2010Revocation of revocation of revocation of payment of employment maintenance support payment

A Stock Company

Head of the Daejeon Regional Labor Office

August 11, 2010

September 15, 2010

1. The defendant's disposition rejecting the payment of subsidies for maintaining employment by July 2008 and August 2008 against the plaintiff on October 8, 2008 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. On January 16, 1991, the Plaintiff was a company that manufactures and sells the two sides established on July 16, 1991, and on July 2, 2008, from July 2, 2008 to September 30, 2008, the period of employment maintenance measures (suspension) was established for the Defendant, and reported a plan for employment maintenance measures (suspension) for 188 workers and B, who are the employees of the Plaintiff company (hereinafter referred to as “instant report of suspension of business”), and on July 18, 2008, three of the first workers who were subject to suspension of business were not subject to suspension of business. The Defendant rejected the Plaintiff’s application for suspension of business on July 25, 2008 on the ground that the above report of suspension of business was temporary closure of business due to industrial action, and the Plaintiff was ordered to pay the Plaintiff’s allowances for suspension of business for 30 years and 180 days on August 28, 2008, respectively.

D. The Plaintiff appealed and filed an administrative appeal with the Prime Minister on October 23, 2008, but the said administrative appeal was dismissed on October 13, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 3 through Gap evidence 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) The defendant cited that the suspension of the plaintiff's business of this case is suspension of labor union's industrial action and response to industrial action. However, the defendant's grounds cited by the defendant do not have explicit grounds, so long as the plaintiff is eligible for the payment of employment maintenance support payment under the related statutes, the defendant shall not refuse such payment on the grounds that they are not

(2) Even if the above reasons cited by the Defendant may be the grounds for refusing to grant subsidies for maintaining employment, the Plaintiff’s suspension of business is due to the reduction of production due to the long-term economic depression and the depression in sales despite the efforts to normalize management, and the Plaintiff’s failure to respond to the industrial action is not aimed at responding to the industrial action of the trade union, and thus, the Defendant erred in the fact that it constitutes the grounds for disposition.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff Company’s supply and demand and inventory status, and delayed payment of wages

(A) Since 2007, the manufacturing industry of the Plaintiff, such as the Plaintiff, has deteriorated the business environment due to the increase in the price of the body and raw materials of the construction competition, and the stock has been rapidly increased due to the entry of low-cost imported products. The stock amount continuously increased by the Plaintiff as of the end of June 2008 compared to the increase in the stock amount. In addition, since 2006, the five-day work of the Plaintiff’s production process was implemented on a five-day basis, but the burden of overtime work was increased due to the characteristics of the Plaintiff’s production process, and thus, the labor cost ratio was higher due to the increase in the cost of production, and the price of LPG, raw materials, and subsidiary materials, which are raw materials, was increased, and the approval price of the trading company was paid at the maturity of more than three to six months, and thus the amount of approval of the transaction company was liquidity with a bill at the maturity of 6 months, thereby making a difference in the management deterioration.

(B) In addition, as the Plaintiff suffered from cumulative business difficulties, the Plaintiff paid raw materials and wages to the representative director with loans and financial rights, etc., but it was more worse in 2008, and the employee’s wages were not paid in April 2008 due to the aggravation of reliance on the loans of representative director and financial rights. In 2008, the Plaintiff posted a notice within the company that stated, “It is inevitable to delay the payment of wages to be paid in May 10, 2008 due to the decline in the construction competition due to the rise in the prices of raw materials and the rise in the prices of goods and the increase in the stock of the company’s finances.”

(C) The Plaintiff, from January 208, 1st to May 2008, had a total of 80 tons per month been reduced to 680 tons per month. Nevertheless, when sales have continued due to the low-domestic products distribution, the Plaintiff had a total of 6 months stock stock increase for the same kind of company on February 4, 2008, as well as the current situation where the Plaintiff had already conducted or planned the reduction and restructuring, on the ground that the market outlook in the future continues to continue to exist for 1-month period from 5-month period to 5-month period, 5-month period from 1-month period from 2008 to 5-month period period from 5-day period from 2008, the Plaintiff planned to reduce the total number of workers on the basis of the foregoing reasons, 5-day period period from 5-day period of time to 5-day period of time to 8-day period of time to 5-day period of time to 5-day period of time to 5-day period of time.

