2015Gudan3398 Litigation for cancellation of a decision to grant a subsidy to the wage peak system

1. A;

Sungnam-si

2. B

Sungnam-si

3. C

Sungnam-si

4. D;

Sungnam-si

[Defendant-Appellant] Defendant 1 and 3 others

The head of the Sung-nam District Employment and Labor Office

Category of Litigation Performers

March 2, 2016

April 6, 2016

1. On June 27, 2015, the Defendant’s decision to pay a site wage to Plaintiff A, and on July 28, 2015, the Defendant’s decision to pay wage to the rest of the Plaintiffs, respectively, is revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. The Plaintiffs are the employees of the Co., Ltd. (hereinafter “Non-Party Company”). On April 4, 2014, the Non-Party Company introduced the wage peak system that, with the consent of the workers’ representative, the number of employees aged 55 years or older was reduced to 20% by 56 detailed base wages to be reduced to 20% and maintained by 60 years of age (from April 1, 2014 to April 1).

B. On June 15, 2015, the Plaintiffs applied for the payment of the subsidies for the wage peak system in 2014 pursuant to Article 28(1)1 and (2) of the Enforcement Decree of the Employment Insurance Act to the Defendant on June 15, 2015. However, the Defendant is a worker whose retirement age has already been extended before the date of entry into force of the wage peak system of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the

The decision (hereinafter referred to as the "disposition of this case") was made.

[Ground of recognition] No dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2, and the whole purport of pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 28(1)1 and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 26690, Dec. 4, 2015; this Enforcement Decree only applies to the person who has reached the retirement age after the enforcement date of the wage peak system), although there is no phrase “a person who has reached the retirement age after the enforcement date of the wage peak system,” the instant disposition was made on the ground of a new requirement that the Defendant does not prescribe in the law (which shall be an employee whose employment has been extended after the retirement age has arrived after the enforcement of the wage peak system) beyond the possible meaning of the legal text.

(b) Relevant statutes;

◆고용보험법

Article 23 (Support for Promotion of Employment of the Aged, etc.) The Minister of Employment and Labor shall ordinarily engage in the labor market, such as the aged.

in order to promote the employment of those who have special difficulty in finding employment (hereinafter referred to as "seniors, etc.")

The employer or the employer who newly employs the aged, etc. or takes measures necessary for their employment stability; and

Necessary support, as prescribed by Presidential Decree, to workers involved in employment security measures;

section 23.

◆구 고용보험법 시행령 ( 2015 . 12 . 4 . 대통령령 제26690호로 개정되기 전의 것 )

Article 28 (Subsidies for Wage Reduction System)

(1) Pursuant to Article 23 of the Act, the Minister of Employment and Labor shall, in any of the following cases:

In this Article, a subsidy for wage peak system shall be granted to a worker: Provided, That this shall not apply to subparagraph 2.

In cases falling under subparagraph, a business owner shall also be paid a subsidy for wage peak system.

1. Where an employer extends the retirement age to 60 or more or 56 years old, with the consent of the representative of workers;

More than 60 years old and less than 55 years old, resulting in a basis for schedule, period of continuous service, or wage after the age of 5

(2) If the system is implemented to reduce wages;

(2) A subsidy for wage peak system under paragraph (1) shall be continuously employed by the relevant business owner for at least 18 months.

as a person who has been employed for the year in which the wage is reduced for the first time by applying the wage peak system.

A person shall be appointed.

C. Determination

1) Facts of recognition

In full view of the above facts, evidence No. 4 and the whole purport of the pleading, the following facts can be acknowledged.

A) On April 4, 2014, the representative director of the non-party company and the labor representative Lee B, etc. agreed to enforce the wage peak system (hereinafter referred to as “instant collective agreement”) under the agreement to enforce the wage peak system (hereinafter referred to as “instant collective agreement”).

(1) A person eligible for the wage peak system shall be a member aged 55 or more years old.

(2) A person subject to the wage peak system shall pay retirement allowances to a company in December 31 of the year immediately preceding the applicable year by the settlement of accounts.

(3) A person eligible for the wage peak system shall be paid an annual salary partially adjusted after age 55 by subtracting 20% of the annual salary in the immediately preceding year from the annual salary in the immediately preceding year.

(4) A person who re-Adjustments an annual salary under the application of the wage peak system shall pay the annual salary to him/her until his/her retirement.

(5) The enforcement date shall be April 1, 2014.

B) Accordingly, the non-party company established the operating rules of the wage peak system (it was enforced from April 1, 2014), which provides that "the application date of the wage peak system shall be for workers aged 55 or older," and Article 3 (Article 3) provides that "the application date shall apply from the year following the year in which the date of reaching 55 years of age falls, but shall apply where the date of reaching 55 years of age exceeds 55 years of age at the time of the first enforcement date of the wage peak system (main sentence and proviso of Article 4 (2)), the payment rate for calculation of wage wage wage, and the application period shall be 80% of the annual wage system (Article 8 subparagraph 1); the application period shall be from the year following the year in which the date of reaching 55 years of age to the end of the year in which the date of reaching 60 years of age falls."

