Plaintiff (Appointed Party) (Attorney Park Ho-hoon, Counsel for the plaintiff-appointed Party-appellant)

Busan Infrastructure Co., Ltd. (Law Firm Namsan, Attorneys Hah Ho-ho et al., Counsel for the defendant-appellant)

June 12, 2012

Changwon District Court Decision 2010Kadan22081 Decided May 17, 2011

1. Of the judgment of the court of first instance, the part against each of the plaintiffs (appointed parties) and the designated parties listed in the separate sheet as follows shall be revoked:

The defendant shall pay to the plaintiff (appointed party) KRW 1,510,680, KRW 1,147,790, KRW 5,540, KRW 40, KRW 40, KRW 2,099, KRW 5,040, KRW 5,040, KRW 5,000, KRW 6,247,125, KRW 6,247, and KRW 7, KRW 1,625,40, KRW 5,270, KRW 130, KRW 88, and KRW 6,50, KRW 650, and each of the above amounts shall be paid to the Appointed 20% interest per annum from February 1, 201 to May 18, 201, and KRW 20% interest per annum from the next day to the date of full payment.

2. The remaining appeal by the plaintiff (appointed party) is dismissed.

3. 1/10 out of the total costs of litigation shall be borne by the Plaintiff (Appointed Party) and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant filed an appeal against the plaintiff (appointed party, 1,810,680 won, 2, 1,47,790 won, 3,687,540 won, 2,399,940 won, 5,58,140 won to the Appointed 4, 6,747,125 won, 3,612,00 won to the Appointed 7, 8,570 won, 5,650 won, and 7,02,650 won to the Appointed 9, 2010 to the Appointed 3,612,000 won, 6% interest rate per annum from February 1, 2010 to the date of delivery of a duplicate of the complaint of this case, and 20% interest per annum from the date of full payment (the part of the appeal against the plaintiff is modified to the part of the judgment against the plaintiff).

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant shall pay to the plaintiff KRW 1,510,680, KRW 1,147,790, KRW 3,540, KRW 5,540, KRW 40, KRW 2,099, KRW 5,940, KRW 5,940, KRW 6,247,125, KRW 3,612,00, KRW 8, KRW 500, KRW 6,50, and KRW 6,500, KRW 6,502,650, and each of the above amounts shall be paid to the plaintiff at the rate of 20% per annum from February 1, 2010 to the date of delivery of a duplicate of the complaint of this case, and KRW 6,500 per annum from the date of full payment to the date of full payment.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff claimed the payment of consolation money for mental damage suffered by the Plaintiff and the designated parties due to the Defendant’s tort committed by the designated parties listed in the Plaintiff’s and the attached list (hereinafter “designated parties”) in order to avoid the payment of the annual and monthly paid leave allowance and the annual and monthly paid leave allowance, which was unpaid to the Defendant at the first instance court, and the first instance court dismissed the Plaintiff’s claim. The Plaintiff filed an appeal only for the annual and monthly paid leave allowance. Accordingly, the subject of the judgment by this court is limited to the above part.

2. Basic facts

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the whole pleadings in Gap evidence 1, 6, 11, 14, Eul evidence 1-1 through 13, Eul evidence 2-2 through 13, Eul evidence 3-1 through 13, Eul evidence 4 through 6, Eul evidence 10, 14, Eul evidence 15-1 through 3, Eul evidence 16, Eul evidence 17-1 through 3, and Eul evidence 17-3:

A. The Defendant is a company that employs approximately 4,600 full-time workers and produces industrial machinery, etc., and the Plaintiff and the designated parties are workers employed by the Defendant company, and they are members of the two industry infrastructure co-office (hereinafter “instant sub-office”) affiliated with the Korean Metal Trade Union.

B. On February 28, 2006, the Defendant and the Korean Metal Trade Union concluded a collective agreement in 2005, which applies to the instant sub-council (hereinafter “instant collective agreement”), and the term of validity of the instant collective agreement was set from April 1 to March 1 of the following year (Article 1 of the Addenda).

C. The Defendant and the Korean Metal Trade Union failed to conclude a new collective agreement by March 31, 2006, which terminated the validity period stipulated in the instant collective agreement. On February 1, 2010, the Defendant notified the instant sub-council that the instant collective agreement will be terminated.

