Hyundai E&P Co., Ltd. (Law Firm Spap, Attorney Jeong-young, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant

May 18, 2010

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The decision made by the National Labor Relations Commission on October 14, 2009 by the Central Labor Relations Commission on the application case for the reexamination of unfair ex officio relief between the plaintiff and the defendant joining the National Labor Relations Commission shall be revoked.

1. Details of the decision on retrial;

A. The Plaintiff Company is a company that employs approximately 190 persons in Gangdong-gu Seoul ( Address omitted) and operates food materials supply business and computer system construction and operation business. The Defendant joining the Defendant is a worker who was transferred to Hyundai B&P, a company divided by the Plaintiff Company on April 1, 2009 (hereinafter “instant transition”) by entering the Geum River Development Industry Co., Ltd. (hereinafter “Plaintiff”) on June 16, 198 and serving as a company in charge of inventory management for the production, management, and distribution of a fashion team.

B. On June 3, 2009, the Intervenor unilaterally changed the Intervenor’s affiliation to the Seoul Regional Labor Relations Commission (Seoul District Court Decision 2009Da1189), and on July 30, 2009, the Seoul Regional Labor Relations Commission dismissed an application for remedy to the effect that “the transfer of the case was made under the Intervenor’s prior and comprehensive consent, and is not unfair.” Accordingly, the Intervenor filed an application for reexamination with the National Labor Relations Commission on October 14, 2009, and the National Labor Relations Commission is reasonable to obtain the consent of individual workers or exercise the right to refuse for a reasonable period in terms of protecting workers even if the employee’s affiliation is changed due to the company division. However, it is difficult to view that the exchange of personnel among its affiliated companies was established as a practice without the employee’s consent.” Thus, the Seoul Regional Labor Relations Commission revoked the application for remedy to the effect that “the transfer of the case constitutes an unfair measure that deviates from the scope of personnel discretion,” and accepted the application for remedy by the Central Inquiry Tribunal (hereinafter referred to as “Central 301”).

[Grounds for Recognition: Evidence No. 1-2, Evidence No. 1-2, Evidence No. 2-1, and 2-2, the purport of the whole pleadings]

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff company's assertion

(1) The assertion that the employee’s individual consent is not required

(A) As a natural legal effect of corporate division, unless an employee’s succession is specifically excluded in the division plan, etc., the labor relationship belonging to the divided business division regardless of whether the individual employee consented shall, in principle, be deemed succeeded to the newly established company due to the division. Therefore, regardless of the Intervenor’s consent, the labor relationship between the Plaintiff company and the Intervenor was naturally succeeded to the newly established company.

(B) In the case of a “full-time” which is engaged in the business of a company upon termination of an original employment contract with an affiliated company and by concluding a new employment contract with another company, a new employment contract shall take effect upon the consent of the employee in that the former employment contract is terminated and the employee’s status is transferred. However, in the case of a company division, the consent of the employee shall not be deemed to require the consent of the employee at the time of company division, on the ground that there is a clear difference in that the employment relationship is bound by the provisions of the Commercial Act without the interruption of employment relationship.

(C) In the case of a transfer of business, an enterprise organized for a certain business purpose, i.e., transferring the human and material organization as a whole while maintaining its identity. As such, the legal nature of the transfer of a business or business division specified by a juristic act constitutes a specific succession to rights and obligations. Therefore, in such a case, an employee who has worked in a business section that became subject to transfer pursuant to Article 657(1) of the Civil Act may actively express his/her intention to refuse to succeed to the employment relationship to the employer who transfers the employment relationship, and maintain the employment relationship with the existing employer. However, in the case of a division of company, the business subject to division is “general succession” that is transferred to the incorporated company and the succeeding company as a whole without the need to refrain from transferring the individual rights and obligations. Therefore, there is no room to apply Article 657(1) of the Civil Act premised on special succession as a matter of course.

