As shown in the attached Form (Law Firm Shin, Attorney Shin Jae-soo, Counsel for the defendant-appellant)

Seoul Special Metropolitan City (Attorney Shin Jae-min, Counsel for defendant-appellant)

June 19, 2019

Seoul Central District Court Decision 2016Gahap59907 Decided February 9, 2018

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs the amount of money stated in the separate sheet 2 of the attached Table 2 with 5% per annum from December 18, 2017 to the date the judgment of this case is rendered, and 15% per annum from the next day to the date of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against which the order to pay the plaintiffs is revoked. The defendant shall pay to the plaintiffs 5% interest per annum from December 18, 2017 to the date the judgment of this case is rendered, and 15% interest per annum from the next day to the date of full payment ( Plaintiffs 4, 9, 19, 30, 41, 44, and 46 excluded each amount indicated in the “final prize” column in the attached Table 2.

1. Basic facts

A. Status of the parties

(1) The Defendant is a metropolitan local government that establishes and operates a public middle and high school (hereinafter “each of the instant schools”) located in Seoul, and is deemed to have employed the Plaintiffs from January 1, 2014 pursuant to Article 2 (Transitional Measures) of the Addenda to the Seoul Metropolitan Office of Education Ordinance on Employment, etc. of Educational Officials. From this point, the Defendant has managed the overall matters such as the fixed number, employment, service, wages, etc. of educational officials.

(2) The Plaintiffs are employees of the Gu (Gu) parent association or employees of the Gu (Gu) promotion council, and are public officials of salary grade system who have received remuneration from the school accounting to support administrative affairs and facility management affairs in schools.

B. Personnel composition of the administrative office and facility management office of each of the schools of this case

After being employed pursuant to the State Public Officials Act and the Local Public Officials Act, public educational officials (hereinafter referred to as "public officials of this case") and salary class workers have been in charge of administrative affairs and facility management in the administrative office and facility management office of each school of this case.

(c) Changes in the remuneration system for salary grade workers;

(1) As of March 1, 2001, salary grade workers were deemed to have been appointed as school accounting staff as of March 1, 2001. The remuneration was paid within the revenue budget by applying the Local Public Officials Remuneration and Allowances Regulations and the Seoul Special Metropolitan City Guidelines for Budget Execution of Budget for Special Accounts for Educational Expenses based on the remuneration of local public officials at Grade 10 or employment public officials (office assistants).

(2) On the other hand, when the standards for remuneration of Grade 10 in technical service for local public officials and allowances have been abolished, the Seoul District Office of Education and the Seoul General Trade Union, through a collective agreement on July 19, 2013 (hereinafter “existing collective agreement”) for the purpose of improving the treatment of salary class workers, applied “the remuneration of Grade 9 in technical service” in the Public Officials Remuneration Regulations from August 19, 2013 to “the remuneration of Grade 9 in technical service”; and if the system is abolished later, the agreement was made to pay wages by applying “the remuneration of Grade 9 in general service.” The details of the collective agreement are as follows.

Article 10 (1) of the attached Table 10 (1) of the Regulations on Local Public Officials, Regulations on Allowances, etc. for Local Public Officials, and Guidelines for the Management of Remuneration, etc. of Local Public Officials shall apply mutatis mutandis to the remuneration of the personnel of the school accounting association (Gu) among the personnel of the school accounting: Provided, That the following remuneration shall be paid by applying the remuneration of class 9 to the personnel of class 9 of the former technical service who was repealed by the amendment of the Local Public Officials Act, from August 2013 (Attached Table 8): Provided, That in cases of high schools, the salary of class 1, which serves as the basis for the payment of wages, is adjacent to the level of general service whose current salary is not lowered: Provided, That the criteria for the payment of remuneration of class 10 of the technical service, which was abolished by the amendment of the Local Public Officials Act, shall be applied to the remuneration of class 10 of the current technical service.