D. Meanwhile, on February 28, 2006, at the time of entering into the instant collective agreement, the Plaintiff, 2, 3, 4, 6, 5, and 6 had already joined the instant sub-council, but the Appointors 7, 8, and 9 had already joined the instant sub-council on March 31, 2009.

D. In addition, Articles 48(4) and 49(4) of the instant collective agreement provide that “150% of the ordinary wages during January of each year shall be paid to the unused annual leave and the monthly leave,” and 150% of the ordinary wages of the Plaintiff and the designated parties on January 209 are as indicated in the “150% of the ordinary wages” among the calculation details of the annual and monthly leave allowances.

3. Determination as to the cause of action

A. The parties' assertion

1) The plaintiff's assertion

Article 2 of the Addenda to the instant collective agreement provides that the validity of the instant agreement shall continue until the renewal agreement is concluded, notwithstanding the provisions of Article 32(3) of the Trade Union Act and Labor Relations Adjustment Act, and the instant collective agreement shall remain effective until August 1, 2010 after the termination of the instant collective agreement and the Defendant notified the termination thereof. Accordingly, the number of days of annual and monthly leave paid to the Plaintiff and the designated parties in accordance with the instant collective agreement until August 1, 209 is indicated in the “(monthly) number of days of annual leave/Plaintiff’s assertion” in the calculation of annual and monthly leave allowances in attached Form 48 and Article 49 of the instant collective agreement. The Defendant is obligated to pay the amount of money in the “amount of annual and monthly leave allowances” and damages for delay in calculating the annual and monthly leave allowances, which are the amount obtained by multiplying ordinary wages by 150%, among the calculation of annual and monthly leave allowances.

2) The defendant's assertion

① The collective agreement of this case expired on March 31, 2006. Article 2 of the Addenda automatically extended the term of validity under Article 32(3) of the Trade Union and Labor Relations Adjustment Act and Article 32(2) of the Trade Union and Labor Relations Adjustment Act. Ultimately, the collective agreement of this case was terminated on March 31, 2008. Thus, since the designated parties did not have a duty to use annual leave allowances on March 31, 2009, since the collective agreement of this case was terminated, the collective agreement of this case was not applied to the designated parties 7, the designated parties 8, and the designated parties 9, and the employment contract of this case was not applied to the employment contract between the above designated parties and the defendant. Since the annual leave allowances of this case were not provided to the designated parties 209 under the premise that they did not have a right to use annual leave allowances from March 31, 2008, the Defendant did not provide the designated parties excluding the Plaintiff’s annual leave allowances from March 2008.

B. Whether to recognize the validity of the instant collective agreement

1) Relevant provisions

○ Addenda to the instant collective agreement

Article 1 The effective period of this Convention shall be from April 1 until the end of March of the following year.

Article 2 (3) of the Trade Union and Labor Relations Adjustment Act, notwithstanding the provisions of Article 32 (3), the validity of this Convention shall continue until a renewed agreement is concluded even after the term of validity of the agreement expires.

Article 32 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”).

No collective agreement referred to in paragraph (1) shall provide for the effective period exceeding two years.

Where the term of validity is not specified in the collective agreement under paragraph (2) or exceeds the period under paragraph (1), such term of validity shall be two years.

Where a new collective agreement is not concluded even though both parties continue to conduct collective bargaining before and after the expiration of the term of validity of the previous collective agreement under paragraph (3), the previous collective agreement shall remain effective for three months from the expiration date of the term of validity, except as otherwise agreed upon: Provided, That where the collective agreement provides that the effect of the previous collective agreement shall remain in force until the time when the new collective agreement is concluded even after the expiration date of the term of validity thereof, such agreement shall prevail, and either party may terminate the previous collective agreement by notifying the other party six months prior to the date on which it

2) Determination

In principle, the term of validity of a collective agreement may be left to the autonomy of the parties to the agreement. However, the provision that limits the term of validity of a collective agreement would result in unfairly binding the parties because it could not adapt to changes in the social and economic conditions of the industrial society changing so long as the term of validity of the collective agreement is too long, and if so, it would go against the purpose of maintaining appropriate working conditions and promoting stability in labor-management relations by limiting the term of validity to a certain extent so that it would be appropriate and appropriate to adjust the contents of the collective agreement in a timely fashion and concrete manner. Further, Article 35(3) of the Trade Union Act provides that if collective bargaining is in progress for renewal after the expiry of the term of validity of the previous collective agreement, the previous collective agreement shall not be applied to the case where there is no provision that the previous collective agreement shall continue to be in force, and it shall not be deemed that the said provision is valid within 9 years after the expiration of the term of validity of the previous collective agreement, and it shall not be deemed that it is valid within 3 months after the expiration of the term of the previous collective agreement.

