2010 Ghana22081 Wages

김▩▩

Jinwon-si, Jinwon-si 00 00 or less apartments

Attorney Park Jae-hoon, Counsel for the plaintiff-appellant

△ corporation

Incheon Dong-gu00 Dong*-*

MaximumO, Kim 00, Lee 00

Law Firm Namsan, Counsel for the plaintiff-appellant

Attorney Park So-young

March 22, 2011

May 17, 2011

1. All the claims of the Plaintiff (Appointed Party) are dismissed. 2. The costs of lawsuit are assessed against the Plaintiff (Appointed Party).

The defendant shall pay 2,39,940 won to the Selection Kim, 1,447,79,540 won to the Selection Kim, 5,687,540 won to the Selection Kim, 2,399,940 won to the Selection Kim, 6,747.125 won to the Selection Ho-ho, 3,612,00 won to the Selection Ho-ho, 4,298,160 won to the Selection-ho, 4,298,160 won to the Selection-ho, 5,270.130 won to the Selection-ho, 7,02,650 won to the Selection Kim, 4,934,00 won to the Selection-ho, and 2,5% to the next day from February 1, 2010 to the day on which a copy of the complaint is served, 5% to the day on which each of the following day is paid.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged when the whole purport of the pleading is taken into account in the statement of evidence No. 1. 6. 1, 12. 14, Eul evidence No. 1-2 through No. 2-3, 13. 3, 4, 5, and 6.

A. At the time of the enforcement of the former Labor Standards Act (Act No. 6974, Sept. 15, 2003; hereinafter referred to as the "former Labor Standards Act"), the Defendant is a business owner who employs approximately 4,600 full-time workers and mainly produces industrial machinery, and the Plaintiff (appointed parties) and the designated parties (appointed parties) are referred to as "Plaintiffs", and the “Plaintiffs” are members of the Korea Metal Trade Union, which are affiliated organizations of the Korea Metal Trade Union (hereinafter referred to as “the branch of this case”).

B. On February 28, 2006, the Defendant and the Korean Metal Trade Union concluded a collective agreement in 2005, which applies to the instant Branch (hereinafter “instant collective agreement”). On March 31, 2006, the term of validity of the instant collective agreement, has not yet been concluded until March 31, 2006. Of the Plaintiffs, Kim, Kim, Kim, Kim, Kim, Kim Jong, this UA, and Cho Jong were admitted to the instant Branch at the time of the conclusion of the instant collective agreement, but the rest of the Plaintiffs, the Plaintiffs, were admitted to the instant Branch on March 31, 2009.

라.피고는2009.10.1.성을제외한원고들을상대로별지'연차수당산정내역'| 중 '연(월차 휴가 일수 / 피고 주장'란 기재 각 휴가 일수 중 위 원고들이 사용하지 아니한 휴가 일수(별지 '연차수당 산정내역' 중 '사용촉진된 휴가 일수'란 기재와 같다를 알려주고, 위 원고들이 그 사용시기를 정하여 사용자인 피고에게 통보하도록 서면으로 촉구하였고, 위 원고들이 그 촉구를 받은 때로부터 10일이 지나도록 휴가 사용시기를 지정하지 아니하자. 2009. 10. 21. 다시 위 원고들에게 사용하지 아니한 휴가의 사용 시기를 지정하여 서면으로 통보하였다.

E. Nevertheless, although the plaintiffs worked to provide labor on each leave notified by the defendant, the defendant refused to receive the plaintiffs' labor, denied the plaintiffs' office access on that leave day, and block access to the computer system.

F. Meanwhile, at the time of 2009, 150% of the Plaintiffs’ ordinary wages are as indicated in the column of “150% of the ordinary wages” among the details of calculation of annual allowances in attached Form 1.

2. Summary of the parties' arguments;

A. Summary of the plaintiff's assertion

Article 2 of the Addenda to the collective agreement of this case provides that "the validity of this Convention shall continue until the renewal agreement is concluded even after the expiration of the term of validity of the collective agreement of this case." The collective agreement of this case shall be effective until August 1, 2010 after the defendant notified the termination of the collective agreement of this case, and the number of days of annual and monthly leave in 2009 granted to the plaintiffs pursuant to Article 49 of the collective agreement of this case shall be as stated in "(monthly) and "the number of days of annual leave in 2009" and "the plaintiff's assertion" among "the calculation of annual leave allowance" in attached Form 49 of the collective agreement of this case. Pursuant to Article 48. 49 of the collective agreement of this case, the defendant shall be obligated to pay each money and delay damages to the plaintiffs, and the defendant shall not compel the plaintiffs to use the leave, thereby preventing access to the office of the plaintiffs designated by the defendant, blocking access to the computer system, thereby causing mental distress to the plaintiffs."

