, the Plaintiff Company determined that the employment and related legal relations (including retirement allowances, loans, etc.) with respect to all kinds of services in the divided business division were succeeded to by Hyundai B&P since April 1, 2009.

On April 1, 2009, on April 1, 2009, 192 employees of Hyundai B&P Co., Ltd., Hyundai B&P, Inc., Ltd., a food business category of 28.3 billion won in capital, IT corporation business, oil pumps business, and gold divers business, 190 workers of Geum River industry, and 142.

[....]

B. Part 8, "C. Determination", as follows, is written.

"C. Determination"

(1) Whether an individual employee can exercise the right to refuse for the transfer of labor relations when a company is divided

(A) As a matter of principle, the labor relationship for workers engaged in the business subject to division is comprehensively succeeded to the newly incorporated company. However, when a company is newly established due to corporate division, employees form a labor relationship with the other party to the existing labor contract. In light of the freedom of contract that forms a legal relationship through free decision-making by the parties concerned, this goes against the principle of self-determination by forcing workers to enter into a labor relationship with the employer who did not freely choose. Furthermore, in cases where a company divides a specific business part as part of restructuring in order to overcome business objectives or managerial crisis, such as improving business efficiency, etc., if the newly incorporated company fails to overcome business crisis and goes bankrupt, the employee whose labor relationship is succeeded to the newly incorporated company is practically dismissed without being subject to the restriction on dismissal due to business reasons stipulated in the Labor Standards Act. Considering the above circumstances, in principle, the labor relationship for workers engaged in the business subject to division can be excluded from the right to refuse succession of the newly incorporated company, but the right to refuse the labor relationship is excluded from the right to be succeeded.

(B) In order to ensure that an employee exercises the right to refuse, as a matter of principle, a reasonable period should be given to an employee subject to comprehensive succession in accordance with the generally accepted social norms. The Plaintiff Company: (a) on March 31, 2009, held an explanatory meeting, etc. in relation to corporate division and notified the former employees of the change of organization; (b) did not individually notify the former employees of the change of organization; (c) on April 2009, the Intervenor, etc. and the former employees, including the Intervenor, received the wage statement in the name of Hyundai B&P PP Co., Ltd. and confirmed that the former employees were changed to Hyundai B&P, Inc. only after being notified by the Ministry of Labor of the fact that the employment insurance report was reported by the Ministry of Labor on May 209; and (d) the Plaintiff did not grant a reasonable period necessary for exercising the right to refuse. Moreover, on May 14, 2009, the Intervenor submitted the Plaintiff’s written objection

(2) Whether it is a practice to transfer the labor relationship to an affiliated company upon division of the company within the Plaintiff Company, or whether workers have given prior and comprehensive consent thereto

(A) The so-called transfer of a worker to another company that he/she employs to be engaged in the business of another company is terminated by an agreement between the previous company and the previous company that will be engaged in the business or transferred the status of the employer under the labor contract. Thus, barring any special circumstance, it becomes effective with the consent of the worker, barring any special circumstance. Furthermore, in cases where a worker is transferred between a group of corporations that engage in social or economic activities like an enterprise group, with a certain degree of close relationship in its organization, activities, etc., and with a group of corporations that engage in social or economic activities, the practice of transferring the worker into another company without the consent of the employees is established in light of the purpose of Article 20 of the Labor Standards Act (see, e.g., Supreme Court Decision 205Du8179, Jan. 12, 2006). In addition, if such practice is clearly approved as a normative fact that regulates the labor relations within the company, or if it is naturally established within the company’s employees, it shall be established as an employer under Article 2019 of the Labor Standards Act (see Supreme Court Decision 2019Du17.207.

(B) The Hyundai Group, to which the Plaintiff Company belongs, has divided the company several times from 2001 to 2008, and has moved the relevant workers into a new company, etc., and had consultation with the labor union at that time, but did not have obtained individual consent from the workers, and the Plaintiff Company may order the new company to transfer to a new company.

However, solely on the above circumstances, it is insufficient to view that the Plaintiff Company obtained comprehensive prior consent by specifying the basic working conditions, such as the work to be performed in the company, or that most workers belonging to the Plaintiff Company take up a transfer between the affiliates even without the consent of the employees.

(3) The transfer of this case has no effect. The decision on review is lawful.

3. Conclusion

The plaintiff's appeal is dismissed.

Judges Kim Jong-dae (Presiding Judge)