2014Do8831 Violation of the Labor Union and Labor Relations Adjustment Act

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

Defendants

Law Firm Z.

Attorney E, AC, and AB (for the Defendants),

Attorney AD (For the Defendants)

Jeonju District Court Decision 2013No1369 Decided June 20, 2014

April 29, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. According to Article 24(2) and (4) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an employee who is engaged exclusively in the affairs of a trade union (hereinafter “labor union full-time employee”) shall not receive any benefits from the employer during the previous period, but a worker designated as the object of the exemption from working hours (hereinafter “workers exempted from working hours”) may, without any loss of wages, engage in the maintenance and management of a trade union for a certain business, such as consultation and negotiation with the employer, grievance settlement, and industrial safety, and for the development of sound labor-management relations, to the extent that such exemption limit does not exceed the notified limit of working hours.

In order to prevent a trade union from dependent economicly on an employer and to secure the independence of a trade union, the above provision, instead of prohibiting the act of subsidizing wages for full-time union workers, has a legislative purpose to continue to guarantee the trade union activities within a certain extent of time exemption by taking into account the net function of the employer’s labor management system (see, e.g., Constitutional Court Order 2010Hun-Ma606, May 29, 2014).

In addition, Article 81 of the Trade Union Act which regulates the employer's unfair labor practices prohibits "the act of controlling or participating in the organization or operation of a trade union by an employee" in the main sentence of subparagraph 4 and "the act of providing wages to the full-time employee or assisting the operation expenses of a trade union" from unfair labor practices, but "the act of allowing the full-time employee to engage in the activities of maintaining and managing the trade union during working hours" in the proviso does not constitute unfair labor practices.

Therefore, the act of subsidizing wages to a worker who is not designated as a time-off worker merely because he/she is not a time-off worker (see, e.g., Supreme Court Decision 2012Du12457, Jan. 28, 2016); however, the act of paying wages to a time-off worker is a special act.

In principle, it can be said that it does not engage in unfair labor practice unless there are circumstances.

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, 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 Act, and thus, an unfair labor act corresponding to the act of providing wages to a time-off worker or

In this context, whether the payment of wages to a time-off worker is excessive and constitutes unfair labor practices should be determined by examining whether the workplace is beyond the reasonable scope acceptable by social norms compared with the standard for payment of wages or wages that can be received based on the ordinary working hours, working conditions, etc. of the same or similar class, class, or salary grade of ordinary workers engaged in the same or similar kind of work at the workplace concerned if they were employed as general workers without being designated as a time-off worker. Moreover, the payment of wages to a time-off worker is not paid as compensation for performing activities subject to time-off, but it is paid as compensation corresponding to the working hours for which the duty to provide labor was exempted, so it is not necessary to determine whether there is excessive payment

Meanwhile, in full view of the forms and contents of the relevant provisions of the Trade Union Act, their legislative purpose, and characteristics distinct from other types of unfair labor practices, the intent or intent of an unfair labor practice in the act of providing wages to a full-time employee or assisting the operation expenses of a trade union can be recognized by itself as an act of providing benefits or assisting the operation expenses of a trade union, even though it is aware that such act does not constitute exceptionally permissible under the proviso of Article 81 subparag. 4 of the Trade Union Act. In so doing, it is not necessary to recognize that the act of providing benefits or assisting the operation expenses of a trade union is not an affirmative intent, motive, or intent to interfere with the autonomy of a trade union or to actively control and intervene in the organization and operation of a trade union. This does not apply to a case where excessive payment of benefits to a

2. On the grounds stated in its reasoning, the lower court found the Defendants guilty of all the charges of this case on the ground that the payment of wages exceeding the level of wages that an employer would have received if the employer had worked as a general worker would have worked normally constitutes unfair labor practices prohibited under the main sentence of Article 81 subparag. 4 of the Trade Union Act, and that in this case where the employee was designated as a worker to be exempted from working hours under a collective agreement, the amount of wages that the Defendants paid to each employee to be exempted from working hours

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the intent of unfair labor practice and the recognition of illegality, nor by misapprehending the legal doctrine on the wrongful act, or by failing to

3. Accordingly, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin-chul

Chief Justice Park Poe-dae

Justices Park Young-young

Justices Kim Jong-il