(3) Following the abolition of the system for remuneration of public officials in technical service in around 2014, Plaintiffs were paid wages in accordance with the standard for remuneration of public officials in general service. However, the Seoul District Office of Education and the Seoul Special Metropolitan City Public School Accounting Union concluded a collective agreement on July 21, 2016 (hereinafter “instant collective agreement”) and Article 44 of the same Act provides that “The wages of public officials in salary class workers shall apply mutatis mutandis to “Local Public Officials Remuneration Regulations,” “Rules on Allowances, etc. for Local Public Officials,” and “Guidelines for Handling Local Public Officials’ Remuneration, etc.’s Remuneration, etc.” shall apply mutatis mutandis.

[Grounds for Recognition: Evidence No. 1, Evidence No. 2, evidence No. 6-1, 2, evidence No. 9, evidence No. 9, evidence No. 35, evidence No. 36, evidence No. 115, evidence No. 126, evidence No. 126, evidence No. 3, evidence No. 4, evidence No. 8, evidence No. 9, evidence No. 10, evidence No. 11, evidence No. 12, evidence No. 15, evidence No. 35, evidence No. 36, respectively, the purport of the whole pleadings]

2. The parties' assertion

A. The plaintiffs' assertion

(1) The Plaintiffs are not paid the following amount of money (hereinafter “instant allowances, etc.”) as wages when comparing them with private school staff (administrative practical staff, facility management staff) and the instant public officials as salary class workers.

(1) Various allowances on the assumption of continuous service: A fixed-term service allowance, job grade allowance, major leave allowance, treatment public officials allowance, and management allowance increase (hereinafter referred to as “all kinds of allowances on the assumption of continuous service promotion”) increased in proportion to an increase in the principal salary and the principal salary based on the continuous service promotion.

(2) An overtime work allowance to be paid uniformly at least 15 days a month at the time of attendance at work.

(3) From the benefits of March to the day when the principal salary increase for the year concerned was not received due to the payment of the principal salary increase for the year concerned, the principal salary increase for January and February.

(2) The plaintiffs' failure to receive each of the instant allowances, etc. compared to the public officials of this case violates Article 44 of the collective agreement of this case, which provides that various provisions concerning the remuneration of local public officials shall apply mutatis mutandis, and that there shall not be any discrimination or disadvantage in application, and even if they do not violate family affairs, as long as the plaintiffs are performing the same kind of duties as the public officials of this case, they violate Article 6 of the Labor Standards Act

(3) Even if the plaintiffs were to perform the same kind of duties as private school employees, it is against Article 6 of the Labor Standards Act that they did not receive each of the instant allowances, etc. compared to private school employees.

3. Order of determination on the issues of this case

First, compared to the public officials of this case, ① whether the payment of various allowances of this case constitutes subject to the application of Article 44 of the collective agreement of this case, and if so, whether the unpaid allowances of this case constitutes discrimination and disadvantage, and ② We examine whether Article 6 of the Labor Standards Act and Article 50 of the collective agreement of this case are in violation of Article 44 of the collective agreement of this case

Then, we will examine whether the Plaintiffs constitute comparative group workers compared with private school employees, and whether the payment of various allowances, etc. in this case violates Article 6 of the Labor Standards Act.

4. Comparison with the instant public official: Whether the payment of various allowances premised on promotion for continuous service violates Article 44 of the instant collective agreement

The following facts are acknowledged according to the overall purport of Gap evidence 1, Gap evidence 1, Eul evidence 2, Gap evidence 5, Eul evidence 14, Eul evidence 28, Eul evidence 1, Eul evidence 8, Eul evidence 10, Eul evidence 10, Eul evidence 11, Eul evidence 16, and Eul evidence 16. Accordingly, the meaning of Article 44 of the collective agreement of this case is to determine the criteria for the amount of salary for salary grade workers, and it is not to apply the whole provision for salary grade workers. Thus, on the ground of the provision of Article 44 of the collective agreement of this case, it cannot be viewed that the content of the agreement of Article 10 of the existing collective agreement of this case, which applied the remuneration standard of class 9 or class 9 of general service from August 2013, with the exception of the provision of Article 44 of the collective agreement of this case.

