National Bank of Korea (Attorney Han-il et al., Counsel for defendant-appellee)

The Chairman of the National Labor Relations Commission

Intervenor 1 and 100 others (Law Firm citizen, Attorneys Kim Ba-soo, Counsel for the intervenor-appellant)

April 21, 2010

1. On September 23, 2009, the National Labor Relations Commission revoked the part concerning the change in the outcome of the decision in the review as to the application case for a correction of discrimination against the Plaintiff and the Defendant’s Intervenor and 75 other than the Defendant’s Intervenor, and the 8th National Bank National Bank.

2. The plaintiff's remaining claims are dismissed.

3. The 1/5 of the costs of the lawsuit, including the costs incurred by the supplementary participation, shall be borne by the Plaintiff, and the remainder by the Defendant and the Intervenor joining the Defendant.

The review decision made by the National Labor Relations Commission on September 23, 2009 between the Plaintiff and the Intervenor and 75 other (hereinafter “the Intervenor, etc.”) on September 23, 2009 is revoked.

1. Details of the decision on retrial;

A. The Plaintiff is an employer who runs the banking business, etc. with 24,000 regular workers employed by having its head office at the above address. The Intervenor, etc. is a retired worker from the date of February 28, 2009 to April 10 of the same year while he/she joined the Plaintiff between April 11, 2005 and November 1, 2007 and worked as an internal control inspector.

B. The Intervenor, etc. filed an application for correction of discriminatory treatment with the Seoul Regional Labor Relations Commission by asserting that the Plaintiff’s payment of commuting expenses, heavy meals, etc. to the Intervenor, etc. is discriminatory treatment compared to the workers of the wage peak system, and that it constitutes discriminatory treatment. On June 22, 2009, the said Regional Labor Relations Commission recognized the person in exclusive charge of the first-point prosecutor of the wage peak system as the comparative worker, and ordered the Intervenor, etc. to pay the difference between transportation expenses and heavy meals received by the comparative worker, the Intervenor, etc. during the said period, based on the discriminatory treatment of the part unfavorable to traffic expenses and heavy meals from January 16, 209 to April 10 of the same year (No. 209, No. 111).

C. The Plaintiff and the Intervenor, etc. dissatisfied with the determination set forth in the preceding paragraph and filed an application for reexamination with the National Labor Relations Commission. On September 23, 2009, the National Labor Relations Commission recognized workers engaged in marketing and internal control inspection (hereinafter “business marketing and internal control inspector”) from among the wage peak system workers as comparative workers, and ordered the Plaintiff to pay an amount equivalent to 1/4 of the amount equivalent to the total annual remuneration of the Intervenor, etc. as of February 10, 2009, based on the difference between traffic expenses and heavy food expenses with the comparable workers from January 16, 2009 to April 10 of the same year (hereinafter “instant decision on reexamination”).

[Ground of recognition] Unsatisfy, Gap evidence No. 1, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

1) Since a business marketing and internal control inspector has been engaged in internal control as a main business of marketing and management, it cannot be deemed that they engaged in the same or similar duties with the intervenor, etc., and the person exclusively in charge of the self-control inspection is also temporarily engaged in the same duties as the intervenor, etc. as part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part of the part

2) Since the business marketing and internal control inspector of the wage peak system has a wide range of business contents compared to the intervenor, etc., and the intensity thereof is more broad, and the Plaintiff’s payment of commuting expenses and heavy meals to regular employees is for the purpose of inducing long-term service in addition to compensating for actual expenses, it cannot be viewed as a discriminatory treatment with no reasonable grounds on the ground that the Plaintiff paid monthly commuting expenses of KRW 50,000 through KRW 100,000 to regular employees, compared to the intervenor, etc.

3) Since the change in the performance rating is aimed at inducing the continuous improvement of the ability to perform duties for a long period of time, there is a reasonable reason to not pay the change in the performance rating for the above purpose to the fixed-term workers whose contract period expires between the maturity and the maturity

(b) the relevant regulations;

Attached Form (2) shall be as specified in attached Table (2).

(c) Fact of recognition;

(i) Employment circumstances for internal control inspectors;

A) From February 2005, the Plaintiff entrusted the internal control service (self-inspection) to the service company to monitor whether the Plaintiff’s employees of the service company properly handle their duties, and tried to re-employed some of the Plaintiff’s prospective retirees as the employees of the above service company. However, according to the Financial Supervisory Service’s response that there was violation of laws and subordinate statutes, part of the desired retirees were employed as contract workers separated from the regular personnel management system and was engaged in internal control duties. From December 2005, the internal control inspector was disclosed to the public as contract workers from around December 2005.