(D) Specifically examining the employment relationship of workers in the case of division of a company, the division of the company may be divided into two or more categories: (i) an employee engaged in the division of the company; (ii) an employee engaged in the division of the company; (iii) an employee engaged in the division of the company; (iv) an employee engaged in the division of the company; and (v) an employee engaged in the division of the company who does not engage in the division of the company. The type of the division of the company is, in principle, a category of employees whose employment relationship is succeeded in; and (v) where there is a comprehensive defense against the refusal of succession to the labor relationship with the relevant employee, the management decision of the division of the company can not be possible; (i) an intervenor falling under the type of the division of the above (i) the right to consent under Article 657(1) of the Civil Act cannot be deemed to have been recognized.

(2) The intervenor's non-exercise of right to refuse

Even if an employer should decide whether to succeed to employment by reflecting the employee’s will at the time of division of family affairs, it is sufficient that the employer should not obtain the consent of the employee subject to employment succession and give a reasonable period to exercise the right to refuse. However, the intervenor did not exercise the right to refuse the employment succession.

(3) The Plaintiff Company has a provision under the rules of employment and personnel regulations that allows employees to move to a group affiliate. In fact, the transfer of labor relations between affiliated companies is established as a practice, such as where employees did not obtain individual consent during several corporate divisions, or at least the comprehensive and prior consent of employees exists on this part.

(4) In addition, after the division of the company on April 1, 2009, the intervenor worked for more than two months according to the division of work by Hyundai B&P Co., Ltd., and received wages from Hyundai B&P, and applied for leave. If there is a factual basis, the intervenor should be deemed to have given implied consent to the transfer of the instant case.

B. Relevant provisions

4. Collective agreement (former department store trade union)

Article 17 (Principles of Personnel Management)

4. The Company shall reflect to the maximum extent possible the opinions of the Union in consultation with the Union in the personnel movement of the union members (including the guidance members, the branch members, and the sub-branchs), the transfer of the union members to the relationship between the union and the union members.

Article 23 (Principles of Personnel Management)

6. If a company is divided, merged, or all or part of its business is sold or transferred to another person, the company shall endeavor to succeed to employment to the fullest extent possible through full consultation with the union.

【Rules of Employment

Article 9 (Kinds of Movement)

A company may order an employee to move to a new land for business purposes, such as the placement of a place of work, the placement of a post, the assignment of a position, the appointment of a foreign substitute, the dispatch of a company to a main office, and the transfer of a company to a main office, and the employee in receipt of the order shall, without delay, immediately

【Personnel Regulations

Article 33 (Order for Transfer)

In any of the following cases, a company may order an employee to change his/her place of work, post a change in his/her position, place of work, place of work, or place of work, place of overseas dispatch, change of occupation,

(5) If there is a need to issue a transfer order on the company’s business balance.

(c) Fact of recognition;

(1) On October 2008, the Plaintiff Company planned to divide the corporate business sector and demanded labor-management consultation to the Hyundai Department Store Trade Union. However, although the division of such business sector results in significant changes in the working conditions of workers engaged in the relevant business sector, the Plaintiff Company asserted that the working conditions of the relevant members should be determined by a collective agreement and demanded the Plaintiff Company to conduct collective bargaining.

(2) However, the Plaintiff Company did not comply with the request for collective bargaining by the Hyundai Department Store Trade Union on the ground that the matters pertaining to the division of the Plaintiff Company are not collective bargaining but existing working conditions.

(3) From October 2008 to March 2009, the Plaintiff Company held an explanatory meeting on the necessity and method of corporate division against employees in the border area, employees in the Yong-Nam area, and full-time union employees, and on the necessity and method of corporate division, and on the succession to employment and maintenance of working conditions for all employees of the pertinent business division, and notified the former employees of the organizational change on March 31, 2009 through a general meeting of shareholders on March 27, 2009. However, the Plaintiff Company did not issue a personnel order or notify individual employees of the change.

(4) On April 1, 2009, the Plaintiff Company: (a) divided the existing Plaintiff Company’s business division, etc. into the following contents; and (b) established Hyundai B&P Co., Ltd.

