Ajin Transport Co., Ltd and two others (Law Firm LLC et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Public Transport and Services Workers' Union (Attorney Kang-ho, Counsel for defendant-appellant)

October 13, 2016

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

The decision made by the National Labor Relations Commission on February 16, 2016 by the Central Labor Relations Commission as to the application for reexamination of unfair labor practices between Plaintiff Jinjin Transport Co., Ltd. (hereinafter “Plaintiff Co., Ltd”) and the Intervenor joining the Defendant (hereinafter “ Intervenor”) was revoked.

1. Details of the decision on retrial;

A. Status of the parties

1) The Plaintiff Company is a corporation that engages in bus transport business with approximately two hundred regular workers employed.

2) The regional branch of the Plaintiff’s Korea Automobile Trade Union (hereinafter “Plaintiff branch”) is the labor union organized for the workers of the Plaintiff company, and the Plaintiff 3 is the head of the Plaintiff branch, who is designated as the worker subject to the exemption of working hours (hereinafter “the worker subject to the exemption of working hours”).

3) An intervenor has a regional transportation branch under its jurisdiction as an industrial trade union organized for workers engaged in public, transportation, and social service business.

(b) First inquiry court;

On August 26, 2015, an intervenor filed an application with the Seoul Regional Labor Relations Commission for remedy by asserting that the payment of wages exceeding the limit of working hours to Plaintiff 3, the head of the Plaintiff’s branch, constitutes unfair labor practices of security guards under the main sentence of Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”). Accordingly, the Seoul Regional Labor Relations Commission paid wages exceeding the limit of working hours on November 2, 2015 for “working hours” under Article 2(1) subparag. 7 of the Labor Standards Act. In light of the collective agreement of the Plaintiff Company, Plaintiff 3’s contractual work hours are 2,080 hours, notwithstanding Plaintiff 3’s actual overtime work hours, the Plaintiff Company recognized Plaintiff 3’s overtime work hours and paid wages exceeding the limit of working hours under Article 24(4) of the Trade Union and Labor Relations Adjustment Act (the “Trade Union Act”).

(c) A decision on review;

On November 20, 2015, the Plaintiff Company dissatisfied with the foregoing initial inquiry court and applied for reexamination to the National Labor Relations Commission as 2015No227. However, on February 16, 2016, the National Labor Relations Commission rendered a decision dismissing the Plaintiff Company’s application for reexamination on the ground that the Plaintiff Company’s payment of wages to Plaintiff 3 as the full-time officer of a trade union prohibited under Article 24(2) of the Trade Union Act was excessive, even if it is considered as wages to those exempt from working hours, it exceeded the scope of Article 24(4) of the Trade Union Act as permitted under Article 81 subparag. 4 of the Trade Union Act (hereinafter “instant decision on reexamination”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3, purport of whole pleadings

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

A. The plaintiffs' assertion

An employer may pay wages equivalent to working hours exceeding contractual work hours to a time-off worker, and Plaintiff 3, the time-off worker, who was exempted from the total working hours, was a trade union activity beyond the limit of exemption from the working hours granted by the labor-management agreement. Thus, even if the Plaintiff Company paid a certain amount of wages to Plaintiff 3, it cannot be deemed that it paid wages exceeding the reasonable scope acceptable by social norms.

Therefore, the decision on review of this case, which was rendered on a different premise, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The Plaintiff Company is organized by two trade unions as follows:

The name included in the main sentence, the name of the Dong-gu Seoul bus trade union (Plaintiff's branch), the representative of the intervenor (Plaintiff's branch) of the Seoul bus trade union (Plaintiff's branch), the non-party 5 (Ban chief plaintiff 3), the number of the non-party 6 (branch chief non-party 7) union members of approximately 18,000 (220), approximately 75,000 (10 persons), and the date of establishment of the branch (branch) of September 2, 198 (10 persons, September 10, 196), and November 30, 2006 (6 June 5, 2015).

2) On November 24, 2006, Plaintiff 3 joined the Plaintiff Company as a bus driver, and was elected as the head of the Plaintiff’s branch on September 10, 2014.

