2018Guhap20185 Revocation of disposition of additional payment for employment maintenance support

A Stock Company

Law Firm Shin (Law Firm Shin, Counsel for defendant-appellant)

Attorney Kang Dong-gu, Counsel for the plaintiff

The Commissioner of the Busan Regional Employment and Labor Office;

June 8, 2018

July 13, 2018

1. The Defendant’s disposition of site payment for the employment maintenance support payment against the Plaintiff on November 7, 2017 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is a corporation for the purpose of manufacturing, selling, exporting, etc. of Doiuss, Blouses, and other sealed products, which has its head office in Geum-gu B, Busan, and the factory 7 (hereinafter referred to as the "factory of this case") in Geum-gu, Busan and the Seoul Gangnam-gu D and 15 (15).

B. On July 25, 2017, the Plaintiff decided to temporarily suspend the instant factory from August 1, 2017 to August 31, 2017 and take measures of employment maintenance to pay paid leave workers of the instant factory due to a temporary deterioration of business. The Plaintiff paid the Defendant for the period of employment maintenance (22 days of contractual work) from August 1, 2017 to August 31, 2018, by stating that the instant factory (workplace E, location of Busan F, the period of employment maintenance) as the instant factory’s factory’s (workplace E, Busan F, the period of employment maintenance) as the instant factory’s (22 days of temporary work), 81 employees of the instant factory, basic pay, weekly leave allowances, job allowance, etc. as the instant temporary retirement allowance, 2017, and 10 years of application for employment maintenance to the Defendant for the aforementioned measures for 10 years of 2017 and 17 years of application for employment maintenance (hereinafter “report on employment maintenance”).

D. On September 1, 2017, the Defendant confirmed at the Plaintiff’s Seoul Branch that G was retired from office on September 21, 2017 due to the Plaintiff’s managerial needs on September 18, 2017 (hereinafter “the Plaintiff’s employee retired from office”) and on November 7, 2017, the Defendant issued a temporary employment maintenance support payment disposition (hereinafter “the instant disposition”) on the ground that the Plaintiff’s employment maintenance support payment was supported by the Plaintiff’s employment adjustment during the period of employment maintenance measures and one month after the employment maintenance measures, but, in the case of the Plaintiff, the Plaintiff left the insured through an employment adjustment in the corporation during the period of employment maintenance measures.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2-1 through 8, Eul evidence Nos. 1 through 5, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

1) The "insured worker" under Article 19 (1) of the Enforcement Decree of the Employment Insurance Act refers to a worker at the pertinent workplace including the insured in the pertinent measure period by taking measures for retaining employment. The Plaintiff's factory and headquarters are separated from the pertinent workplace, labor management, employment insurance, industrial accident insurance, etc., and G, etc. were subject to recommendation according to the store closure store as sales employees belonging to the pertinent headquarters. Since the instant factory was not a worker belonging to the instant factory, the Defendant determined the instant factory as its head office as its workplace together with its head office, and found G, etc. to be a worker belonging to the relevant workplace.

2) In light of the significance and intent of the employment maintenance support system, the Defendant’s act of taking personnel measures, such as G, etc. not subject to the Plaintiff’s employment maintenance measure and of taking the disposition of site wages for all 81 persons who the Plaintiff took employment maintenance measures is deviating from and abusing discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

A) Article 21(1) of the former Employment Insurance Act provides that the Minister of Employment and Labor may, under the conditions as prescribed by the Presidential Decree, provide that a business owner who has become inevitable to adjust employment due to business fluctuations, business closure or conversion following industrial structure changes, etc., may provide necessary assistance to the business owner as prescribed by the Presidential Decree if he/she takes measures for the suspension of business operations, vocational ability development training necessary for the conversion of occupation, or for the stabilization of employment of workers. The main sentence of Article 19(1) of the former Enforcement Decree of the Employment Insurance Act provides that the Minister of Employment and Labor shall, under Article 21(1) of the Employment Insurance Act, provide that the business owner who has been inevitable to adjust employment does not retire from employment by means of employment adjustment for one month after the period of the employment maintenance measures and one month after the date of the employment maintenance measures. This provision provides that the business owner who intends to obtain employment maintenance support shall, in light of the business suspension of raw materials and the lack of working conditions, reduce the amount of sales of the insured workers, reduce the amount of employment quota, or otherwise reduce the number of employees.