B. Summary of the defendant's assertion

① 이 사건 단체협약은 2006. 3. 31. 그 유효기간이 만료되었고, 노동조합 및 노동관계조정법 제32조 제3항, 제2항에 따라 그 유효기간이 2006. 3. 31.부터 2년간 연장되어 결국 2008. 3. 31. 실효된 것이므로, 원고들 중 2009. 3. 31. 이 사건 지회에 가입한 성 심, 김●●, 홍▲▲ 윤의 경우 이 사건 단체협약이 적용될 여지가 없고, 위 원고들과 피고 사이의 근로계약은 당시 적용되던 피고의 취업규칙에 의하여야 하는바, 위 원고들의 2009년 연차 휴가 일수는 별지 '연차수당 산정내역' 중 '연 (월)차 휴가 일수 / 피고 주장'란 기재와 같고, ② 원고들 중 성은 2008. 1. 1.부터 2008. 6. 30.까지 업무와 무관한 질병으로 병휴직을 하였으므로, 이 사건 단체협약에 따르더라도 연차 휴가의 발생요건이 충족되지 아니하여 연차 수당을 청구할 권리가 없으며, ③ 피고는 근로기준법 제61조(구 근로기준법 제59조의 2에 따라 성을 제외한 나머지 원고들을 상대로 연차 유급휴가를 사용하도록 휴가 사용 촉진 조치를 취하였으므로, 결국 피고는 원고들에게 연차휴가수당과 휴가 사용 촉진 조치가 위법함을 전제로 한 위자료를 지급할 의무가 없다.

3. Determination

Among the plaintiffs, whether the collective agreement of this case is applied to Balbry, red, and leap, the number of days of each leave of the above plaintiffs, particularly whether the annual paid leave of the plaintiffs is admitted, and whether the annual paid leave of the plaintiffs is applied to the annual paid leave of the plaintiffs not stipulated in the collective agreement of this case. Thus, this case's issue is examined as follows.

A. Determination on whether to recognize the validity of the instant collective agreement

10 Relevant Provisions

○ The effective period of Article 1 of the Addenda to the instant collective agreement is from April 1 to the end of March of the following year.

Notwithstanding the provisions of Article 2(3) of the Trade Union and Labor Relations Adjustment Act, the validity of this Convention shall continue until a renewed agreement is concluded even after the term of validity of the agreement expires.0 Any collective agreement under Article 32(1) of the Trade Union and Labor Relations Adjustment Act shall not set the term of validity exceeding two years.

Where the term of validity is not specified in the collective agreement under paragraph (2) or exceeds the period under paragraph (1), the term of validity shall be two years.

Where a new collective agreement is not concluded even though both parties continue to conduct collective bargaining before and after the expiration of the term of validity of the collective agreement referred to in paragraph (3), the previous collective agreement shall remain effective for three months from the expiration date of validity, except as otherwise agreed upon: Provided, That where the collective agreement has a separate agreement to the effect that it shall remain in force until a new collective agreement is concluded even after the expiration date of the term of validity, such agreement shall prevail, and either of the parties may terminate the previous collective agreement by notifying the other party six months prior to the date on which he/she intends to terminate it.

2) Determination

A) In a case where a collective agreement is automatically extended, whether Article 32(1) and (2) of the Trade Union and Labor Relations Adjustment Act applies

The purport of the provisions of the Trade Union and Labor Relations Adjustment Act that restrict the validity of a collective agreement is to unfairly restrict the parties because it is too long to change the social and economic conditions of an industrial society, and thus, it violates the purpose of maintaining appropriate working conditions and promoting stability in labor-management relations with respect to the collective agreement so that it can be adjusted at the time and in detail by limiting its validity to a certain extent (see, e.g., Supreme Court Decision 92Da27102, Feb. 93). Meanwhile, the term "Automatic extension provision regarding the validity of a collective agreement" means the provision that automatically extends the validity of an existing collective agreement after the expiration of the term of validity of the collective agreement to a certain period of time or until new collective agreement is concluded. The proviso of Article 32 (3) of the Trade Union and Labor Relations Adjustment Act provides that the term of validity of the existing collective agreement may be automatically terminated by one of the parties to the collective agreement before its automatic extension, which means that the term of validity of the existing collective agreement may not be concluded until the expiration of the term of validity of the existing collective agreement.

In light of the above legal principles, the collective agreement of this case was expired on March 31, 2006, and the new collective agreement has not been concluded until now. Thus, the collective agreement of this case was eventually invalidated on March 31, 2008 after the lapse of two years from April 1, 2006 and March 31, 2008.