3) The 61 bus transportation companies located in Seoul, including the Plaintiff companies, delegated the matters concerning collective bargaining to the Seoul bus transportation companies. The Seoul bus transportation companies association has concluded collective bargaining agreements and wage agreements with the Korea Automobile Workers' Union, Seoul Bus Workers' Union, which was determined as representative bargaining trade unions through the procedures for simplification of bargaining windows. From 2010 to 2015, the details regarding the payment of wages to those who are exempted from working hours and the rate of increase in wages for drivers are as follows.

Article 46(1) of the collective agreement in the year 2010 included in the main text of the Act provides that the representative of a trade union and a person in exclusive charge of business affairs of a branch shall be exempted from working hours, and the company shall be exempted from working hours with respect to consultation and negotiation between labor and management, grievance settlement, industrial safety activities, and autonomous maintenance and management affairs of an autonomous trade union for the development of sound labor-management relations. (2) The company shall pay no wage loss of those who have been exempted from working hours, and recognizes that those who have been discharged from working hours are unpaid for the activities of those who have been discharged from working hours. ① The company shall pay only two those who have been exempted from working hours (the head of the branch, the branch office, the person in exclusive charge of business affairs of the branch office), and the job allowances shall be paid in the same manner as the monthly wage. ② The same amount as the current collective agreement in 2013 and Article 8(Exemption from Working Hours) of the Act in 2013 shall be increased by 20.85% of the amount of working hours in the current collective agreement (the number of 20108).4.

The application of monthly salary by salary grade by year in 2010 (Grades 1 through 8) and the application by salary grade by year in 2010 (Grades 1 through 8) (Grades 7,817) for the average of 4.01% (classs 1 through 8), average of 3.01% (classs 317), (classs 8,134), ( KRW 120,00) for the average of 3.5% (classs 1 through 8), 2.8% (classs 1 through 8), for each salary grade in 2014 (classs 1 through 8), (classs 2.8%) for the application by salary grade in April 23, 2014 (classs 1 through 8); 2.8% (classs 1 through 8); 3.5% for each salary grade in 2012 (classs 205 to 281.28);

4) Work hours and work allowances for drivers under the collective agreement of 2015 and wage agreements concluded on June 25, 2015 are as follows:

본문내 포함된 표 ▣ 단체협약 제8조(근로시간) 근로시간은 주 40시간을 원칙으로 하되 공익운수사업의 특수사정에 의하여 주 52시간까지 연장할 수 있다. 제11조(운전직의 근무제도) 근로제도는 1일 2교대제로 하고, 주 40시간 근로를 기본으로 하며, 회사의 승무지시에 따라 격주 5시간 내외에서 연장근로, 격주 1일 휴무일(무급) 1일 휴일제로 한다. 제22조(상여금) ① 회사는 재직하고 있는 종업원(조합원)에게 연 6회(연 600%)로 구분하여 근무성적에 따라 다음과 같이 지급한다. 단, 입사일로부터 6개월간은 지급하지 않는다. 구분 지급산정기간 지급일 지급율 상여금지급액 1회 1/1 - 2월말 3/15 - 3월말 100% 매회 지급산정기간에 지급받은 월기본급 총액의 1/2을 기준하여 산정 2회 3/1 - 4월말 5/15 - 5월말 100% 3회 5/1 - 6월말 7/15 - 7월말 100% 4회 7/1 - 8월말 9/15 - 9월말 100% 5회 9/1 - 10월말 11/15 - 11월말 100% 6회 11/1 - 12월말 익년 1/15 - 1월말 100% ▣ 임금협정 제2조(임금산정시간) ① 주간 5일은 기본근로 8시간 연장근로 1시간을 포함한 9시간으로 한다. 제5조(기준시간외 근로수당 및 부가급여) ① 연장근로수당 연장근로에 대해서는 시급의 150%를 지급한다. ② 야근근로수당 오전 근무자 : 2시간, 오후 근무자 : 3시간분(시간×50%)을 가산하여 지급한다.

