2011Guhap28363 Revocation of revocation of the granting of a senior employment promotion subsidy

A Stock Company

The Head of Gangnam-gu Office of Local Employment and Labor

October 10, 2011

October 27, 2011

1. On July 6, 201, the first quarter and second quarter of 2009 against the Plaintiff, and the second quarter of 2010, and the second quarter of 201, and the second quarter of 201, and the second quarter of 2008, the second quarter of 2008, the second quarter of 2008, respectively, 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 with the objective business of manufacturing and selling automobile accessories.

B. Article 27 of the collective agreement concluded on September 16, 2005 between the Plaintiff and the Plaintiff’s trade union (hereinafter “this case’s Trade Union”) provides that “the retirement age of employees shall be the last day of the year in which they reach 58 years of age.” However, the collective agreement concluded on September 19, 2007 and December 29, 2009 (hereinafter “new collective agreement”) provides that “the retirement age of employees shall be the last day of the year in which they reach 58 years of age,” but Article 25 of the former collective agreement concluded on September 16, 2005 (hereinafter “former collective agreement”) provides that “the retirement age of employees shall be the last day of the year in which they reach 50 years of age, excluding the remaining retirement age of employees from the last day of the year in which they reach 50 years of age.” However, the Plaintiff’s retirement age shall be extended by 150 years of age in accordance with Article 25 of the former’s agreement.

D. On June 17, 201, the Plaintiff filed an application with the Defendant for payment of KRW 80,100,000 in total of the subsidies for extension of employment of the elderly in each quarter pursuant to Article 23 of the Employment Insurance Act and Article 25(1)2 of the Enforcement Decree of the Employment Insurance Act (see evidence 2-1 through 5, 2008, 1, 209, 1, 2009, 1, 2010, 1, 2010, and 2-1, 5).

E. On July 6, 201 and July 7, 201, the Defendant rendered a disposition to refuse the payment of the above elderly employment extension subsidy on the ground that the instant retirement age provision provides that the retirement age may be extended only to certain workers according to the requirements (health status, etc.) under the proviso (hereinafter “instant disposition”) (see, e.g., evidence 1 to 5, and evidence 3-1 to 3-5).

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

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff extended the existing retirement age through the instant retirement age provision for more than 56 years and more than one year. Although the said retirement age provision added the condition that “if the Plaintiff wishes, when there is no reason for disqualification for health,” the former, i.e., when the Plaintiff wishes, it cannot be deemed that the extension of retirement age is limited because it would be subject to his/her own intent. In other words, the latter, i.e., when the person was disqualified for health” is confirmed to meet the minimum requirements for health in order to provide his/her labor, it cannot be deemed that the extension of retirement age is limited.

(2) A subsidy for extension of employment of the elderly shall be paid to workers subject to the extension of their retirement age through at least the above retirement age provision.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Article 23 of the Employment Insurance Act provides that an employer who hires the aged and others, or takes other measures necessary for their employment stability, in order to promote the employment of those who have particular difficulty in finding employment under the ordinary conditions of the labor market, such as the aged, may provide necessary support, as prescribed by Presidential Decree. Article 25(1)2 of the Enforcement Decree of the Employment Insurance Act delegated by the above provision provides that an employer shall extend the retirement age for at least one year compared to the previously established age, and if the retirement age is 56 years or older, the employer shall provide the extension subsidy for the employment of the aged.

The term “retirement age system” premised on the above provision is a system that naturally terminates a labor contract with a certain age stipulated in the rules of employment, collective agreement, or labor contract, i.e., the termination of a labor contract, without specifically considering the intent or ability of an individual worker to continue the labor relationship. Therefore, when a collective agreement or rules of employment provides for retirement age, it is common that only a single age should be stated in the form of “the retirement age shall be 00 years.” However, as seen earlier, the instant retirement age provision should be extended by the end of the year in which the employee’s retirement age becomes 58 years old, but only by the end of the year in which the employee’s health becomes 59 years old, only if the employee’s retirement age becomes 58 years old, in principle, is determined at the end of the year in which the employee’s retirement age becomes 59 years old, or if the employee’s intent to reasonably extend the retirement age through the process of negotiations and the outcome of its operation is somewhat unclear.

Comprehensively taking account of the overall purport of the arguments in the statement of evidence Nos. 1, 4, and 5, the plaintiff was requested to amend the collective agreement to demand the retirement age from the plaintiff's trade union to be extended from 58 to 60 years of age on July 2007, but the plaintiff was not easily admitted, and the labor and management agreed to extend the retirement age for one year upon entering into a new collective agreement on September 19, 2007 with mutual concession. The plaintiff and the plaintiff's trade union entered into a new collective agreement including this case's retirement age provision and concluded the new collective agreement with the plaintiff and the plaintiff's trade union made an extension of the retirement age for workers from 58 to 59 years of age through the newsletter, etc. The fact that the retirement age of employees who reach 58 years of age among the plaintiff's workers was extended to 59 years of age without undergoing a special examination or evaluation.

In light of these facts, when concluding a new collective agreement containing the instant retirement age provision, the intent agreed between the Plaintiff and the Plaintiff’s trade union is to uniformly extend the retirement age set at the end of the year in which 58 years old is 59 years old in the former collective agreement despite the ambiguousness of the instant retirement age provision, and the phrase “only in the case where there is no grounds for selective extension of retirement age” is room for interpreting the selective extension of retirement age, rather than reserving the employer’s right to decide to refuse extension of retirement age for health reasons, where it is impossible or considerably difficult to provide labor by objectively considering the physical disability or disease of a worker, the employer may retire at his own will even before reaching the extended retirement age, or the employer may dismiss the worker on account of the impossibility or failure of providing labor (in this case, just because the justifiable grounds for dismissal prescribed by the Labor Standards Act are recognized, and legal procedures concerning dismissal are taken place).

Therefore, the Plaintiff’s retirement age subject to collective agreement under the instant retirement age provision has been extended from the end of the year in which he becomes 58 years of age to the end of the year in which he becomes 59 years of age, and thus constitutes a recipient of subsidies for extension of employment of the aged. Therefore, the instant disposition is unlawful on a different premise, and the Plaintiff’s assertion is without merit to further examine the remainder of the assertion.

3. Conclusion

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

The presiding judge, the chief judge and the vice judge

decoration of Judge Merit;

Judges Kim Jae-soo

A person shall be appointed.