(D) As of June 30, 2008, the Plaintiff’s product output and its trend are as follows.

A person shall be appointed.

(2) Formation of trade union and resolution on industrial action

(A) Before April 2008, there was no trade union in the Plaintiff Company. On April 25, 2008, some workers joined the Chungcheongnamnam District Trade Union under C (hereinafter “instant trade union”). At the request of the instant trade union, the Plaintiff was conducting negotiations for concluding a collective agreement over ten occasions between May 7, 2008 and June 12, 2008, but did not reach an agreement. Accordingly, the instant trade union submitted an application for mediation to the Chungcheongnamnam District Labor Relations Commission on June 13, 2008.

(B) On June 18, 2008, the instant trade union passed a resolution on industrial action with the consent of 85 union members, and posted the result on June 19, 2008, and on June 25, 2008, the Chungcheong Regional Labor Relations Commission declared that it is impossible to complete mediation because the opinions of both labor and management are too high, the instant trade union completed the report of industrial action with the content that it will conduct industrial action, such as “the use of the monthly group, refusal of remaining business, and strike,” depending on the circumstances. In addition, on June 20, 2008, the pertinent trade union received a report of assembly with the authority concerned to hold an assembly at the Plaintiff’s workplace prior to the Plaintiff’s workplace by setting the assembly period from June 23, 2008 to July 18, 2008.

(3) Circumstances at the time of commencement of the instant temporary closure

(A) On June 30, 2008: (a) around 08:20, at the entrance of the Defendant Company’s gender head, D, who is the head of the Trade Union, prevented the Plaintiff Company from operating a large tunnel for the production of sanitary instruments due to the absolute lack of the sex capacity, and thereby, became unable to make it impossible for the Plaintiff Company to take a paid leave on July 2, 2008 and July 3, 2008. On the other hand, the Trade Union posted a notice to the effect that the Plaintiff Company would be aged at the total wave on July 2, 2008 and July 3, 2008.

(B) On the same day, the Plaintiff convened a temporary labor-management council with "plan for the utilization of surplus personnel following the reduction of a production plan" as an agenda item, and the representative of workers in the above labor-management council agreed to the labor-management consultation proposal with the purport that the representative of workers shall attend the above labor-management council and suspend the whole number of employees excluding the employees essential for the management of the company from July 2, 2008 to September 30, 2008, but the company's side shall reduce its inventory by strengthening sales activities at an early stage and guarantee the temporary return to the company after the expiration of the period of suspension.

(C) On July 1, 2008, the Plaintiff submitted the instant report of business suspension to the Defendant with the consent of the workers’ representative, and made a public announcement on July 2, 2008, stating that the Plaintiff “it has reached the lowest limit of the operation of a factory by reducing the sexual injection from May 20, 2008, and that the sexual injection of the plant decreased to 0.5 times every day as it goes beyond the minimum limit to operate the factory and it is inevitable to reduce the operation of the factory for the sake of the maintenance of workers’ employment.” In addition, the Plaintiff suspended its business from July 2, 2008.

(4) The return of the report and the termination of the suspension period

(A) From July 2, 2008 to July 31, 2008, the labor union continued to hold a meeting to urge the Plaintiff company to withdraw from layoff, grant union assistance, and enter into a collective agreement before the company. Accordingly, the labor union continued to hold a meeting to urge the Plaintiff company to withdraw from layoff, make

The public official in charge of the defendant, from time to time, has entered the opinion of the plaintiff and the labor union on the part of the labor union, has conducted arbitration negotiations, and has prepared a report. The report includes the fact that the necessity of managerial layoff of the plaintiff company is affirmed, but it is doubtful that it is intended to limit the labor union.

