Plaintiff 1 and 47 others (Attorney Young-young et al., Counsel for the plaintiff-appellant)

The head of the Mapo Regional Labor Office

November 23, 2005

Gwangju District Court Decision 2003Guhap338 Delivered on September 9, 2004

1. Revocation of a judgment of the first instance;

2. The Defendant’s correction of each average wage as of February 13, 2003 and the payment of the difference in job-seeking benefits against each of the Plaintiffs shall be revoked.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The same shall apply to the order.

1. Details of the disposition;

A. On September 17, 2002, when working in a Hebatool hospital, the plaintiffs left their jobs on the closure of the above hospital, and received job-seeking benefits by obtaining employment insurance benefits from the defendant. On January 8, 2003, the plaintiffs claimed on the purport that the plaintiffs' average wage should be determined by re-determination of the plaintiffs' average wage to the defendant and payment of the difference in job-seeking benefits that the plaintiffs have not received.

B. Accordingly, the defendant, on July 10, 201, which did not reflect the above amount of job-seeking benefits, determined the average wage by reflecting the increase in the amount of the job-seeking benefits in the wage agreement dated July 10, 2001 (basic pay 30,000 won, 3.5% fixed rate, risk allowances 20,000 won, and 20,000 won retroactively applied from March 2002), but included the period of industrial action, each of the plaintiffs except the plaintiff 26's average wages is lower than the amount of each ordinary wage, and each of the above ordinary wages falls short of the minimum basic daily amount stipulated in Article 35 of the Employment Insurance Act (hereinafter referred to as "the calculation details of this case"). As stated in the daily amount of job-seeking benefits calculation statement on February 13, 2003, there is no difference between the average wage and the fixed amount of the job-seeking benefits for the plaintiffs except the plaintiff 26, the additional average wage payment of the job-seeking benefits should be notified of the difference.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 3-1 through 48, Eul evidence No. 4, the purpose of all pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiffs' assertion

(A) The plaintiffs' industrial action cannot be deemed an illegal industrial action, and even if it was an illegal industrial action, it includes an illegal industrial action period that is excluded from the calculation of average wages as stipulated in Article 2(1) of the Enforcement Decree of the Labor Standards Act. Thus, the plaintiffs' industrial action period should be determined based on the wages paid during the three months immediately before the commencement of the industrial action except for the average wage calculation period, but the average wage should be determined based on the wages paid during the three months immediately before the commencement of the industrial action, it is unlawful to calculate

(B) Even if it is not so, since the calculation of average wages, including the plaintiffs' period of industrial action, resulted in a manifestly unfair result, and thus, Article 4 of the Enforcement Decree of the Labor Standards Act provides that "ordinary living wages," i.e., the above industrial action should be calculated based on the wages for the three months immediately preceding the above industrial action, but the disposition of this case that calculated the average wages including the above industrial action period, and accordingly calculated the daily amount of job-seeking benefits is unlawful

(2) The defendant's assertion

(A) Since the "industrial action" under Article 2 (1) 6 of the Enforcement Decree of the Labor Standards Act is limited to the "political and lawful industrial action" under the Trade Union and Labor Relations Adjustment Act, the plaintiffs' assertion in this part is without merit.

(B) Since the Plaintiffs’ average wage can be recognized as the average wage pursuant to Article 19(2) of the Labor Standards Act, it does not constitute “where the average wage cannot be calculated” under Article 4 of the Enforcement Decree of the Labor Standards Act, as alleged by the Plaintiffs.

(b) Related statutes;

1. Attached Table 1. It shall be as listed in relevant Acts and subordinate statutes.

(c) Fact of recognition;

(1) From April 17, 2002, the labor union to which the plaintiffs were affiliated and the above hospital started collective bargaining for wage increase and conclusion of collective agreements. On May 10, 2002, when the above hospital notified the restructuring plan to overcome business difficulties in the above hospital’s 4 collective bargaining on May 10, 2002, the collective bargaining between the labor and the management’s position was in place.

