[1] Whether the amount paid to the full-time officer of a trade union under the status of the full-time officer of the trade union and the collective agreement can be viewed as wages (negative)

[2] Interpretation of the provisions of the collective agreement that "the treatment of the full-time employee of a trade union is equivalent to that of a general partner," and whether a claim for wages is made during the period of the strike of the full-time employee (negative)

[1] Although the full-time officer of a trade union maintains the basic labor-management relations between the employer and his/her status as an employee, it is similar to the worker in temporary retirement in that he/she is exempted from the obligation to provide labor and is exempt from the employer's obligation to pay wages, and even if the employer pays a certain amount of money to the full-time officer of a trade union according to

[2] The collective agreement entered into between a company and a trade union provides that "the company shall not give any disadvantage to the full-time officer on the ground of the former;" "the full-time officer of the union shall be deemed to continue to work; the full-time officer's pay during the full-time officer's wage and other welfare shall correspond to the ordinary union members; and the full-time officer's pay a certain amount of wages to the full-time officer to the extent that the full-time officer does not receive any unfavorable treatment than the ordinary union members engaged in the original work provided under the labor contract; therefore, treating the full-time officer more favorable than the ordinary union members in light of the purpose and purpose of the collective agreement set forth above, it is not consistent with the original intent of both labor and management; the fact that the full-time officer of the trade union, who is deemed to be the full-time officer of the trade union, is not paid wages in accordance with the principle of no-work wage for the union members due to the strike, can not be justified even in relation to the general union members.

[1] Articles 14 and 18 of the Labor Standards Act / [2] Articles 24(2), 81 subparag. 4, and 90 of the Labor Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 94Da54566 delivered on November 10, 1995, Supreme Court Decision 97Da54727 delivered on April 24, 1998 (Gong198Sang, 14566)

Plaintiff 1 and two others (Law Firm Name, Attorneys Yoon Jong-tae et al., Counsel for the plaintiff-appellant)

Lee-dong Co., Ltd. (Law Firm Park & Lee, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na3916, 3923, 3930 delivered on December 18, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The gist of the facts admitted by the court below by integrating the evidence adopted in its decision is as follows.

(1) From June 16, 200 to September 9, 200, members of the Defendant Company’s trade union engaged in strike as a matter of a non-regular workers’ wage agreement, etc., and completed the labor-management agreement between the Defendant Company and the Defendant Company on March 7, 2001. At the time, Plaintiff 3 worked as the full-time officer of the trade union, including the labor union chairperson, Plaintiff 2, and Plaintiff 1, the labor union chief, and the labor union chief.

(2) On March 7, 2001, the Defendant Company’s labor union, which belongs to the Defendant Company, accepted most of the other requirements of the labor-management agreement with the entire affiliated companies in thisland (hereinafter “this case’s labor-management agreement”). The Defendant Company agreed to accept the principle of non-labor-free pay during the strike period asserted by the Defendant Company, but the Defendant Company agreed to pay one million won to its members of the labor-management agreement with one million won as living cost subsidies (Evidence 1).

(3) Under the labor-management agreement of this case, the Defendant Company paid 220,000 won for the remaining 7.80,000 won for the living cost subsidy agreed on March 24, 2001 to most union members including the Plaintiffs who are full-time union officers.

(4) Article 13 subparagraph 1 of the collective agreement concluded on August 20, 1997 between the defendant's union and the defendant's company (hereinafter "the collective agreement in this case") provides that "the company shall not give any disadvantage for the reason of its transfer," and subparagraph 2 of Article 13 provides that "the period of full-time employment of the part-time union members shall be deemed to continue to work, and the benefit of the part-time union members and other treatment concerning the welfare shall correspond to ordinary members."

2. In full view of the admitted evidence, the court below acknowledged that in the case of the labor-management agreement at the time of the labor-management agreement in this case, the wage for the full-time officer of the labor union is different in nature from the wage of the union members and demanded the defendant company to clarify the payment of the wage for the full-time officer of the labor union during the strike period. However, the defendant company strongly rejected the above agreement on the ground that the wage for the full-time officer of the labor union should be applied to the principle of no-work-free wage. The above problem was the last galking of the negotiation, and the plaintiff 3 et al., who was the union negotiations members of the labor union, did not raise any problem any further by accepting the proposal of the non-party et al., who would be included in the above labor-management agreement. Accordingly, according to the above facts, it cannot be deemed that the labor-management agreement in this case includes the wage for the full-time officer of the labor union at the time of the labor-management agreement in this case and there was no violation of the rules of evidence.