B. Whether the existing collective agreement can be applied to workers who joined a trade union after the previous collective agreement became invalidated

Even if a collective agreement becomes null and void, the terms and conditions of wages, retirement allowances, working hours, and other individual labor conditions of the workers subject to the said collective agreement shall be the content of a new collective agreement and employment rules making changes thereto, or without obtaining the consent of individual workers, as long as the said collective agreement and employment rules have been concluded,

Since it still remains, employers and workers are regulated (see, e.g., Supreme Court Decision 98Da13747, Jun. 9, 2000). This effect affects only the labor contract relationship under the existing collective agreement.

In light of the above legal principles, according to the above facts, among the plaintiffs, they joined the sub-council of this case on March 31, 2009, gender, Kim Il, Kim Il, Hong, and Yoon. Before March 31, 2009, the labor contract relationship between the plaintiffs and the defendants was not maintained with the defendant pursuant to the collective agreement of this case, but maintained the labor contract relationship in accordance with the defendant's rules of employment. Thus, the labor contract relationship between the above plaintiffs and the defendants is determined in accordance with the defendant's rules of employment, and the collective agreement of this case is not applicable.

(b) Determination of days of leave;

원고들 중 김▩▩, 김.... 김, 김, 이, 정의 각 연 - 월차휴가일 수가 각 33일, 35일, 33일, 50일, 50일, 38일인 사실은 당사자 사이에 다툼이 없으나, 원고들 중 성, 심, 김, 홍, 윤의 휴가일수에 대하여는 당사자 사이에 다툼이 있는바, 위에서 본 바와 같이 위 원고들과 피고 사이의 근로계약관계는 피고의 취업규칙의 적용을 받는바, 아래에서 원고들 중 성, 심, 김●●, 홍▲▲.윤 의 각 휴가일수에 관하여 살펴본다.

1) Relevant provisions

○ The temporary retirement period under Article 32(1) of the Employment Rules of the Defendant shall be determined by the president within the following period.

1.2 sick persons: Not more than one year: Provided, That the leave benefits shall be paid to those who are deemed to have no negligence as a result of the deliberation of the personnel committee, for up to six months;

○ The Defendant’s rules of employment set forth in Article 60(2) of the Rules of Employment grants annual leave under Articles 59 and 59-2 of the former Labor Standards Act to employees in office: Provided, That if it is deemed that there is a problem in the production plan, it may be adjusted.

○ An employer under Article 59(1) of the former Labor Standards Act shall grant 15 days of paid leave to workers who have worked at least 80 percent of a year.

With respect to workers who have worked continuously for not less than 3 years, the employer referred to in paragraph (4) shall grant them one day’s paid leave for each two-year continuous work years exceeding the first one year during the leave referred to in paragraph (1). In this case, the total number of leave days including additional leave shall not exceed 25 days. In applying the provisions of paragraphs (6) through (3), the period of suspension of work for an employee’s injury or disease on duty and the period of suspension of work before and after childbirth pursuant to the provisions of Article 72 shall be deemed to have worked.

2) Determination

On the basis of the fact of recognition.In accordance with the rules of employment of the defendant and Article 59(4) of the former Labor Standards Act, the number of days of annual paid leave of the plaintiffs-centered. The whole-day red, and leap are 25 days, respectively.

B) Determination on the number of annual leave days of Seongdong-gu Seoul Metropolitan City among the plaintiffs

Although there is no dispute between the parties as to the number of days of annual leave of absence of gender among the plaintiffs from January 1, 2008 to June 30, 2008, there is a dispute between the parties as to the number of days of annual leave of sex above.

Article 59 of the former Labor Standards Act provides that an employee shall work at least 80 percent of a year as the requirement for acquiring annual paid leave. "one year" means the day when the employee bears the obligation to work under a contract for work, i.e., the prescribed number of working days. The prescribed number of working days is the remaining days after deducting the fixed number of working days from the total number of working days for one year. The annual paid leave is granted when the number of working days is deducted from the prescribed number of working days, and the number of working days is more than 80 percent of the prescribed number of working days. Thus, in light of the above legal principles, if an employee retires from his personal disease regardless of his work, the period of his temporary leave shall be calculated by calculating the number of working days from the prescribed number of working days, and it cannot be interpreted that it is excluded from the prescribed number of working days. In light of the above legal principles, it is not recognized that the annual paid leave is 208,000,0000 annual paid leave.

According to the above facts, the defendant took measures to allow the plaintiffs to use the leave acquired in 2009 pursuant to Article 61 of the Labor Standards Act, and the collective agreement of this case does not provide for the annual paid leave promotion system such as Article 61 of the Labor Standards Act, and its application is a problem.

1) Relevant provisions

○ The Defendant’s rules of employment Article 60(2) of the Rules of Employment grants annual leave under Articles 59 and 59-2 of the former Labor Standards Act to employees in office: Provided, That if it is deemed that there is a problem in the production plan, it may be adjusted.

