Whether the act of paying wages to a time-off worker constitutes unfair labor practices (negative in principle), and whether the payment of wages ought to correspond to the hours during which the duty to provide labor is exempted (affirmative) / Whether the employer’s act of paying excessive wages to a time-off worker without justifiable grounds may constitute unfair labor practices (affirmative); and the standard for determining whether the payment of wages to a time-off worker constitutes excessive labor practices

In principle, the act of supporting wages to workers who are not designated as a time-off worker is merely merely a time-off worker, and the act of providing wages to workers who do not have been designated as a time-off worker itself, but the act of paying wages to the time-off worker does not constitute an unfair labor practice

However, in light of the purpose of the labor-management system that allows a time-off worker to engage in trade union activities without economic losses after being exempted from working hours for which the time-off worker is obligated to provide labor, wages paid to a time-off worker shall correspond to the working hours for which the duty to provide labor is exempted. Therefore, even if a labor-management agreement is reached, the employer’s act of paying excessive wages to a time-off worker without justifiable grounds exceeds the scope permitted under the proviso of Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act, and thus, the employer’s act of paying wages to a time-off

In this context, whether payment of wages to a time-off worker is excessive and thus constitutes unfair labor practices should be determined by examining the circumstances such as whether the level of wages or the criteria for payment of wages received by a time-off worker to a time-off worker is excessive to the extent that it exceeds the reasonable scope acceptable by social norms in light of the ordinary working hours and working conditions of the same or similar class, class, or salary grade that the worker is engaged in the same or similar kind of work at the workplace concerned, if

Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act

Supreme Court Decision 2014Du11137 Decided April 28, 2016 (Gong2016Sang, 707)

Ajin Transport Co., Ltd and two others (Law Firm Barun, Attorneys Kim Hong-do et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Public Transport and Social Services Trade Union

Seoul High Court Decision 2017Nu32069 decided December 20, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The act of subsidizing wages to a worker who is not merely a full-time worker but does not have been designated as a time-off worker itself becomes an unfair labor practice, but the act of paying wages to a time-off worker is, in principle, not an unfair labor practice, unless there are special circumstances.

However, in light of the purpose of the labor union operation exemption system that allows a time-off worker to engage in labor union activities without economic losses after being exempted from working hours for which the time-off worker is obligated to provide labor, wages paid to a time-off worker shall correspond to the working hours for which the duty to provide labor is exempted. Therefore, even if a labor-management agreement is reached between labor and management, an employer’s act of paying excessive wages to a time-off worker without justifiable grounds exceeds the scope permitted under the proviso of Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), and thus, an unfair labor act falling under the provision of wages to a time

In this context, whether payment of wages to a time-off worker is excessive and constitutes unfair labor practices should be determined by examining the circumstances such as whether the level of wages or the standard for payment of wages received by a time-off worker to a time-off worker is excessive to the extent that it exceeds the reasonable scope acceptable under generally accepted social norms (see Supreme Court Decision 2014Du1137, Apr. 28, 2016).

2. According to the reasoning of the judgment below, the court below found facts as stated in its reasoning based on the adopted evidence. Then, considering the following: (i) although the sum of Plaintiff 3’s salary and bonus exceeds the average salary of Plaintiff 3 in driving class 4 (hereinafter “Plaintiff”) and bonus, there are workers who received more benefits than Plaintiff 3; (ii) there may be considerable difference in the same conditions depending on overtime work and holiday work; and (ii) if the working hours are limited to the prescribed working hours under the Labor Standards Act, there may be wage loss compared to those of ordinary workers, the court below did not limit it to the prescribed working hours; (iii) it is difficult to notify the company of the details of the exemption from working hours and the contents of the work, etc.; and (iv) it is difficult to deem the Plaintiff company to have a duty to confirm it, it cannot be deemed that the Plaintiff company paid the Plaintiff’s salary to the extent that it exceeds the reasonable scope acceptable under the social norms.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Examining the reasoning of the lower judgment and the following circumstances revealed through the evidence duly admitted in light of the legal doctrine as seen earlier, it is reasonable to view that the Plaintiff Company paid the Plaintiff 3 an excessive amount of wages set without reasonable grounds.

① The hours of Plaintiff 3’s exemption from the Plaintiff Company are 3,00 hours per year, and 920 hours per year more than the prescribed hours of 2,080 hours per year under Article 2(1)7 of the Labor Standards Act.

The purpose of Article 24(4) of the Trade Union Act, which guarantees the exemption from working hours without loss of wages, is to ensure that the activities of trade unions are not reduced ultimately, and where the exemption from working hours is strictly limited to the prescribed working hours, loss of wages may be inevitable compared to the case of ordinary workers. Thus, the exempted working hours are not always limited to the prescribed working hours, but in such a case, it should be limited to the degree that reflects the working hours ordinarily provided by ordinary workers. Since the working hours provided by other workers of the Plaintiff company remain 2,800 hours per year, it is difficult to view that the working hours of 3,00 hours per year exempted from the exemption of Plaintiff 3 are ordinarily provided by ordinary workers of the same or similar class and salary grade with the above Plaintiff 3.

② From September 2014 to August 2015, the Plaintiff Company’s appointment as the head of the Agjin Traffic Branch of the Plaintiff’s Korea Automobile Workers’ Union, which was designated as the time-off for working hours, to KRW 49,584,369 (the salary of KRW 37,404,369 + the bonus of KRW 12,180,00). On the other hand, during the same period, the average wage and bonus of KRW 45,845,31 (the average wage and bonus of KRW 36,143,151 + the average bonus of KRW 9,702,160) paid by the Plaintiff Company is merely 45,845,311 (the average wage of KRW 36,143,151 + the average bonus of KRW 9,702,160) and the wage paid by the Plaintiff 3 is more exempt than the ordinary wage of the same salary class.

③ Furthermore, even though the amount of bonus paid to the Plaintiff Company’s 4-class workers for one year is equal to approximately KRW 9,700,000, which is the amount equivalent to 600% of the basic salary, Plaintiff 3 was paid a bonus of KRW 12,180,000, unlike this, it cannot be deemed that such bonus was paid according to the ordinary payment criteria.

B. Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that Plaintiff 3’s payment of wages to Plaintiff 3 did not constitute unfair labor practices, on the ground that the payment of wages from Plaintiff 3 did not exceed a reasonable scope. In so determining, it erred by misapprehending the legal doctrine on unfair labor practices, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)