Therefore, the so-called "the automatic extension clause" is deemed to be "the separate agreement" as stipulated in the proviso of Article 32 (3) of the Trade Union Act and thus, can be terminated by notifying the other party not later than six months prior to the date on which one of the parties intends to terminate the contract. As such, one of the parties who intend to escape from the binding force of a collective agreement which remains in force after the expiration of the term under the automatic extension clause can prevent the collective agreement which goes against his/her will from continuing its validity for a long time against the other party by giving notice of termination. Thus, in the case of the automatic extension clause, the purpose of Article 32 (1) and (2) of the Trade Union Act can be achieved through the termination right under the proviso of Article 32 (3) of the Trade Union Act. Thus, unlike the case of the automatic extension clause, even if it is interpreted that the effective period of a collective agreement which remains in force under the automatic extension clause does not go against the purpose of Article 32 (1) and (2) of the Trade Union Act.

Therefore, if there is an automatic extension clause in a collective agreement, it is reasonable to view that the agreement remains effective notwithstanding the provisions of Article 32 (1) and (2) of the Trade Union Act, unless one of the parties terminates it.

In this case, the term of validity of the instant collective agreement has expired on March 31, 2006, and no new collective agreement has been concluded thereafter. The fact that Article 2 of the Addenda to the instant collective agreement provides, “Notwithstanding the provisions of Article 32(3) of the Trade Union and Labor Relations Adjustment Act, the validity of this agreement shall continue until the renewal agreement is concluded even after the expiry of the term of validity of the agreement,” and the fact that the Defendant notified the instant branch association of the termination of the instant collective agreement on February 1, 2010 is as seen earlier.

Therefore, it is reasonable to view that the collective agreement of this case was invalidated on August 1, 2010 after six months from February 1, 2010, in which the Defendant’s expression of intent to terminate the collective agreement of this case was delivered, and that the collective agreement of this case also applies to the designated parties 7, the designated parties 8, and the designated parties 9, who joined the instant branch on March 31, 2009, prior to the invalidation.

C. The number of days of annual and monthly leave of the Plaintiff and the designated parties

1) Relevant provisions

○ Article 48 of the instant collective agreement

The company under paragraph (1) recognizes one day’s paid leave to its members who have worked a month;

○ Article 49 of the instant collective agreement

The company referred to in paragraph (1) shall pay 10 days to its members who have worked for at least 90 percent of a year, 8 days of paid leave, and 1 days of paid leave for its members who have worked for at least two consecutive years in addition to a one-day paid leave.

○ Article 60 of the Rules of Employment of the Defendant

Paragraph 2 shall grant annual leave pursuant to Articles 59 and 59-2 of the former Labor Standards Act to employees in office: Provided, That where it is deemed that there is a problem in the production plan, it may be adjusted.

○ Article 59 of the former Labor Standards Act

The user referred to in paragraph (1) shall grant 15 days of paid leave to workers who have worked at least 80 percent of a year.

An employer under paragraph (4) shall grant workers who have worked for not less than 3 years one day’s paid leave for each two years of continuous employment years exceeding the first one year during the paid leave under paragraph (1). In this case, the total number of days of paid leave, including additional paid leave, shall not exceed 25 days.

In the application of the provisions of paragraphs (1) through (3), the period of suspension of work for an employee due to an occupational injury or disease, and the period of suspension of work for a woman before and after childbirth pursuant to the provisions of Article 72 shall be deemed the period of attendance at work.

2) The number of days of annual and monthly leave of absence of the Plaintiff, 7, 8, and 9, other than the designated parties;

By December 209, the number of days of the Plaintiff’s annual and monthly leave (hereinafter the same shall apply) calculated by December 3, 2009 pursuant to the provisions on the annual and monthly leave of this case (hereinafter the same shall apply) is 33 days, the number of days of annual leave of 20 days, the number of days of annual and monthly leave of 35 days, the number of days of annual leave of 33 days, the number of days of annual and monthly leave of 40 days, the number of days of annual leave of 5 days, the number of days of 5th annual and monthly leave of 6 days, the number of days of 30 days, the number of days of 6th annual leave of 38 days, the number of days of 27 days, the number of designated 3 days, 42 days, 5 days, 5 days, 5 days, 6 days, 13 days, 4 days for the designated parties, 36 days for the designated parties, 27 days, 4 days for the designated parties, 28 days.