(B) On July 25, 2008, the Defendant continued a labor dispute as above, and returned the Plaintiff’s report of suspension of business under the judgment that the Plaintiff’s report of suspension of business was a suspension of business due to an industrial action by a trade union.

(C) On August 1, 2008, when the Defendant rejected the report of business suspension, the Plaintiff notified the closure of business suspension and the return to work with the labor union as of August 3, 2008, and provided a plan for layoff. On August 7, 2008 and August 20, 2008, the Plaintiff announced the recruitment of prospective retirees on August 20, 2008.

(A) The plaintiff's order to return to work was sent back to the operation of a majority of the workers, but the union members refused to return to work and went into the strike on August 8, 2008, and the plaintiff took a lock-out measure against 74 union members on this day. On August 22, 2008, the plaintiff reported the plan to dismiss 61 workers to the defendant on September 29, 2008. However, on December 16, 2008, the above Labor Relations Commission decided that the above layoff was unfair dismissal, and the dismissal was completely reinstated.

(B) On December 24, 2008, the trade union concluded conflicts with the Plaintiff and agreed to the following contents:

The Plaintiff Company shall be reinstated to its original position as of January 1, 2009, and shall return to the original position as of September 1, 2008, and shall waive all legal disputes after the decision of the Chungcheongnamnam Regional Labor Relations Commission. For managerial reasons, the Plaintiff Company shall have 141 full-time employees from January 1, 2009 to June 30, 2009 and shall reduce and operate approximately 35 employees from 141 employees from among the total number of 176 employees from January 1, 2009 to June 30, 2009. If the management is recovered, the period of suspension of business and the number of employees may be reduced.

- The Plaintiff shall cooperate with respect to the administrative appeal on the instant disposition.

[Ground of Recognition] Facts without dispute, Gap evidence 1, Gap evidence 3 through 7, Gap evidence 13 through Gap evidence 15, Gap evidence 17 through Gap evidence 21, Eul evidence 14, Eul evidence 18 through Eul evidence 22 (including various numbers), the purport of the whole pleadings, and the purport of the whole pleadings

(d) Markets:

(1) As to whether business suspension in line with a trade union's industrial action is eligible for employment maintenance support payment (A) even though the employment adjustment was inevitable due to the occurrence of surplus labor force in the company due to the reduction of production volume, sales reduction, inventory cumulative, business scale reduction, business rationalization measures, production methods, etc., the employment maintenance support payment system aims to prevent workers from being unemployed and mitigate business management burden (see, e.g., Supreme Court Decision 2005Du7723, Sept. 29, 2005).

(B) In light of the above purpose and purport of the employment maintenance support system, if the purpose of the business suspension measure is to respond to a legitimate industrial action of a trade union, it is difficult to view that the business operator's main purpose of the business suspension report of this case is "the inevitable employment maintenance measure to maintain the employment of workers without reducing the employees already employed despite the occurrence of surplus labor force in the company," and the business operator's suspension of business to respond to the legitimate industrial action of the trade union, the business operator should pay the employment maintenance support payment even if the business operator suspended business to cope with the legitimate industrial action of the trade union. If the business operator is likely to abuse it and not faithfully comply with the negotiation with the trade union, and even if there is no explicit provision as to the requirements for the payment of employment support payment, it is reasonable to interpret that the business suspension report of this case can be denied if it is in violation of the inherent limit and purport of the system or is likely to undermine good social order.

(C) Therefore, we cannot accept the Plaintiff’s assertion that the Defendant’s “business suspension following a trade union’s industrial action” stated as the ground for the instant disposition cannot be a ground for disposition in itself because it has no legal basis.

(2) Whether the Plaintiff’s instant suspension of business constitutes a suspension of business due to an industrial action

(A) According to Article 21(1) of the former Employment Insurance Act (amended by Act No. 9792, Oct. 9, 2009); Article 19(1) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 21348, Mar. 12, 2009); Article 24 Subparag. 2 of the former Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Employment and Labor No. 12, Jul. 12, 2010) the amount of production of the month immediately preceding the month to which the first day of taking measures for employment maintenance belongs (hereinafter referred to as “base month”), the amount of production in the month immediately preceding the month to which the first day of taking measures for employment maintenance belongs, namely, the amount of production in the month immediately preceding the month to which the three-month average monthly amount of production in the immediately preceding month or the monthly average amount of production in the immediately preceding month to be reduced by at least 10/100 of the business owner’s employment maintenance plan, the business owner is obliged to provide subsidies and payment.