5) According to the Ministry of Employment and Labor’s notification (2013-31) with 230 members, the number of union members working for the Plaintiff Company may use the limit of working hours up to 4,000 hours. On September 10, 2014, the Plaintiff Company and the Plaintiff Branch agreed to designate the head of the Plaintiff’s branch office and the person in exclusive charge of the affairs of the branch office as the person eligible for the exemption from working hours and to allocate 3,00 hours to the head of the branch office and 1,00 hours to the person in exclusive charge of the affairs

6) Although Plaintiff 3 was paid an average of KRW 3,501,220 per month before Plaintiff 3 was elected as the head of Plaintiff’s branch, it was paid benefits of KRW 4,119,960 per month during the period from September 2014 to August 2015 (=49,439,514 won/12 months).

7) If Plaintiff 3 is not a person exempt from working hours, it falls under class 4 of driving duty. The salary paid by Plaintiff 3 to Plaintiff 3 and its salary class from September 2014 to August 2015, 2015 by Plaintiff 3 is as follows.

3,409,130,130,515,848,30,388,608,185,880, - 7,592,7888,2207,245,630 paid holiday allowances - 4,00,8163,841,250,928,0163,840,840,51281,324,3248,247,177,176 annual holiday allowances - 390,3841,250,9281,516,324,324,512 or 640,74,7315,747,747,439,747,947,637,947,637,947,637,947,47,637,974,637,47,47

[Reasons for Recognition] Facts without dispute, Gap's 2, 3, 7 evidence, Eul's 1 to 5 (including additional numbers), the purport of the whole pleadings

D. Determination

1) Relevant legal principles

Although the act of supporting wages to workers who are not designated as a time-off worker is itself an unfair labor practice, the act of paying wages to a time-off worker is in principle not to engage in unfair labor practice unless there are special circumstances.

However, in light of the purpose of the labor-management 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 it is based on an agreement between labor and management, such as a collective agreement, the employer’s act of paying excessive wages to a time-off worker without justifiable grounds is beyond the scope permitted under the proviso of Article 81 subparag. 4 of the Trade Union Act, and thus, it can be an unfair labor act

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

Meanwhile, in full view of the forms and contents of the relevant provisions of the Trade Union Act, the legislative purpose thereof, and characteristics distinct from the type of other unfair labor practices, the intent to provide wages to a full-time employee or to provide operational expenses to a trade union may be recognized as per se, even though it is recognized that the intent to provide wages or provide operational expenses is not exceptionally permissible under the proviso to Article 81 subparag. 4 of the Trade Union Act, and does not require the affirmative, specific intent, or motive of the control, intervention, or entry. The same applies to cases where excessive payment of wages to a full-time employee is assessed as an act of providing wages to a full-time employee or an act of providing operational expenses to a trade union (see Supreme Court Decision 2014Du1137, Apr. 28, 2016).

2) In the instant case:

Since the plaintiff 3 was designated as a time-off worker, it cannot be viewed that the payment of wages to the plaintiff 3 does not go against Article 24 (2) of the Trade Union Act.

However, in full view of the following circumstances revealed in addition to the facts acknowledged earlier and the purport of the entire arguments, it is reasonable to view that the Plaintiff Company committed unfair labor practices by security guards under the main sentence of Article 81 subparag. 4 of the Trade Union Act by paying excessive wages to Plaintiff 3, who was exempted from working hours without justifiable grounds.

A) With respect to wages that Plaintiff 3 received before being elected as the head of the Plaintiff’s branch, for the period from September 2014 to August 12, 2015, compared to monthly wage of KRW 3,501,220, the amount of wages that was paid from September 2014 to August 2015 was increased by approximately 17.7% (=(4,119,960 won - 3,501,220 won) / KRW 3,501,220 x 100 x 3,500 x 100 x 3,500 x 100 x 3.82% of March 2014, and March 7, 2015.