(2) On May 24, 2002, the plaintiffs participated in the industrial action in the form of partial or full strike from May 30, 2002 to September 17, 2002, without undergoing the procedure of mediation stipulated in Article 45(2) of the Labor Union and Labor Relations Adjustment Act and the procedure of reporting the industrial action stipulated in Article 17 of the Enforcement Decree of the same Act. From May 27, 2002 to May 29, 2002, the plaintiffs participated in the industrial action in the form of collective monthly leave from May 30 to September 27, 2002 (hereinafter the industrial action of this case from May 27, 2002 to September 17, 2002, which is the closure date of the above hospital (hereinafter the industrial action of this case).

(3) The above hospital did not pay wages to the plaintiffs on the ground that the plaintiffs did not provide labor from May 30, 2002 to September 17, 2002 during the industrial action period of this case.

(4) Each average wage calculated pursuant to Article 19(1) of the Labor Standards Act as of September 17, 2002, which is the date of the plaintiffs' final severance from employment, is the same as the average wage column in attached Table 2, among the calculation details of daily amount of job-seeking benefits (this is recognized by the allowances, etc. corresponding to the period of the industrial action in this case that was paid before the industrial action in this case). Each ordinary wage during that period is the same as the ordinary wage column in attached Table 2, and each of the above average wages does not exceed 1/2 of the above ordinary wages.

(5) Meanwhile, as of the time when the plaintiffs received normal wages as of the time prior to the industrial action period, each average wage reaches the double degree of the above ordinary wages.

(6) As the above ordinary wages of the plaintiffs other than plaintiffs 26 fall short of the minimum daily wage stipulated in Article 35 of the Employment Insurance Act, with regard to plaintiffs 26 the above ordinary wage as the daily wage, and with regard to the remaining plaintiffs, the above minimum daily daily amount of job-seeking benefits as the daily wage under Article 36 of the Employment Insurance Act, the daily amount of job-seeking benefits for the plaintiffs was calculated as stated in each daily amount of job-seeking benefits calculation column of attached Table 2.

[Ground for Recognition] Unsatisfy, Gap evidence 1-1 through 48, Gap evidence 4, 5, 7, 10, 14, 15, 19, 20, 21, Gap evidence 6, 8, 9, 13-1 through 12, Gap evidence 16, 17, 18-1 through 3, Eul evidence 1-2, Eul evidence 18-1 through 48, Eul evidence 6-1 through 48, Eul evidence 8-2, and Eul evidence 8 through 23, respectively, the purport of the whole pleadings

D. Determination

(1) The first argument by the plaintiffs (whether the industrial action in this case is legitimate and whether the industrial action in this case is included in the period of industrial action under Article 2 (1) 6 of the Enforcement Decree of the Labor Standards Act)

Article 2(1) of the Enforcement Decree of the Labor Standards Act, which provides for the exception to the calculation of average wages under the main sentence of Article 19(1) of the Labor Standards Act, which provides for a period of time deducted from the average wage calculation period, if such period of time and time are not deducted, the average wages actually paid to the worker are less than that of the worker (see Supreme Court Decision 2001Da12669, Jul. 25, 2003). Thus, Article 2(1) of the Enforcement Decree of the Labor Standards Act provides that an industrial action shall be limited to the period of industrial action under Article 2 subparag. 6 of the Labor Relations Adjustment Act, the period of probationary use under Article 45 of the Labor Standards Act, the period of time due to reasons attributable to the employer under Article 72 of the same Act, the period of maternity leave under Article 81 of the same Act, the period of industrial action shall not be limited to the period of industrial action to be justified, and the period of industrial action shall not be limited to the legitimate one of the workers' rights and interests of the industrial action.

Therefore, this case's industrial action does not constitute an industrial action that is excluded from the average wage calculation under Article 2 (1) 6 of the Enforcement Decree of the Labor Standards Act due to an illegal industrial action. Thus, the plaintiffs' assertion that the industrial action is legitimate and the illegal industrial action is included in the period of industrial action under Article 2 (1) 6 of the Enforcement Decree of the Labor Standards Act.