(C) As of January 1, 2014, the enforcement date of the wage peak system of the non-party company, Plaintiff A (1. 1. 1. 1. *. *. *. ) constitutes 57 years of age, and Plaintiff B (1. ** *. 1. 1957), C (1. * *. *. 1. *. 1.957) and D (1. * *. 1. 1.957) respectively.

D) Meanwhile, at the Seoul Western District Office, the Seoul Western District Court decided on August 10, 2010 that the wage peak system shall be applied to all workers of 58 years of age or older, who work for the business in this case after January 1, 2009, where the Employment Insurance Act implements the wage peak system that reduces wages based on a certain annual order, regardless of whether the wage peak system is applied to those workers of 58 years of age or older, after the enforcement date of the wage peak system (hereinafter referred to as the "previous ruling").

2) In the instant case:

In full view of the following circumstances revealed by the provisions of the relevant Acts and subordinate statutes as seen earlier and the factual basis recognized earlier, the instant disposition taken by the Defendant on the ground that the Defendant is not a party eligible for subsidies for wage peak system under Article 28(1)1 of the Enforcement Decree, if the Defendant had already been extended the retirement age prior to the enforcement date of the wage peak system of the non-party company, can be deemed unlawful.

Article 28 (1) of the Enforcement Decree of the above mentioned above provides that "the Minister of Labor shall pay workers a subsidy for wage peak system in any of the following cases (hereinafter in this Article referred to as "employment wage peak system") as the requirement for the payment of the subsidy for wage peak system pursuant to Article 23 of the Act, and subparagraph 1 of the above provision provides that "the employer shall extend the retirement age to at least 60 years of age with the consent of the representative of workers or extend the retirement age to at least 56 years of age but less than 60 years of age so that the employer implements a system that reduces wages on the basis of a certain period after the age of 55 after the age of 55, the period of continuous employment, or the amount of wages at the time of continuous employment, and the requirement that the employer shall be eligible for the subsidy is not explicitly stated.

In interpreting Article 28 (1) and (1) 1 of the Enforcement Decree as alleged by the defendant, it is natural that "worker whose employment has been extended after the age of 55 reaches the age of 55 after the enforcement of the wage peak system" can be a typical subject of the above provision. However, it can be interpreted that a worker, whose employment has been extended after the age of 55 reaches the retirement age before the enforcement of the wage peak system, is not a person subject to the above provision of the Enforcement Decree because he/she is extended the retirement age again by a new collective agreement, etc. while he/she is working in the workplace with his/her retirement age even before he/she reaches the retirement age of 55.

○ The wage peak system that extends the retirement age of an employee instead of reducing the wage of an employee who has become a certain age or guarantees employment by the retirement age, the purpose of its introduction is to bear the burden of corporate personnel expenses

It can be seen that mitigation to a certain degree of unemployment for the elderly, who is less than the retirement age of the elderly, is to reduce part of wages by extending the retirement age by up to 60 years for those workers who worked for an extended retirement age exceeding 55 years at the time of the enforcement of the wage peak system, such as the plaintiffs, is obviously consistent with the above purpose and purport of the wage peak system, and thus, it is clear that such reduction would conform to the above

It is not desirable to exclude the requirements that are not explicitly stated in the application requirement in addition to the requirements that are not stated in the application requirement in a policy.

○ The provision of the Enforcement Decree stipulating the wage peak system at the time of the instant disposition by the Defendant cannot be found to have a substantial difference with the corresponding provision of the former Enforcement Decree at the time of the previous decision. The Defendant asserts that the previous decision was made under the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; hereinafter “former Enforcement Decree”), and that Article 28(1) of the Enforcement Decree of the Employment Insurance Act was amended on December 31, 2010, it is difficult to interpret that the provision should be applied to workers who were subject to the extension of retirement age from the date of the enforcement of the wage peak system at the same time as the workers who were subject to the extension of retirement age under Article 28(1) of the former Enforcement Decree, or Article 28(1) or (5) of the former Enforcement Decree of the Employment Insurance Act, which is still subject to the application of the revised Enforcement Decree, and it is difficult to find that the previous provision does not change the retirement age.

Article 28(1)4 of the Enforcement Decree of the ○○○ stipulates that a business owner who sets the retirement age at 55 or above shall be entitled to the subsidies for wage peak system, even if he re-employments a person who reaches the retirement age (excluding the case where the re-employment period is less than one year) and reduces wages from the retirement age after the retirement age. However, in the case of the Plaintiff, it seems that the Plaintiff would be paid a retirement allowance settlement as of December 31, 2013 pursuant to Article 28(4) of the instant collective agreement.

○ The Defendant asserts that, like the Plaintiffs in this case, if the Defendant applied a subsidy to workers whose retirement age has already been extended, it would result in a national financial burden. However, it would not be a reason for the Defendant to be exempted from the legal obligation to perform by the Defendant on the ground that it should be resolved through deliberation of strict requirements and adjustment of the amount of subsidy or revision of the Enforcement Decree.

3. Conclusion

this decision is delivered.

Judges Kim Kang-dae