B) According to Article 4 of the Wage Agreement in 2015, it appears that the same basic salary is paid to the same salary class employee, and the wage agreement in 2014 is also the same. However, the basic salary and bonus (which is set based on the basic salary pursuant to Article 22(1) of the Organization Convention) that the Plaintiff Company paid to the Plaintiff Company after the Plaintiff’s election as the head of the Plaintiff’s branch office was 37,409,130 won in total less than the basic salary and the total bonus of the same salary class workers [37,409,130 won - 31,515,848 won x 100 x 100 x 100 x 23.9% [37,409, 1309, 301, 308, 818, 3080] x 180 won in total x 3081].

However, although the labor union duties, etc. performed by Plaintiff 3, a time-off worker, did not find any material to deem that there is a considerable difference in the number of duties, intensity of duties, etc. compared to the duties of drivers, or the grounds to determine the basic pay differently with the general drivers, the Plaintiff Company paid Plaintiff 3 a higher basic pay and bonus than the general workers of the same salary class without any special reason.

C) From September 2014 to August 2015, Plaintiff Company paid Plaintiff 3 KRW 11,640,00, other than basic pay, bonus, annual salary, and other annual salary, which is less than KRW 125% [Article 125% [Article 11,640,00 - KRW 5,167,287] 5,167,287 x 100 x 2] 166% [Article 166% [Article 11,640,00 - 4,368,936 x 100 x 3] , there is no special reason why the said salary was paid to Plaintiff 3].

D) On the premise that working hours that are allowed to be exempted from the working hours system are not limited to “working hours” as referred to in Article 2(1)7 of the Labor Standards Act and include working hours under a collective agreement, etc., that are set by Plaintiff 3 as obligated to provide labor, the Plaintiffs asserts that the wages paid by the said Plaintiff 3 do not exceed the reasonable scope of working hours (2,080 hours per annum) or working hours (2,470 hours per annum: 2,080 hours per week basic working hours (=40 hours per week x 52 weeks) + 260 hours per week overtime working hours (=5 hours x 52 weeks) + 130 hours per week overtime work (5 hours x 52 weeks ± 2) + 3,00 hours per year, which is the limit of working hours granted to the said Plaintiff.

First, the purport of Article 24(4) of the Trade Union Act that guarantees the duty of the time-off worker to perform the work without incurring any loss of wages is to prevent any activity of the trade union. Therefore, if the time-off worker is allowed to be exempted from the working hours, compared to the time-off worker is limited to the working hours stipulated in the Labor Standards Act, the loss of wages may be inevitable in comparison with the time-off worker is limited to the working hours stipulated in the Labor Standards Act, so it should not be limited to the working hours so that the time-off worker may be exempted from the working hours. However, even in this case, the working hours that are likely to recognize the duty of the Plaintiff company to provide labor under the collective agreement or the wage agreement are limited to the maximum of 2,47

In addition, in paying overtime allowance, etc. to Plaintiff 3, the Plaintiff Company shall pay the actual working hours, like other drivers, by converting them into the hours for wage calculation. Thus, the working hours exempted by Plaintiff 3 shall be deemed to mean the working hours before the conversion for wage calculation.

However, it is not sufficient to recognize that Plaintiff 3 engaged in activities, such as union activities, etc. for more than 2,470 hours per annum or 3,000 hours per annum granted as a time-off worker on the basis of the statements in subparagraphs 1-1 through 36 of the evidence No. 11, as well as it appears that Plaintiff 3 did not verify the details of Plaintiff 3’s use of the time-off work hours. Therefore, it is not reasonable to deem that Plaintiff 3’s wage was determined in consideration of this. Accordingly, the Plaintiffs’ assertion on this part is groundless

E. Sub-committee

As seen earlier, the Plaintiff Company’s payment of excessive wages to Plaintiff 3 constitutes unfair labor practices under the main sentence of Article 81 subparag. 4 of the Trade Union Act, which deviates from the scope permitted under the proviso of Article 81 subparag. 4 of the same Act. Accordingly, the instant decision on reexamination made based on this conclusion is lawful.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Yu Jin-jin (Presiding Judge) and Dong-dong