(영문) 울산지방법원 2015.6.18.선고 2012구합2317 판결

A. The Plaintiff retired from office on May 31, 201, when he/she was working for a new-name taxi company (hereinafter referred to as "non-party company") located in 224-7, Dong-dong Kim Young-si, Dong-si.

B. On July 4, 2011, the Plaintiff applied for the payment of job-seeking benefits to the Defendant and received KRW 5,598.720 from the Defendant for unemployment benefits equivalent to 180 days of the prescribed working days based on KRW 31,104 of the daily amount of job-seeking benefits.

C. However, on January 25, 2012, the non-party company submitted a report on the correction of the insured's contractual work hours to the Defendant from 8 hours to 4 hours. On March 8, 2012, the Defendant corrected the contractual work hours of the daily amount of unemployment benefits to 15,52 won, which served as the basis for unemployment benefits, according to the above correction report, and issued a decision of ordering return of 2,79,360 won out of the unemployment benefits paid (hereinafter "the instant disposition"). D. On March 9, 2012, the Plaintiff received the instant disposition and filed a request for examination with the Defendant on April 12, 2012, but the Defendant filed a request to the Employment Insurance Committee for reexamination on July 3, 2012, but the Plaintiff dismissed the non-party company on the same date as the Plaintiff concluded the wage agreement between the non-party company and the non-party company (hereinafter referred to as "non-party company's dismissal decision").

Article 3 (Types of Work) In principle, one day off work shall be 12-day work (Provided, That the wage system of a driver on a daily basis) and Article 4 (24 hours on a daily basis) shall be 08:00 and the daily fixed working hours shall be 24:00, and the daily fixed working hours shall be 4 hours, and the daily fixed working hours shall be 4 hours. The hours excluding the fixed working hours shall be used for free rest, rest, etc. by a worker.The wage system of a driver on a daily basis under Article 5 (Calculation of Wages and Allowances) shall be the regular pay and special raise bonus.

Article 9(Basic Wage)1. The basic pay means the basic wage calculated on a daily basis for four hours.2. When the transport income falls short of the transport income due to an unforeseen work or absence from work, the settlement shall be made.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 to 14, the purport of the whole pleadings

2. The legality of disposition.

A. The plaintiff's assertion

On the ground that the non-party company reported correction in accordance with the wage agreement of this case, the Defendant’s deeming the contractual work hours per day prior to the Plaintiff’s severance from office as four hours is illegal and unfair on the grounds as delineated below.

1) Exclusion from the application of collective agreements

The contractual work hours under the wage agreement, which the Plaintiff had applied at the time of retirement, were eight hours, and thus eight hours per day should be applied.

2) Invalidity of the instant wage agreement and relevant provisions

A) The instant wage agreement, which sets the contractual work hours at four hours, is only formally drafted to avoid the application of the Minimum Wage Act. Such labor-management agreement is null and void. Even if such agreement was reached, it is null and void because it violates the Minimum Wage Act or goes against the legislative intent of the Employment Insurance Act.

B) According to Articles 3 and 4 of the instant Wage Convention, daily work hours, 08:00 of the start-up hours, and 24:00 of the end-up hours per day. This is an estimate of the contractual work hours of 8 hours per day, and the provision that the contractual work hours shall be four hours per day is invalid in light of the foregoing provisions.

3) In light of the fact that the actual working hours of the Plaintiff were not less than 8 hours a day despite the collective agreement stipulating the fixed working hours of the agreement which takes precedence over the collective agreement as 4 hours, and that the taxi commission was 125,000 won, there was an agreement between the Nonparty Company and the labor union on the daily working hours which take precedence over the instant wage agreement.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) According to Article 45(1), (2), and (4) of the former Employment Insurance Act (amended by Act No. 11628, Jan. 23, 2013), the daily wage constituting the basis for calculating job-seeking benefits (hereinafter referred to as “daily wage”) is the average wage calculated pursuant to Article 2(1)6 of the Labor Standards Act at the time of the last severance from employment related to recognition of eligibility for benefits under Article 43(1). If the above average wage is less than the ordinary wage under Article 2(1)6 of the same Act, the ordinary wage shall be deemed the ordinary wage (Article 2(2)); if the daily daily wage calculated as above is lower than the daily daily wage of an eligible recipient multiplied by the minimum daily wage under the Minimum Wage Act applicable at the time of severance from employment (hereinafter referred to as “minimum daily wage”). In addition, under Article 46(1) and (4) of the same Act, the eligible recipient’s daily wage is lower than the eligible recipient’s daily wage by 10/100 of the minimum daily wage.

Meanwhile, according to Article 2 subparagraph 7 of the Labor Standards Act, contractual work hours mean work hours determined between an employee and an employer within the scope not exceeding 40 hours a week and 8 hours a day.

2) First of all, there is no dispute between the parties as to the facts that the daily amount of job-seeking benefits calculated based on the average wages calculated as at the time when the Plaintiff retires and the daily amount of job-seeking benefits calculated based on the daily wage is lower than the minimum daily amount calculated based on the first basic daily wage. Therefore, the Plaintiff’s job-seeking benefits should be calculated based on the lowest basic daily amount, and as seen above, the wage agreement of this case applied at the time when the Plaintiff retires set the contractual hours as four hours. Thus, barring any special circumstance, the minimum basic daily amount should be calculated based on the contractual hours as

In this case, the plaintiff should consider contractual work hours as eight hours.

Since it is argued that there are circumstances, we will look at this.

3) Judgment on the Plaintiff’s assertion

A) Whether the instant wage agreement was excluded

In the instant wage agreement entered into between the non-party company and the trade union, contractual work hours are set at four hours a day. The term of validity of the instant wage agreement is from July 1, 2010 to June 30, 201; and the Plaintiff retired on May 31, 201, which was subsequent to the entry into force of the instant deposit agreement, as seen earlier, from May 31, 201. Therefore, the Plaintiff’s assertion that the wage agreement setting contractual work hours at four hours a day does not apply to the Plaintiff is groundless.

B) Whether the instant wage agreement is null and void

(4) Under the principle of autonomy, a trade union may enter into a collective agreement that changes working conditions with an employer as well as unfavorable working hours. Barring any special circumstance, agreement between such labor-management cannot be deemed null and void, and there is no need to separately consent or authorization from its employees for such agreement. However, such agreement shall be deemed null and void if there are special circumstances that make it possible to deem that the collective agreement to change working conditions substantially deviates from the purpose of the trade union due to the lack of reasonableness. In such a case, whether a collective agreement clearly lacks rationality shall be determined based on the details of the collective agreement and the employer’s management status at the time of concluding the agreement (see Supreme Court Decision 200790, Jul. 28, 201). It is difficult to recognize that the provision of contractual work hours under the Employment Insurance Act does not change working conditions from 8 hours to 4 hours to 4 hours, or that the provision of wage under the former Minimum Wage Act does not change to the minimum wage agreement to the extent that it is difficult to determine the actual working hours of the worker.

C) Whether there exists an agreement which takes precedence over the instant wage agreement

The actual working hours of the employees of the non-party company were more than 4 hours a day and not less than 8 hours a day. The mere fact that the taxi commission was KRW 125,000, it is difficult to recognize that there was a separate agreement between the employees of the non-party company and the non-party company taking precedence over the instant collective agreement.

4) Ultimately, in calculating the Plaintiff’s job-seeking benefits, there is no basis to regard contractual work hours as eight hours a day, in addition to applying contractual work hours stipulated in the wage agreement of this case. The Plaintiff’s assertion premised on such premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.