(a) Details of conclusion under Article 10 of the existing collective agreement;

The remuneration of the salary class workers was paid within the revenue budget for the school operation support expenses based on the remuneration of local public officials of class 10 or public officials (office assistants), and the standards for the 10th class remuneration of local public officials and allowances have been repealed, the Seoul District Office of Education and the Seoul General Trade Union, through the existing collective agreement for the purpose of improving the treatment of the salary class workers, applied the "the remuneration of class 9" of the Public Officials Remuneration Regulations from August 2013 to the "the remuneration of class 9" of the public officials of class 9, if the public officials of class 9 are abolished later, the remuneration of the school class member of the school accounting among the public officials of class 10 (1) shall be paid by applying the Local Public Officials Remuneration Regulations, the Regulations on the Allowances of Local Public Officials, the remuneration of local public officials, and the guidelines for the remuneration of local public officials from August 2013 to paragraph (2).

B. Conclusion of Article 44 of the instant collective agreement

(1) As from October 23, 2015, the Defendant and the Seoul Special Metropolitan City Public School Accounting Union began collective bargaining. The main requirements of the labor union related to the payment of remuneration are to change the phrase “applicable mutatis mutandis under Article 10(1) of the previous collective agreement so that the payment standards for remuneration and allowances by school can be uniform by changing the phrase “applicable mutatis mutandis under Article 10(1) of the previous collective agreement.” In addition, there was no demand to change the payment standards for remuneration under Article 10(2) of the existing collective agreement.

(2) Even in accordance with the provisional agreement (No. 9) dated May 16, 2016, it was added that “the Local Public Officials Remuneration Regulations, Regulations on Allowances, etc. for Local Public Officials, and Regulations on the Remuneration of Local Public Officials shall apply mutatis mutandis, so that there is no discrimination or disadvantage with public officials in general service in applying the Local Public Officials Remuneration Regulations, Regulations on Allowances, etc. for Local Public Officials, and Regulations on Remuneration of Local Public Officials, etc., and there is no reason to abolish an agreement on the remuneration criteria agreed under Article 10(2) of the existing

(3) After the preparation of such provisional agreement, the Seoul Special Metropolitan City Public School Salary Accounting Union withdrawn the strike, and based on the contents of the said provisional agreement, Article 44 of the instant collective agreement was prepared.

(4) Like Article 10(1) of the previous collective agreement, Article 44 of the instant collective agreement is limited to the provisions applicable mutatis mutandis to the Local Public Officials Remuneration Regulations, Regulations on Allowances, etc. for Local Public Officials, and guidelines for handling local public officials’ remuneration duties, but did not list the appointment of local public officials, which are the grounds for local public officials’ continuous

C. Nature of a promotion system on appointment of local public officials

(i)the purpose and duration of the introduction of the continuous service promotion system;

Article 32-2 of the current Decree on the Appointment of Local Public Officials provides that the number of years of continuous service of public officials of Grade 8 or below in Article 34 of the former Decree on the Appointment of Local Public Officials shall be reduced by one year for each current class of public officials of Grade 8 or below in Article 34 of the former Decree on the Appointment of Local Public Officials as amended by Presidential Decree No. 15167, Nov. 18, 1996, and for this purpose, the provisions on administrative organization, difficulty and responsibility of the former local government as amended by Presidential Decree No. 15167, Nov. 18, 1996 on the administrative organization, fixed number of local public officials of Grade 7, 8, and 9, and the fixed number of public officials of Grade 7, 7, 8, 9, and 10 of the former Decree on the Appointment of Local Public Officials on the Appointment of Local Public Officials on the appointment of Local Public Officials on the integrated management of the fixed number of classes so that it can be operated.