0. The employer under Article 61 of the Labor Standards Act (Article 59-2 of the former Labor Standards Act), even though the employer has taken any of the following measures to promote the use of paid leave under Article 60(1), (3) and (4), where the worker fails to use his/her paid leave and is terminated pursuant to the main sentence of Article 60(7) due to the worker’s failure to do so, the employer is not obligated to compensate for the unused leave, and it does not constitute an employer’

1. The employer shall inform the number of days of leave not employed by each worker within ten days from the basis of three months before the end of the period specified in the main sentence of Article 60 (7) and urge the worker in writing to notify the employer of the time of use;

2. Where a worker fails to notify the employer of the time when the worker has used all or part of the leave not employed within 10 days from the time when the worker receives a demand under subparagraph 1, the employer shall determine the time when the worker has used the leave not employed by two months before the end of the period specified in the main sentence of Article 60 (7) and notify in writing the worker thereof;

2) Whether the annual paid leave employment promotion system is applied where the collective agreement does not provide for the annual paid leave use promotion system

The purpose of the annual paid leave promotion system under Article 59-2 of the former Labor Standards Act is to preserve the wage of the mother and child, improve the actual conditions used as a means to receive wages, and ensure the effectiveness of the paid leave system, and, if an employer takes measures to promote the use of leave, an employee must use the paid leave at that time, and even if the paid leave is terminated due to a failure to use the paid leave, the employer is exempted from the obligation to pay the paid annual paid leave to the employee. In light of the purport of the above system, the promotion system of the use of the annual paid leave also constitutes working conditions under the Labor Standards Act.

On the other hand, if there is no provision on the annual paid leave promotion system under a collective agreement, it is problematic whether the above system is applied under Article 3 of the Labor Standards Act. Article 3 of the Labor Standards Act provides that "the working conditions under this Act are the minimum standards, so the parties concerned can not lower the working conditions on the ground of this standard." Article 15 (1) of the Labor Standards Act provides that "the labor contract which stipulates the working conditions that do not meet the standards under this Act shall be null and void only for that part," and Article 15 (2) of the Labor Standards Act provides that "the part which becomes null and void under this Act shall be governed by the standards under this Act." This provides that "In order to achieve the purpose of the Labor Standards Act, Article 4 (2) of the Addenda of the former Labor Standards Act provides that the workers shall maintain the minimum working conditions by preventing the workers from lending the form of agreement between each labor and management to meet the working conditions under the standards under the Labor Standards Act, and that Article 4 (2) of the former Labor Standards Act provides that the former Act shall be amended within the date of entry into force of the Act."

In a case where a worker takes a leave, the said leave is not likely to infringe on the worker’s property right, such as the worker’s wage claim as a paid leave, and the legislative intent of the said system, in full view of the fact that the collective agreement explicitly provides for exclusion from the application of the annual paid leave program, such collective agreement is null and void as it sets working conditions that fall short of the standard prescribed by the Labor Standards Act, and the annual paid leave promotion system should be applied pursuant to the Labor Standards Act.

In light of the above legal principles, the defendant took measures to urge the plaintiffs, other than sex, to use the leave not used by the above plaintiffs pursuant to Article 61 of the Labor Standards Act. Thus, the defendant does not bear the obligation to pay the annual leave allowance to the above plaintiffs.

3) Whether the annual paid leave promotion system can be applied to monthly paid leave.

On the other hand, the collective agreement of this case separates monthly and annual leave. As to whether Article 61 of the Labor Standards Act applies to monthly leave, it is reasonable to interpret that Article 60 of the Labor Standards Act applies to monthly leave, since there is no difference between the requirements for acquiring it, and there is no particular difference between the purpose of the system and the method of using it.

D. Sub-committee

Ultimately, the annual paid leave granted to the plaintiffs except sex according to the collective agreement of this case and the defendant's rules of employment was promoted by the defendant's annual paid leave promotion measures under Article 61 of the Labor Standards Act, and there is no annual paid leave among the plaintiffs, so the defendant is not obligated to pay the plaintiffs annual paid leave allowance in 2009. Thus, this part of the plaintiff's assertion is without merit, and the plaintiff's assertion about consolation money on the premise that the defendant's annual paid leave promotion measures are unreasonable is without merit (On the other hand, the plaintiff asserts that the plaintiff did not agree to apply Article 59-2 of the former Labor Standards Act at the time of the conclusion of the collective agreement of this case, and therefore, it is insufficient to recognize that there was such agreement only by the evidence submitted by the plaintiff, and there is no other evidence to recognize this).

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Ducules

1) The defendant's rules of employment were amended on November 1, 2008, but the "Labor Standards Act" stipulated in Article 60 of the rules of employment refers to the former Labor Standards Act.

2) The Defendant’s rules of employment were amended on November 1, 2008, but the Labor Standards Act stipulated in Article 60 of the rules of employment refers to the former Labor Standards Act.