B) Main contents of employment notice

○ Business Affairs: Internal control of a sales store (self-control, etc.)

○ Status: Contract staff (Concluding a year unit of contract)

○ Support : A person who has at least ten years' work experience in a bank and has no record of financial accidents;

C) The Intervenor, etc. entered into an employment contract with the Plaintiff, and visited 2 or 3 business points a day to the Plaintiff’s nationwide business support headquarters, and conducted internal control inspection to check whether 18 items were properly processed in accordance with the relevant regulations and guidelines.

(ii) enforcement and progress of the wage peak system;

A) As a result of the enforcement of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers on July 1, 2007 (hereinafter “ Fixed-Term Act”), the Plaintiff deemed a worker who has worked for more than two years as an employee who has entered into an employment contract without a fixed period of time. On October 17, 2007, the Plaintiff, upon an agreement with the labor union on October 17, 2007, converted the contractual workforce who has worked for more than three years as of January 1, 2008, into a inorganic contract position first, and decided to convert the contract worker into a inorganic contract position in succession according to the continuous service period. The internal control inspector excluded the worker from a inorganic contract position, on the other hand, decided to implement the wage peak system for the employees in general service who reach 55 years

B) According to the labor-management agreement established by the Plaintiff pursuant to the labor-management agreement under the preceding paragraph, remuneration for workers of the wage peak system shall be calculated as annual remuneration of 50% (the employee converted into the age of 55 or below) or 42% (56) of the total annual remuneration before the conversion of the wage peak system, and 20% of the annual remuneration of the wage peak system calculated as such is paid as changes in work performance (based on work performance and G grade) and the remaining 80% is paid as basic annual salary, fixed rate and wage, legal allowance, etc.

C) On January 3, 2008, the Plaintiff selected workers eligible for the wage peak system, conducted training on duties for them on or around February of the same year. From March 3 of the same year, the Plaintiff divided them into ① business marketing, ② business marketing and internal control inspection, ③ business card marketing, ④ overdue management and support center business.

D) The Plaintiff provided business marketing and internal control inspectors with business marketing services (including new customer management, marketing activities, such as sales of goods, business marketing, etc.), internal control services as incidental services, and conducts business training and training centering on business marketing. However, workers of the instant wage peak system have given specific business goals to the workers of the instant wage peak system, or managed and supervised business trip reports or counseling records, etc. on business marketing activities, and the said workers did not separately perform the business marketing activities.

E) A business marketing and internal control inspector worked for 8 hours a day at his/her affiliated business stores, and 2 hours of internal control, and the remaining hours of business were engaged in internal control, and 40 employees with business performance among 65 employees subject to the wage peak system in 2008, and 25 remaining employees did not have business performance. The annual average business performance per employee with business performance was 270,000 won.

F) The Plaintiff did not directly reflect the business marketing performance evaluation in the evaluation of work performance, such as setting a grade B and setting a minimum (3,701 won) to employees who included the highest performance (79,469,631 won) among 40 employees who included the business marketing and internal control inspectors with the business performance.

G) On December 16, 2008, the Plaintiff agreed with a trade union to appoint an employee as the person in exclusive charge of the primary test of the wage peak system. On January 23, 2009, the Plaintiff issued 165 of the wage peak system workers as the person in exclusive charge of the primary test of the self-point test and conducted the training. From February 2, 2009 of the same year, the Plaintiff had them perform the internal control check, such as the post-point check of the fixed-term internal control inspector who retired after the expiration of the contract period.

3) Payment of commuting expenses to the Intervenor, etc. and differential payment of food costs

The plaintiff paid 250,000 won per month to employees of the wage peak system, based on the wage peak system operation guidelines and wage and retirement allowance regulations, and paid 200,000 won per month to employees of the wage peak system from January 16, 2009 to April 10 of the same year based on the contract human resources management guidelines, while the internal control inspector such as the intervenor, etc. paid 200,000 won per month to employees of the internal control inspector such as the intervenor, etc. and 100,000 won in the middle class.

4) Failure to pay fluctuations to the Intervenor, etc.