On April 1, 2009, on April 1, 2009, 192 employees of Hyundai B&P Co., Ltd., Hyundai B&P, Inc., Ltd., a food business category of 28.3 billion won in capital, IT corporation business, oil pumps business, and gold divers business, 190 workers of Geum River industry, and 142.

(5) On April 23, 2009, Hyundai B&P reported the acquisition of insured status with employment insurance. From April 24, 2009 to the employees of the division subject to division, including the Intervenor, paid monthly wages.

(6) On May 1, 2009, Hyundai B&P Co., Ltd. ordered the Intervenor to transfer the fashion team production management and distribution division to the corporate business team general business operation task division, and issued a new name.

(7) On May 14, 2009, the Intervenor submitted a written objection to the effect that the Intervenor’s affiliation was changed to Hyundai B&P, upon receiving the notification of the fact of reporting the insured status from the Seoul Maritime Labor Office, and on May 14, 2009, the Intervenor submitted to the Plaintiff Company a written objection to the effect that “the change of affiliation was improper without undergoing any such consultation procedure.”

(8) On April 27, 2009, 50 workers transferred to Hyundai B&P, as the Intervenor, submitted to the Seoul Regional Labor Relations Commission an application for remedy for unfair and unfair labor practices (Seoul District Labor Relations Commission Decision 2009Du908/Mano50). However, upon dismissal by the Seoul Regional Labor Relations Commission, 50 workers transferred to Hyundai B&P as the Intervenor, were withdrawn after filing an application for review with the National Labor Relations Commission.

(9) The Hyundai Department Store Group established a new company through the division of companies several times as follows. At the time of the division, only consultation on the conditions of division with the Hyundai Department Store Trade Union was conducted at each time, and there was no individual consent from the employees of the said division.

On January 201, 2001, the number of employees of a newly-established corporation at the time of the division of a company included in the main sentence, the number of employees of the newly-established corporation at the time of the division of a company, shall be 82, the number of hotel current department stores H&S (the name of the surviving corporation at the time of the division of a company shall be changed to H&S in the name of the surviving corporation at the time of the division of a company) on November 2002, 4508 modern department stores of 4508, June 2004, the number of hotel current hotel current hotel P&S (the name of the surviving corporation at the time of the division of a company shall be changed to H&S) on April 206, 206, Hyundai M&S (the name of the surviving corporation at the time of the division of a company shall be changed to 67 persons at the time of the division of a company at the time of the division of a company

[Grounds for Recognition: Evidence No. 3, Evidence No. 4, evidence No. 5, evidence No. 6, evidence No. 7, evidence No. 8-1, 2, evidence No. 10-1, 11, evidence No. 12, evidence No. 1-21, evidence No. 2-2, evidence No. 2-1 through 10, evidence No. 4, evidence No. 6, evidence No. 7, evidence No. 8, evidence No. 9, evidence No. 11, evidence No. 12, evidence No. 15, and the purport of the whole pleadings]

C. Determination

(1) Whether the employee’s consent to the transfer of labor relations is required at the time of corporate division

Unless there are special circumstances, such as the termination of a labor contract with an existing company or transfer of the status of an employer to another company without the consent of the employee, the transfer of the employee to another company is deemed to be engaged in the business of another company. Thus, barring special circumstances where the practice of transferring the employee to another company without the consent of the employee constitutes the content of the labor contract, the transfer of the employee is effective (see Supreme Court Decision 95Nu1972 delivered on April 26, 1996).

In light of the fact that a company established through corporate division under the Commercial Act is entirely separate from a divided company, and the status of an employer under the labor contract is changed due to corporate division, and from the standpoint of an employee, it is necessary to prevent disadvantages that an employee is entitled to receive due to the change of the subject of the right to command duties in the labor relationship even in the case of corporate division, barring special circumstances such as where the employer succeeds to employment with another company without the consent of the employee when the company is divided, the succession of employment due to corporate division shall be deemed to take effect as in the case of a previous company based on Article 657 (1) of the Civil Act and Article 30 (1) of the Labor Standards Act, unless there are special circumstances such as that the practice of the employer succeeds to employment with the other company without the consent of the employee in the case of the company division, and that such practice constitutes the content of the labor contract (whether to work in the newly incorporated company by corporate division is entrusted with the decision of each individual employee, so trade union cannot obtain the consent or authorization from the employee).