(iii) the number of days of annual and monthly leave of 7, 8, and 9 of the designated parties;

A) Criteria for calculating the number of days of leave

Since annual leave is a remuneration for work for one year, it is generated by the completion of one year's work, and the annual leave in 2009 shall take effect on January 1, 2009, which is the day following the completion of work for one year in 2008, and on March 31, 2009, the fact that the designated person 7, the selected person 8, and the selected person 9 joined the branch of this case on March 31, 2009 is recognized as above, and therefore, the number of days of annual leave in 2009 by the selected person 7, the selected person 8, and the selected person 9's number of days of annual leave in 209 shall be determined by the rules of employment of the defendant applied to the above selected person as of January 1, 209.

(B) the number of days of annual and monthly leave of 8 designated parties and 9 designated parties;

The fact that Appointers 8, 9 worked for one year in 2008, the number of days of annual and monthly leave of 8 designated parties until December 2009 calculated in accordance with the rules for the defendant's employment and the calculation of the number of days of annual and monthly leave of this case, the number of days of annual leave of 32 days in week 2, the number of days of annual and monthly leave of 9 designated parties 39 days in year, the number of days of designated parties 8 days in year and 9 days in case of 6 days in case of dispute between the parties. Thus, the number of days of leave subject to the claim for annual and monthly leave of 8 days in case of the designated parties and 33 days in case of the designated parties 9.

(C) the number of days of annual and monthly leave of the Appointor 7;

The facts that the number of days of monthly leave until December 2009 calculated pursuant to the calculation of the number of days of monthly leave of the collective agreement of this case is nine days is no dispute between the parties.

However, with respect to the number of days of annual leave in 2009, the Plaintiff asserts that even if the selected 7 was temporarily retired from office due to an individual disease unrelated to work from January 1, 2008 to June 30, 2008, the period of temporary retirement is a day without a duty to work, and it should be excluded from the prescribed number of days of work, and as long as the remaining period of work is at work, the annual paid leave occurs.

In this case, the designated person 7 was granted leave of absence from personal illness from January 1, 2008 to June 30, 2008, and the remaining period of absence does not conflict between the parties. However, Article 60 of the defendant's rules of employment and Article 59 of the former Labor Standards Act require the attendance of at least 80 percent per year as the requirement for acquiring annual paid leave. "one year" means the remaining number of days after deducting the fixed number of days from the total number of days of one year, i.e., the number of days of absence from the prescribed number of days of work, i., the number of days of paid leave from the prescribed number of days of work, i.e., the number of days of personal illness irrelevant to the defendant's rules of employment and duties under the former Labor Standards Act, and Article 59 of the former Labor Standards Act requires the attendance of at least 80 percent per year as the requirement for acquiring annual paid leave of absence from the prescribed number of days of work (which is excluded from the fixed number of days of work).

Therefore, the Selection 7 cannot be deemed to have worked 80% out of the prescribed working days in 2008, so in the case of the Selection 7, the annual paid leave in 2009 is not recognized. The plaintiff's assertion in this part is without merit.

D. Whether the Plaintiff and the designated parties have used annual and monthly leave

The defendant's annual and monthly leave of absence is notified in writing to the remaining designated parties except the plaintiff and the designated parties 7, and the fact that the plaintiff and the designated parties have obstructed access to the office and access to the computer system on the designated date of leave does not conflict between the parties, but the defendant unilaterally designated the leave date and prevented access by the plaintiff and the designated parties on the designated date. The fact that the defendant unilaterally designated the date of leave and the designated parties have prevented access by the plaintiff and the designated parties on the designated date cannot be deemed to have used the annual and monthly leave.

This part of the defendant's argument is without merit.

(e)the amount of annual and monthly leave allowances;

Therefore, the defendant is obligated to pay to the plaintiff 1,510,680 won annual leave allowances (251,780 won x 6 days), 1,147,790 won (163,970 won x 7 days), 5,187,540 won (167,340 won x 31 days) to the selected person 3, 2,099,040 won (262,380 won x 8 days) to the selected person 5, 9,058,140 won (215,670 x 42 days), 6,125 won (249,85 x 25 days) to the selected person x 16,500 won (25 days x 16,500 won) of the Commercial Act x 250 days of the annual leave allowances x 205 days of the appointment of each of the designated persons.