On February 10, 2009, the Plaintiff paid to the workers of the wage peak system in the amount equivalent to 1/4 of the fluctuation performance rating calculated pursuant to the attached Table 1 of the operating guidelines for the wage peak system as follows, but the internal control inspector including the Intervenor, etc. did not pay any change in the amount. On the other hand, the Plaintiff paid a change in the amount equivalent to the amount calculated by multiplying the monthly ordinary wage by 200% or 400% per annum for other contract human resources, such as televers, support workers, etc.

본문내 포함된 표 ？ S등급 A등급 G등급 C등급 D등급 변동성과급 액수 연보수의 30% 25% 20% 15% 10%

[Ground of recognition] Unsatisfy, Gap evidence 2 through 5, 12, 13, Eul evidence 5, 21-1, the purport of the whole pleadings

D. Determination

1) Whether comparable workers exist

According to Article 8 of the Fixed-term Workers Act, an employer shall not discriminate against a fixed-term worker in comparison with a worker who has entered into an employment contract without a fixed period of time engaged in the same or similar kind of work at the relevant business or workplace on the ground that he/she is a fixed-term worker. The issue of whether a worker falls under the same or similar type of work shall be determined based on the work actually performed by the worker, not on the job rules or employment contracts, but on the basis of the contents and type of the work, the method of performing the work concerned, the conditions of work, the possibility of mutual substitution, etc., and shall be comprehensively taken into account. Even though the duties performed by a fixed-term worker are somewhat different in terms of employment procedures, the scope of the work, and difficulty of the work performed by a fixed-term worker, unless there are any special circumstances to recognize a significant difference between both workers, they shall be deemed to have engaged in the same or similar

The following circumstances are revealed by the health team, the above facts of recognition, and the evidence duly examined by this court. (i) The internal control inspector performed the same duties as the internal control inspector because the internal control inspector retired due to the expiration of the contract. (ii) Even if the internal control inspector and the internal control inspector performed the same duties at the same time only short-term, the causal relationship between the employment type and the discriminatory treatment cannot be denied if there is discriminatory treatment between the two. (iii) The plaintiff, under its name, assigned the business marketing to the business marketing and the internal control inspector as the main duties, but did not manage and supervise the business marketing, but did not take into account any management and supervision of the business marketing performance as an important factor for the evaluation. (iii) In the case of the business marketing and the internal control inspector, their actual business performance did not take into account the fact that the internal control inspector conducted the internal control inspection daily, while the result of the internal control inspection in the case of the business marketing and the internal control inspector and it appears to have been properly similar to the intervenor and the internal manager.

2) Whether the treatment is discriminatory

According to Article 2 subparag. 3 of the Fixed-term Treatment Act, the term “discriminatory treatment” means unfavorable treatment in terms of wages and other working conditions without reasonable grounds. As such, we examine whether the aforementioned treatment constitutes discriminatory treatment on the grounds that there is no reasonable difference in the food, transportation expenses, and wage, as seen earlier.

First of all, in relation to traffic cost and heavy food, the nature of compensation for actual expenses is the nature of the traffic cost and heavy food, and according to the evidence No. 22, the Plaintiff also paid the commuting cost and heavy food to other fixed-term workers, such as televersing, supporting, etc. In light of the above, even if there are welfare purposes incidental to the transportation cost and heavy food, it is difficult to directly related to the organ continuous inducement. In view of the fact that the difference between traffic cost and heavy food is difficult to have reasonable grounds, and thus, it constitutes discriminatory treatment.

Next, the following circumstances acknowledged by the foregoing facts and evidence duly examined by this court: ① the annual remuneration of a sales marketing and internal control inspector is set at 50% or 42% of the annual remuneration before the conversion of the wage peak system; and 80% of the annual remuneration determined as above (hereinafter “agreement annual remuneration”) is paid at a variable rate, and the remainder is paid at 20% of the annual remuneration; thus, the difference in the annual remuneration is not an additional payment in terms of the fixed concept, but constitutes part of the annual remuneration. ② For the foregoing reasons, the annual remuneration is merely an annual remuneration if the Intervenor is paid at Class C or D, and the annual remuneration is not reduced to 95% or 90%, and thus, it is not reasonable to have the Intervenor paid the annual remuneration to the Intervenor based on the premise that the Plaintiff’s changes in the annual remuneration are considerably different from the annual remuneration of the contract workers, such as the annual remuneration, and the Plaintiff’s changes in the annual remuneration system to be applied from the annual remuneration of the previous year.

3) Intermediate conclusion

Therefore, the part of the key and commuting expenses in the decision of the reexamination of this case is legitimate, and the altered portion is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Ori (Presiding Judge) Kim Young-sik