2010Nu28757. Invalidity of the public notice of reduction of working hours

1. AA trade union member;

2. B

3. C trade union;

4. D;

5. E trade union;

6. F;

7. G.

8. H;

The Minister of Labor;

Seoul Administrative Court Decision 2010Guhap23781 Decided August 13, 2010

March 18, 2011

April 1, 2011

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

The judgment of the first instance is revoked. The defendant confirms that the notice of the limit of working hours exemption publicly notified by the Ministry of Labor No. 2010-39 on May 14, 2010 is invalid.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as stated in Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since it is the same as the stated in the reasoning of the first instance judgment, except for adding the judgment on the matters asserted by the plaintiff in the trial as stated in paragraph (2).

2. Additional determination

Article 11-2 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (amended by Presidential Decree No. 2269, Jul. 12, 2010; hereinafter “Enforcement Decree of the Trade Union and Labor Relations Adjustment Act”) provides that “The Committee for Deliberation on Exemption of Work Hours under Article 24-2(1) of the Act (hereinafter “Committee”) may determine the limits on exemption of work hours pursuant to Article 24-2(2) of the Act as hours and the number of employees who can use the time and the limits, considering the total number of union members of businesses or places of business and the scope of relevant work pursuant to Article 24(4) of the Act, when determining the limits on exemption of work hours, the Plaintiff may determine the limits on exemption of work hours in accordance with Article 24(4) of the Act (hereinafter “the Act”), which is not delegated by the Trade Union and Labor Relations Adjustment Act (amended by Presidential Decree No. 1039, Jun. 4, 2010).

In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of whether the subordinate statute complies with the limits of delegation should be made by comprehensively examining the legislative purpose and content of the pertinent provision, structure of the provision, and relationship with other provisions. In a case where the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be identified, whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the bounds of its literal meaning by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see Supreme Court Decision 2009Du17797, Apr. 4, 2010).

In light of the reflect that unreasonable practices in which an employer pays wages to a person engaged exclusively in the affairs of a trade union (hereinafter referred to as "full-time employee") have not been paid any benefits from an employer in principle, such as causing the labor-management division, but where an employer determines otherwise by a collective agreement or agrees to do so, the full-time officer introduced the system of exemption from working hours so that the employer can maintain and manage the trade union within the limit of the amount of exemption from working hours. ② In this regard, Article 24(4) of the Trade Union and Labor Act newly established provides that the limit of exemption from working hours shall be determined pursuant to Article 24-2 in consideration of the number of union members, etc. for each business or workplace, and Article 24(2) of the Trade Union and Labor Act provides that the committee shall be established in the Ministry of Employment and Labor to determine the limit of exemption from working hours. According to the language and purport of the provision, it appears that the committee may autonomously consider all the elements such as the number of union members in determining the limit of exemption from working hours, and that it can not be reasonably determined in light of the legislative scope of exemption from working hours in excess.

Therefore, since Article 11-2 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act does not violate Article 75 and Article 37(2) of the Constitution, the plaintiffs' above assertion is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed because they are without merit, and the judgment of the court of first instance is just in this conclusion, and all of the plaintiffs' appeals are dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judge,

Judges Park Jae-young

Judges Kim Gin-han