4. Judgment on the defendant's defense

The Defendant, pursuant to Article 61 (Article 59-2) of the former Labor Standards Act, took all measures to promote the use of annual and monthly paid leave to the Plaintiff and the designated parties, and the Defendant is not obliged to pay annual and monthly leave allowances to the Plaintiff and the designated parties.

However, the purpose of the annual paid leave promotion system under Article 59-2 of the former Labor Standards Act is to preserve mother and child wages without losing the purpose of the system, to improve the actual condition of paid leave system used as a means to receive wages, and to ensure the effectiveness of the paid leave system. However, the former Labor Standards Act, while reducing statutory working hours from 44 hours a week to 40 hours, is balanced by reasonably adjusting the monthly paid leave system, such as abolition of the annual paid leave use promotion system, the introduction of the annual paid leave use promotion system, and the unpaid leave system, and reflecting the overall position of workers and employers as a whole, it cannot be concluded that the above system is favorable to workers only when it appears only when it introduced the annual paid leave use promotion system, and therefore, it is difficult for an employer to introduce the annual paid leave use promotion system despite the enforcement of the former Labor Standards Act, and it is difficult for the employer to interpret the former Labor Standards Act as invalid or to reflect the amendment of the former Labor Standards Act’s employment regulations and its content without reflecting the aforementioned amendment of the employment regulations within the date.

In the instant case, comprehensively taking account of the purport of the entire arguments in the statement Nos. 5, 10, and 11, the Defendant was a company that employs 4,379 full-time workers around September 30, 203. In the process of concluding the instant collective agreement, the Defendant attempted to reflect the amendment of the former Labor Standards Act, such as the integration of annual and monthly paid leave and the promotion of annual paid leave use in the instant collective agreement, but the instant branch refused it and did not abolish the monthly paid leave system for 40 hours, but did not introduce the annual paid leave promotion system. The Defendant and the instant branch failed to introduce the annual paid leave promotion system, and the instant branch did not request the renewal of the collective agreement from November 6, 2007 to December 30, 2007 to August 7, 2008. However, the Defendant demanded the renewal of the collective agreement, such as the deletion of the annual salary system, etc. on the following occasions.

According to the above facts, while concluding the collective agreement of this case on February 28, 2006, which was after the enforcement of the former Labor Standards Act, decided to reduce the weekly working hours to 40 hours, it appears that the agreement was not reached on the improvement of the monthly paid leave system, the annual paid leave promotion system, etc. was not reflected in the collective agreement of this case. The collective agreement of this case, which did not stipulate the annual paid leave promotion system due to the failure to reach agreement between the parties, is null and void as it sets working conditions that fall short of the standards set by the former Labor Standards Act, or when the former Labor Standards Act enters into force, it cannot be deemed that the annual paid leave promotion system applies to the branch of this case and the defendant as a matter of course (the defendant did not actually take measures such as encouraging workers to use the annual paid leave even before 209 years prior to the enforcement of the annual paid leave promotion system, and it appears that the annual and monthly paid leave allowance under the collective agreement of this case was paid to workers).

Therefore, the defendant's defense, based on the premise that the annual paid leave promotion system is applied between the plaintiff, the designated parties, and the defendant, is without merit.

5. Conclusion

Therefore, the claim of this case by the plaintiff and the designated parties shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed, without merit. Since the part against the plaintiff and the designated parties who ordered the above payment among the judgment of the court of first instance is partially unfair, it shall be revoked, and it shall be ordered to pay the above amount, and the remaining appeal by the plaintiff shall be dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

판사 서영애(재판장) 김성래 김샛별

1) Article 6974 of the former Labor Standards Act (Act No. 6974, Sept. 15, 2003; hereinafter “former Labor Standards Act”). The Defendant’s employment rules were amended on Nov. 1, 2008, but the rules of employment under Article 60 of the Rules of Employment refer to the former Labor Standards Act.

2) According to the Defendant’s rules of employment, the Appointed 8 is deemed to have a 25-day annual leave, but the Plaintiff claims a 32-day annual leave (the 23-day annual leave + the 9-day monthly leave) pursuant to the instant collective agreement.