B) According to the relevant laws and regulations, such as Articles 8 and 5(1) of the former Employment Insurance Act, all businesses or places of business that employ workers shall be an employment insurance policyholder subject to the Employment Insurance Act, and “business that is the unit of its application” refers to a business entity of a minimum unit with independence as a management organization, which has a certain human and material organization and is continuously related to one another and continuously performed in a certain place. Therefore, if an affiliated organization of a corporation is operated independently from the corporation in connection with personnel, labor, accounting, etc., and is independent to the extent that it is a single business, the corporation and its affiliated organization shall be deemed a separate business or workplace.

2) Determination

In light of the above legal principles, it is reasonable to view that the factory of this case is a separate business place independent from the plaintiff's head office when applying the Employment Insurance Act, in light of the following circumstances, which are acknowledged as comprehensively considering the whole purport of the pleading in the descriptions of Gap evidence 2 through Gap evidence 9, Eul evidence 1, Eul evidence 4, Eul evidence 5 (including the number of branches), and Eul evidence 5 (including the number of branches).

A) The Plaintiff is a large-scale enterprise when applying employment insurance. The head office (workplace management number L), the instant factory (workplace management number E), and the Seoul Branch (workplace management number M) are subscribed to separate employment insurance establishments. The Plaintiff’s head office, the instant factory, and the Seoul Branch are in a separate place of business. Not only are the Plaintiff’s head office, the instant factory, and the Seoul Branch are in a separate place of business, but also the head office is a type of business, work clothes and similar clothes manufacturing, 351 workers, the number of the insured workers, 321 workers, the date of the formation of the insurance, July 1, 1995. The head office is the Busan Metropolitanbu Employment Center. The Seoul Branch is the Busan Metropolitanbu Employment Center. The Seoul Branch is a male and female secondary employment center, the number of the insured workers, 116 workers, the date of establishment of the insurance, and the factory establishment is divided into the Seoul Gangseo Employment Center, the number of employees, the number of the insured workers, the number of insurance workers, 81, 1203.

B) At the time of reporting the instant plan for employment maintenance measures, the Plaintiff specified the applied place of business as the instant factory (workplace management number E), excluding the head office and Seoul branch office, and covered the number of self-employed workers subject to employment maintenance measures as the entire number of insured workers of the instant factory. Workers leaving their employment for one month after the period of employment maintenance measures was generated at the Plaintiff’s head office and Seoul branch, not the instant factory, and the reason for severance was that the direct employment was converted to the agency or that the store was a recommendation office following the closure of the store.

C) The factory of this case is responsible for the manufacture of Ashruts, Blosts, and other wing products, and for the export of the above wing products at the head office and Seoul branch, and the respective employment insurance and industrial accident insurance management numbers are separated and managed in a separate workplace.

D) The Plaintiff differently applies the personnel class, schedule, evaluation criteria, and evaluation method for the management and logistics positions of the head office, etc. and the workers of the instant factory, and the attitude management is also separately implemented.

E) The collective agreement between the Plaintiff and the Nran A trade union was concluded. Article 2 (Joining and Qualification to Trade Association) of the above agreement provides that employees shall automatically be members at the same time as the company enters the company, but excludes office employees and store employees, and the above collective agreement applies only to production workers, and separate rules of employment (such as personnel, working conditions, wages, and retirement allowances) are applied to employees in office and store employees.

F) The Plaintiff prepared a profit and loss analysis report by aggregating the head office, Seoul branch, and the factory of this case by compiling separate labor cost (e.g., pay, bonus, retirement allowance, etc.), expenses (dunal welfare, electricity cost, payment fee, etc.). The Plaintiff separately reported and paid local income tax (special collection of earned income tax) for the factory and the head office of this case.

3) Sub-committee

Therefore, the Plaintiff was subject to employment maintenance measures for the entire insured workers of the instant factory, which is separate from the head office or Seoul branch, and the Plaintiff’s head office and G, which are employees of the Seoul branch, were not the employees belonging to the instant factory. Thus, the instant disposition that the Plaintiff refused employment maintenance measures against the Plaintiff on the ground that the Defendant’s departure from the insured through employment adjustment during the period of employment maintenance measures and one month thereafter constitutes a case where the Plaintiff was dismissed due to employment adjustment during and after the period of employment maintenance measures

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Chief Judge of the Supreme Court

Judges Noh Jeong-hee

Judges Cho Jae-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.