As to this case, in dividing the division of the corporation's business sector on April 1, 2009 and establishing Hyundai B&P Co., Ltd., the plaintiff company transferred its employees to Hyundai B&P company without obtaining any consent from the intervenor and its employees. Therefore, it is reasonable to deem such transfer measures to be null and void unless there are special circumstances. This part of the plaintiff company's assertion [2. A. (1) and (2] is without merit.

(2) Whether the transfer of labor relations is established as a practice in the division of the company within the Plaintiff Company, or at least prior and comprehensive consent of the workers on this part exists

As seen above, the reason for the transfer of workers' consent is to prevent disadvantages to workers due to the change of the subject of the right to command work in labor relations. If an affiliated company with various types of business and type of business forms a business group and conducts economic activities with unity in the capital, the composition of officers, working conditions, and business, and the personnel exchange among affiliated companies inside the group ordinarily and customarily takes place differently from the personnel movement within the same company or transfer, it is difficult for the employer to transfer workers employed by the company within the group to another affiliated company, even if it is a formal change of the subject of the right to command work, so if it is obtained in advance (when a worker is employed or work) with the comprehensive consent of workers, it shall be deemed that the employer can transfer workers employed by the company within the group to another affiliated company without the consent of the worker.

However, Article 22 of the Labor Standards Act and Article 7 subparagraph 1 of the Enforcement Decree of the Labor Standards Act provide that an employer shall specify working conditions such as wages, working hours, place of employment, and work to be employed at the time of entering into a labor contract. In light of the purport of the above provision that promotes the protection of workers by taking into account the subordinate nature of a specific company, if an employer obtains the comprehensive prior consent of workers with regard to the transfer of property within a company group, the employer shall specify the company to be entered into, and obtain the consent of the employee by specifying, basic working conditions such as working conditions (for multiple enterprises, good for them). (See Supreme Court Decision 92Nu8200 delivered on January 26, 1993).

With respect to the instant case, it is insufficient to recognize that the Hyundai Group, to which the Plaintiff Company belongs, took measures to transfer workers in the relevant business sector by dividing the company several times from 2001 to 2008, and did not obtain individual consent from the labor union, and that the Plaintiff Company has a provision that allows the Plaintiff Company to transfer workers to its affiliate employees, such as the rules of employment and personnel regulations, etc. However, it is insufficient to recognize that the Plaintiff Company obtained the comprehensive prior consent of the Intervenor, or that the transfer between affiliates without the Plaintiff’s consent is established as a practice of personnel exchange. This part of the Plaintiff Company’s assertion (2. A.3) is without merit.

(3) Whether the intervenor's implied consent exists

In light of the following circumstances revealed by the above facts, the plaintiff company held an explanatory meeting, etc. in relation to the division of the company of this case and announced the change of organization against the former worker on March 31, 2009, but did not individually notify the former worker of the fact of transfer. For this reason, the intervenor and the former worker were paid the wage statement in the name of Hyundai B&P PP PP PP, around April 2009 and notified the Ministry of Labor of the fact of the employment insurance insured status report at the beginning of May of the same year, the plaintiff company officially confirmed that his position was changed to the non-party Hyundai B&P, and the intervenor submitted a written objection to the plaintiff company on May 14, 2009, and the plaintiff company did not explicitly consent to the change of the former worker's status (the plaintiff company's decision on June 3, 2009 was not made to the Seoul Regional Labor Relations Commission on the ground that the intervenor did not clearly consent to the change of the part of the plaintiff company's work of this case for 2 months before the request was made.

(4) Sub-determination

Therefore, the previous ruling of this case is unfair, and the new ruling of this case made on the same premise is legitimate.

3. Conclusion

Therefore, the claim of this case by the plaintiff company is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jung-hwa (Presiding Judge)