In this case, as seen earlier, as of June 30, 2008, the current production of the immediately preceding month, the average monthly production for the immediately preceding three months, and the average production for the immediately preceding month of the base month, at least 30% has been reduced, the Plaintiff constitutes “a business owner whose employment adjustment is inevitable.” As such, in order for the Plaintiff to reduce production due to cumulative stock accumulation, the Plaintiff planned to suspend employment, and completed consultation with the labor representative, and submitted a report on the plan for employment maintenance measures along with relevant documents to the Defendant, and did not leave workers while taking actual temporary closure measures from July 2, 2008 to August 3, 2008, the period of employment maintenance measures. Accordingly, the Plaintiff, as an inevitable business owner whose employment adjustment is inevitable, took temporary shutdown measures, and paid temporary shutdown allowances to the Plaintiff during the period of temporary closure. Therefore, the Defendant, barring any special reason to the effect that the Defendant would have a duty to pay the Plaintiff the fixed amount of the employment insurance payment.

(B) However, as seen earlier, if the business suspension of the Plaintiff is for responding to the industrial action of the instant trade union, it cannot be deemed as an employment maintenance measure. As such, as the Defendant’s assertion, the Plaintiff’s report on the business suspension of the instant case is not sufficient to recognize the business suspension due to the above reasons, and there is no other evidence to acknowledge it (as seen earlier, the Defendant cited the confirmation letter prepared by the head of the general affairs department of the Plaintiff’s company (Evidence 7-2). However, as recognized earlier, it is insufficient to recognize the fact that the Plaintiff suspended the business of this case in order for the Plaintiff to comply with the instant trade union. In addition, since the Plaintiff’s company’s desired retirement is necessary to maintain a labor contract with foreign workers, it is difficult to readily conclude that there was no need to maintain the employment contract with foreign workers as soon as it maintained the labor contract with foreign workers.

Rather, the above facts are as follows: ① the Plaintiff’s company continues to maintain inventory of its construction matches from 207 to 100, and due to the increase in prices of raw materials, distribution of low-cost products, etc. For these reasons, the monthly reduction of 80 tons was made; ② the Plaintiff’s cumulative stock reduction was made on the day off from 1st century to 50 tons; ② the Plaintiff’s industrial action was continuously conducted since February 2008, and the Plaintiff’s industrial action plan was prepared to reduce the number of employees to 6th anniversary of the need to maintain the number of employees, and there was no need to reduce the number of employees to reduce the number of employees’ total number of employees’ wages after 6th anniversary of the need to reduce the number of employees’ temporary closure, and it appears that the Plaintiff’s efforts to reduce the number of employees’ total number of employees’ remaining after 6th anniversary of the need to reduce the number of employees’ total number of temporary closure and to reduce the number of employees’ total number of employees’ wages.

(3) Sub-decisions

Therefore, the disposition of this case that the defendant refused to provide employment maintenance support payment to the plaintiff is unlawful on the ground that the plaintiff's application for suspension of business was aimed at responding to industrial action by the labor union.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Chief Judge of the Supreme Court

Judges Kim Gin-won

Judges Kim Gung-jin

1) However, the consent of the majority of the workers submitted to the defendant is given by the public official in charge of the defendant to the majority of the workers.

As the plaintiff's person in charge requests submission, he/she may arbitrarily copy the written consent of the workers submitted at the time of election of the representative of workers.

(2) The representative of workers and labor-management consultation, as seen earlier, shall be made by the secretary of the board of directors and the representative of workers who are duly elected as such.

As long as it has passed the meeting, the requirements for the application for employment maintenance support of this case shall be met, and the above written consent shall be prepared as above.

There is no difference in finding that they had been different.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.