As such, the main purpose of the introduction and expansion of the continuous service promotion system is to boost the morale of lower-ranking public officials, and ultimately to ensure the career public officials system by encouraging continuous service. Barring any circumstances to deem that the salary class workers clearly differ from the instant public officials and the employment route, and that the above continuous service promotion system has been incorporated in the organization according to the classification system under the Local Public Officials Act from the date of appointment to the present, it is difficult to find the justification for applying the above continuous service promotion system or paying benefits by re-fixing the salary class accordingly.

(2) Various requirements for promotion for continuous service;

According to the Guidelines for Integration in the Personnel Affairs of Local Public Officials (Rules No. 51 of the Ministry of the Interior and Safety), continuous service promotion under Article 33-2 of the Decree on the Appointment of Local Public Officials under Article 33-2 of the Decree on the Appointment of Local Public Officials shall not be automatically made, but shall be included in the number of years of promotion, and shall not be subject to the grounds for restriction on promotion, and shall not be determined as disqualified for promotion of continuous service in the Personnel Committee (as for Grade 6 face-to-face review and a written review of Grade 7 or below). In addition, in the case of public officials of class 8 or below meeting the requirements for promotion of continuous service under Article 3-2(1) and (2

(3) The position classification system under the Local Public Officials Act

① According to Article 22 of the Local Public Officials Act, the system of local public officials determines the position classification system, and the position classification system provides that all relevant positions shall be classified by occupational group, functional category, class, or duty grade in accordance with the type, difficulty and responsibility of duties, but the same qualification shall be required for the positions belonging to the same class or duty grade, and the same or similar remuneration shall be paid.

② The promotion system for continuous service on the appointment of a local public official is based on such classification system under the Local Public Officials Act, and the principal salary and allowances paid pursuant to re-Definition of salary class (Article 10(1) of the Local Public Officials Remuneration Regulations) are increased on the premise that the level of difficulty and responsibility of duties, such as managing and supervising a subordinate as a superior who is granted a higher class due to the promotion for continuous service.

③ However, even based on the evidence submitted by the Plaintiffs, there is no evidence suggesting that the scope of duties, such as “management of office” or “management of facilities,” are different areas of duties, and that there is no distinction between classes, and that their ability to perform duties (such as skilled degree, skills and knowledge level), degree of difficulty or responsibility (evaluation of the outcome of performing duties and degree of disciplinary action) is increased in response to the continuous service period, such as there is discrimination in the content or degree of difficulty of duties performed by each school.

5. Comparing with the public officials of this case: Whether the unpaid amount of overtime work allowances is in violation of Article 44 of the collective agreement of this case.

(a) Non-payment of the fixed amount of overtime work allowances;

Article 15(2) of the Regulations on Allowances, etc. for Local Public Officials, etc., the Defendant uniformly paid the fixed amount of overtime work allowances regardless of whether he/she works overtime work hours, when he/she works overtime at least 15 days a month with respect to the public officials of this case. On the other hand, there is no dispute between the parties as to the fact that the Defendant paid the fixed amount of overtime work allowances to the public officials of this case only when he/she actually works overtime work hours.

B. Criteria for determining “discrimination and disadvantage” under Article 44 of the instant collective agreement

Article 44 of the collective agreement of this case provides that "The wages of salary class workers shall apply mutatis mutandis to the Local Public Officials Remuneration Regulations, Local Public Officials' Allowances, etc., and Local Public Officials' Remuneration Services shall not be discriminated and disadvantageous to public officials in general service."

Here, “discrimination and disadvantage” refers to the overall disadvantage of salary grade workers by treating a salary grade worker differently from a public official in general service and a salary grade worker without reasonable grounds when paying remuneration to a salary grade worker by applying each of the above provisions mutatis mutandis. In the absence of reasonable grounds, the term “discrimination and disadvantage” means that the method, degree, etc. of treating a salary grade worker is inappropriate even if the necessity for treating a salary grade worker is not recognized or the need for treating a salary grade worker is recognized otherwise (see Supreme Court Decision 2014Du43288, Dec. 1, 2016).