(2) Determination as to whether the second assertion by the Plaintiffs (whether the “average wage” under Article 4 of the Enforcement Decree of the Labor Standards Act falls under the case where the average wage cannot be calculated”

(A) According to the provisions of the Employment Insurance Act, the daily wage (the daily wage which is the basis for the calculation of job-seeking benefits) shall be the "average wage", but if the above average wage is less than the "ordinary wage", it shall be the "ordinary wage". If it is difficult to calculate the daily wage, it shall be the "base wage". If the above-mentioned basic daily wage is less than the minimum daily wage (the amount calculated by multiplying the contractual work hours per day immediately preceding severance from employment by the minimum wage per hour under the Minimum Wage Act applied at the time of severance from employment), it shall be the "minimum basic daily wage."

Meanwhile, Article 4 of the Enforcement Decree of the Labor Standards Act provides that where it is impossible to calculate the average wage pursuant to Article 19 of the Labor Standards Act and Article 2 (1) of the Enforcement Decree of the Labor Standards Act, the average wage shall be determined by the Minister of Labor. This does not limit only to cases where it is technically impossible to calculate the average wage, but also includes cases where it is considerably inappropriate to calculate the average wage pursuant to the provisions related to the Labor Standards Act. Thus, the "total amount of wages paid to workers for the three months immediately before the date on which the cause occurred", which is the basis for the average wage, cannot be used as the basis for the calculation of the average wage in cases where the "total amount of wages paid to workers for the three months immediately before the date on which the cause occurred," which is a basis for the calculation of the average wage, is considerably less or more than the ordinary wage due to special reasons. Since the Minister of Labor has not yet provided the standard or method thereof, the average wage shall be calculated in a way that reflects the ordinary wage of workers in light of the basic principle of the average wage and the retirement system (see the above Supreme Court Decision 200Da261.

(B) In the calculation of average wages that are the basis for calculation of health expenses and job-seeking benefits under the Employment Insurance Act, as well as Article 4 of the Enforcement Decree of the Labor Standards Act shall be calculated by reflecting the ordinary wage of workers in light of the purport of the average wage, etc. As seen above, each of the above average wages calculated including the period of the industrial action in this case is not less than half of the ordinary wage, and each of the above ordinary wages is not less than half of the average wage as of the time when the plaintiffs received the normal wage as of the transfer of the industrial action in this case (in case where the total amount of wages paid to workers for 3 months prior to the date of the industrial action in this case is considerably smaller than the ordinary wage in this case). The calculation method of the average wage in this case is not appropriate in accordance with Article 20 of the Labor Standards Act (in case where the average wage in this case is calculated under Article 4 of the Enforcement Decree of the Labor Standards Act and Article 2(1) of the Enforcement Decree of the Labor Standards Act). The calculation method of the average wage in this case is also unlawful.

(C) Furthermore, in the event that it is impracticable to calculate the amount of job-seeking benefits by using the “standard wage” as the daily wage, as seen above, if it is difficult to calculate the amount of job-seeking benefits based on the average wage or ordinary wage as seen above, the “standard wage” shall be deemed the daily wage. However, according to the Enforcement Decree of the Employment Insurance Act and the Employment Insurance Act, the application of the standard wage is difficult to calculate and confirm the amount of wages due to the closure, bankruptcy, etc. of a business or workplace, or it is difficult to ascertain the location of the business due to the absence or uncertainty, ③ it is difficult to ascertain the location of the business due to the relocation, etc. of a business or workplace, and (4) it is limited to the case where a business owner, with four or less regular workers, reports it as prescribed by the Ordinance of the Ministry of Labor to receive the standard wage for the pertinent insurance year after hearing the opinions of the workers.

3. Conclusion

Therefore, the plaintiffs' claims of this case seeking revocation on the grounds that all of the dispositions of this case against the plaintiffs are illegal, shall be accepted respectively on the grounds that they are reasonable, and since the judgment of the first instance is unfair, the judgment of the court of first instance which has different conclusions shall be accepted in entirety, and the judgment of the court of first instance shall be revoked, and each disposition of this case against the plaintiffs shall be revoked, and

Judge Oh Jeong-hee (Presiding Judge)