3. Next, the court below determined that Article 13 subparagraph 2 of the collective agreement of this case provides that "the period of full-time employee shall be deemed to continue to work, and the payment of wages during the period of full-time employee and other welfare shall correspond to the general partner." This provision provides that the payment of wages shall be made in accordance with the wage level paid to the general partner equivalent to the same class and salary class during the full-time employee of the trade union, such as the plaintiffs, and that where the principle of no-work wages is applied to the general members, it shall not be deemed that the provision that the full-time employee of the trade union, such as the plaintiffs, should not pay wages during the period of dispute by applying the principle of no-work wages to the general partner. Thus, the defendant is obligated to pay wages during the period of strike to the plaintiffs who are full-time officer of the trade union.

However, we cannot agree with the above judgment of the court below.

Although full-time officers of a trade union maintain basic labor-management relations between the employer and maintain their status as workers, they are similar to those of workers in temporary retirement in terms of exemption from the duty to provide labor and exemption from the employer's wage duty, and even if an employer pays a certain amount of money to the full-time officer of a trade union according to a collective agreement, it cannot be viewed as wages which are paid for labor (see Supreme Court Decisions 94Da54566, Nov. 10, 1995; 97Da54727, Apr. 24, 1998).

In this case, Article 24 (2) of the Labor Union and Labor Relations Adjustment Act (amended by Act No. 5310 of March 13, 1997) provides that the full-time officer of a trade union shall not receive any wage from the employer during the previous period of the trade union. The latter part of Article 81 (4) of the same Act provides that the employer's act of supporting the full-time officer of the trade union shall be one of unfair labor practices, and Article 90 of the same Act provides that the employer shall be subject to criminal punishment for those who violate the above provision. However, Article 6 (1) of the Addenda of the same Act (amended by Act No. 5310 of March 13, 1997) provides the employer with the benefit of the full-time officer of the trade union at the time of the enforcement of the above Act (amended by Act No. 6456 of March 28, 201) and Article 24 (1) of the same Act shall not apply to those who provide the full-time officer's work based on the above provision of labor contract.

Therefore, Article 13(1) and (2) of the collective agreement of this case stipulates that a certain amount of wages shall be paid to the full-time officer of a trade union to the extent that the full-time officer does not receive any unfavorable treatment than the ordinary union members engaged in the original work under the labor contract. Thus, more favorable treatment of the full-time officer of a trade union is not consistent with the initial intent of both the labor and management in light of the purpose and purport of the provisions of the collective agreement as above. Moreover, it is not justified that a full-time officer of a trade union who is the executive officer of a trade union composed of the union members receives only his/her wages in relation to the general union members.

Therefore, the provisions of Article 13 (1) and (2) of the collective agreement of this case shall be interpreted to the effect that the full-time officer of a trade union is unable to claim wages to an employer like ordinary union members if ordinary union members are not paid wages during the strike period in accordance with the principle of non-labor-free wages. Thus, the judgment of the court below which judged otherwise is erroneous in the misunderstanding of the legal principles as to the interpretation of a collective agreement, which affected the conclusion

In addition, Supreme Court en banc Decision 96Da26671 delivered on December 6, 1996 cited by the court below is a major issue as to whether the court below violated the precedents, which are the grounds for appeal of small amount case, and the decision of the court below is unfair for the employer to pay wages during the period of work on the grounds that the full-time officer of a trade union performed non-legal trade union activities during the period of work. The employer asserted that the decision of the court below is against the Supreme Court en banc Decision 94Da26721 delivered on December 21, 1995, which declared the principle of non-labor-free wages. Since the above decision of the Supreme Court declared the principle of non-labor-free wages for general workers, it cannot be viewed as a precedent applicable to the above case concerning full-time officer who does not have an obligation to provide labor, the above grounds for appeal cannot be viewed as a legitimate ground for appeal under the Trial of Small Claims Act, and it cannot be viewed that the industrial action should be paid during the period of work or the principle of non-labor-free wages for full-time officers.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)