(c) Determination on the existence of reasonable grounds;

According to the overall purport of evidence Nos. 15, 16, and 19, the following facts are acknowledged. According to the purport of Article 15(6) of the Regulations on Allowances, etc. for Local Public Officials, the purpose of paying the fixed amount of overtime work allowances to public officials who receive overtime work allowances in accordance with the calculation standards under Article 15(5)2 of the same Act is to provide overtime work allowances. It is reasonable to view that there is a reasonable ground that the Defendant did not pay the fixed amount of overtime work allowances to the Plaintiffs who calculated and paid overtime work allowances in accordance with the Labor Standards Act. The Plaintiffs’ assertion on this part is without merit.

(1) Calculation method of overtime work allowance for the instant public official and payment of the fixed amount of overtime work allowance

① According to Article 13 and the proviso to Article 13-2 of the Seoul Special Metropolitan City Ordinance on the Service of Local Public Officials, the working hours of public officials shall, in principle, be from 9:0 to 18; however, the working hours of local public officials working for schools at various levels shall be autonomously adjusted by the head of the school in consideration of the equity with teachers and school conditions, and

Accordingly, the instant public official was determined from 8 to 16 hours (total 8 hours of work) as the same time as the office hours of teachers.

② Therefore, the instant public official should have worked 16 hours after 16 hours of overtime work. However, the purport of Article 15(5)2 of the Regulations on the Allowances, etc. for Local Public Officials, etc. amended by Presidential Decree No. 24126, Sept. 28, 2012, newly established that “the hours calculated by subtracting one hour of overtime work from the hours of overtime work on the day other than holidays and Saturdays” was that “if the hours of overtime work are less than one hour, it shall not be added to the hours of overtime work.”

(3) However, Article 15(6) of the Regulations on Allowances, etc. for Local Public Officials provide that public officials subject to Article 15(5)2 of the Act on Allowances, etc. for Local Public Officials may pay a fixed amount of overtime work in addition to overtime work hours in addition to overtime work hours, regardless of whether they work overtime hours, in a lump sum, after deducting one hour overtime work hours from overtime work hours without considering the difference between individuals.

(2) Method for calculating overtime work allowances for salary class workers;

① The Defendant paid the overtime work hours of salary class workers by adding 50% of ordinary wages after adding the overtime work hours to the unit of minutes in accordance with the Labor Standards Act, and instead, did not pay the fixed amount of overtime work hours under Article 15(6) of the Regulations on Allowances, etc. for Local Public Officials.

② From December 2017, the Plaintiffs asserts to the effect that the fixed amount of overtime work allowance ought to be paid, as well as the public officials of this case, the overtime work hours after the retirement hours (16:00 hours) should be deducted from the overtime work hours.

However, according to the overall purport of evidence No. 37 and arguments, the defendant accepted the demands of salary class workers from around December 2017, and agreed to grant one hour to 16:0 to 16:00 hours after the retirement of the worker and the public official of this case, but Article 54(1)4 of the Labor Standards Act provides that the hours of unpaid hours of recess as set forth in the same manner as teachers and the public official of this case shall be eight hours in total from 8 to 16:00 to 17:0 hours after the retirement of the worker. Thus, if there are circumstances, one hour from 16:0 to 17, as a matter of principle, shall be deducted from the hours of overtime to the hours of overtime. The above plaintiffs' assertion is without merit.

6. Comparison with the public official of this case: Whether the amount of increase in the principal salary for the year concerned is in violation of Article 44 of the collective agreement of this case that was not paid for the first and second months due to the payment from March's salary.

In the case of the public officials of this case, the public officials' salary table is renewed as of January 1 of each year and accordingly the individual public officials' salary is increased accordingly, while in the case of the public officials of this case, the public officials of this case's salary class is applied as of March 1 of each year, and when the standard of salary increased as of March 1 of each year is based on the corresponding year, the fact that the public officials of this case's salary class is not paid, there is no dispute

Article 30-2 (1) of the Elementary and Secondary Education Act provides that "School Accounting shall be established in national or public elementary schools, middle schools, high schools and special schools," and Article 30-3 (1) of the same Act provides that "the fiscal year of the school accounting shall begin on March 1 of each year and end on the last day of February of the following year."

In addition, comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 15 and Eul evidence Nos. 16, it can be recognized that the salary class workers provide necessary labor in order to support or assist education and administrative affairs at various levels of schools, receive remuneration from the school accounting, in particular, the personnel expenses of salary class workers are currently included in the current school operation expenses, and the budget is compiled and paid within the school accounting year.

In addition to the above relevant provisions and facts, the Plaintiffs’ payment of increased remuneration from March 1 of each year cannot be deemed inevitable due to the reason that the financial resources of the Plaintiffs’ payment of remuneration are based on school accounting. In addition, the increase that was not paid in January and February of the pertinent year is paid for the following year 1, February of the following year, and the increase that was not finally compensated for 1,2 months based on the retirement date, but did not have much amount, it is deemed that there was a portion of the increase that was not finally compensated for 1,2 months. However, this is reasonable even if the salary class employee did not receive the increased remuneration from January 1 of each year, unlike the instant public official. The Plaintiffs’ assertion in this part is without merit.

7. Comparison with the public official of this case: Whether the payment of various allowances of this case violates Article 6 of the Labor Standards Act

The grounds of the judgment of the court of first instance are set forth in the main sentence of Article 420 of the Civil Procedure Act, from No. 7 to No. 8. 7.

8. Comparison with the public officials of this case: Whether the payment of various allowances of this case violates Article 50 of the collective agreement of this case

Article 50(1) of the collective agreement of this case provides that the Office of Education shall pay the same wage to the same-value work within the same business, and that Article 50(2) provides that the standards for the same-value work shall be the technology, effort, responsibility, working conditions, etc. required for the performance of duties. There is no

The term “same-value work” refers to a work that is deemed, even if a worker’s work is identical or almost identical to one another within the pertinent workplace or its work is somewhat different from that other person’s work (see Supreme Court Decision 2010Da1011, Mar. 14, 2013; 2010Da1011, Mar. 14, 2013).

As seen earlier, there are fundamental differences in the type of employment, procedures, details of duties, scope, authority and responsibility of the instant public officials and the instant public officials, and there are reasonable grounds for not paying various allowances of this case. Therefore, this cannot be deemed to be in violation of the same labor and the same wage principles. The Plaintiffs’ assertion in this part is without merit.

9. Comparison with private school clerical staff: Whether the payment of various allowances in this case violates Article 6 of the Labor Standards Act.

As to this part, the grounds of the judgment of the court of first instance shall be cited from 6th to 7th, pursuant to the main sentence of Article 420 of the Civil Procedure Act.

10. Conclusion

Therefore, the judgment of the court of first instance is justified, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Man-man (Presiding Judge)

1) See Article 34(6) through (8) of the former Decree on Appointment of Local Public Officials amended by Presidential Decree No. 15167, Nov. 18, 1996 by the Ministry of Government Legislation

2) Article 15 (Overtime Work Hours) of the Regulations concerning Allowances, etc. for local public officials, etc., (5) The hours worked in accordance with an order to overtime work (hereinafter referred to as "overtime work hours") shall be calculated by the methods classified as follows. In such cases, daily overtime work hours shall be added to the unit of minutes, and the number of hours less than one hour after the calculation of monthly overtime work hours shall be discarded.

3) See the reason for amendment of Article 15(4) of the Regulations on Allowances for Local Public Officials, etc. amended by Presidential Decree No. 24126, Sept. 28, 2012

(4) Article 54 (Recess) (1) An employer shall allow a recess of not less than thirty minutes if working for four hours, or a recess of not less than one hour if working for eight hours, during work hours.