Plaintiff 1 and 28 others (Attorney Lee In-he et al., Counsel for the plaintiff-appellant)

Korea Human Resources Development Service (Law Firm Han-ro, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)

October 19, 2012

Seoul Western District Court Decision 2011Gahap2098 Decided April 19, 2012

1. The part against the defendant as to the claim for confirmation of the judgment of the court of first instance and the part against the defendant exceeding the amount ordered to be paid under the following among the part of claim, shall be revoked, and all the plaintiffs' claims corresponding to the revoked

The defendant shall pay to the plaintiffs 2 the amount of money calculated by the rate of 20% per annum from March 23, 2011 to the day of full payment with respect to each of the above amounts and each of the above amounts.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 80% is borne by the Plaintiffs, and the remainder is borne by the Defendant.

1. Purport of claim

The plaintiffs confirm that they are the workers of each class listed in the separate sheet No. 6 attached hereto. The defendant shall pay to the plaintiffs the amount calculated by the ratio of 20% per annum from March 23, 2011 to the date of complete payment of each of the above amounts and each of the above amounts.

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

1. Quotation of the first instance judgment

The reasoning of this court's judgment is the same as the written judgment of the court of first instance other than the following. Therefore, it is citing it as it is by the main text of Article 420 of the Civil Procedure Act.

The actual contents of the 11th page “the difference of wages” ? “the difference of wages, etc. other than long-term continuous service allowances, and the total amount of long-term continuous service allowances,”

The portion of “3. Determination” in Forms 13, 21, through 25, shall be amended as follows:

“3. Determination

A. Whether the plaintiffs are subject to the former personnel management regulations and remuneration regulations of this case

1) On the premise that Article 42(2) of the instant personnel regulations and Article 7(1) of the instant remuneration regulations apply to the Plaintiffs prior to the instant regular employment conversion, the Plaintiffs asserted that the amendment of Article 2 of the Addenda to the instant remuneration regulations excluding the application of the said provisions was an unfavorable rules of employment against the Plaintiffs, but the amendment did not follow the consent procedure in accordance with the collective decision-making method of the Plaintiffs, and that the amendment was invalid under Article 2 of the Addenda to the instant remuneration regulations, on the ground that the amendment was not reasonable in terms of social norms. Accordingly, we examine whether Article 42(2) of the instant personnel regulations and Article 7(1) of the instant remuneration regulations apply to the Plaintiffs.

2) In full view of the facts acknowledged earlier and the following circumstances revealed in each of the personnel management regulations and remuneration regulations of the instant case, Article 42(2) of the Personnel Management Regulations and Article 7(1) of the Remuneration Regulations cannot be deemed as the rules of employment that apply to the Plaintiffs prior to the instant full-time conversion.

A) According to Article 3 of the Personnel Management Regulations and Article 2 of the Remuneration Regulations, the above provisions shall apply to all the working conditions, such as personnel management and remuneration, except as otherwise provided for in other internal regulations. On the other hand, according to Articles 1 and 2 of the “Rules on the Management of Non-regular Employees,” for non-regular workers including the Plaintiffs, such as contractual workers and day-time employees, the “Rules on the Management of Non-regular Employees” shall be formulated, and matters necessary for the working conditions, such as personnel management and remuneration, are separately provided. Accordingly, the Defendant’s working conditions are transferred to non-regular workers by applying the working conditions under the “Rules on the Management of Non-regular Employees,” while the working conditions are transferred to non-regular workers including the Plaintiffs.

B) According to Article 16 of the Personnel Regulations, the Defendant’s president may appoint non-regular workers, other than regular workers, within the scope of the budget, as necessary, within a fixed period of time. According to Article 15(1)7 of the Personnel Regulations, non-regular workers who work in a special business area requiring specialized knowledge, skills, and experience, who are employed temporarily, may be newly employed as full-time workers through a special examination, not through an open competitive examination. Meanwhile, Article 42(2) of the Personnel Regulations provides that where a non-regular worker is newly employed as a full-time worker by the Defendant’s special screening, the period of his/her service as a previous non-regular worker shall be included in the total period of his/her continuous service. Accordingly, Article 7(1) of the Remuneration Regulations provides that the initial salary of a new full-time employee is determined based on a certain period of conversion experience for his/her previous service

C) Ultimately, Article 42(2) of the instant personnel regulations and Article 7(1) of the instant remuneration regulations provide that when the working conditions of the Defendant’s regular employees group and non-regular employees group are newly employed as regular employees through a special screening under Article 15(1)7 of the instant personnel regulations, the calculation of the total period of continuous employment that reflects the previous period of employment, and the calculation of the working conditions under Article 42(2) of the instant personnel regulations and Article 7(1) of the said remuneration regulations are the provisions that determine the working conditions of the initial salary. In other words, Article 42(2) of the instant personnel regulations and Article 7(1) of the instant remuneration regulations are merely those applied to the permanent employees group and do not directly apply to the non-regular employees group. Therefore, even if the aforementioned provisions are modified, it is difficult to view that the Plaintiffs’ wage regulations are directly disadvantageous to the employees group, such as the aforementioned remuneration regulations, which are the employees employed under Article 15(1)7(1)7 of the instant personnel management regulations.

D) In addition, the Plaintiffs do not have been newly employed as regular employees through a special screening under Article 15(1)7 of the above personnel regulations. Moreover, as seen in the background of the Plaintiffs’ transition to regular employees including the developments leading up to the amendment of Article 2 of the Addenda of the above personnel regulations, the Plaintiffs, as part of the Plaintiffs’ “comprehensive measures for non-regular workers in the public sector” at the time, should not reflect the existing career in calculating the starting annual salary, and should not calculate the starting annual salary based on the remuneration received at the time of non-regular employees, and (2) should be compared with the existing remuneration system and promotion system different from the existing regular employees by newly establishing a separate job series, and at the same time, the burden of raising personnel expenses due to the establishment of a separate job series should be mitigated, to prevent the inefficient of personnel management due to the creation of a new new job series, the above proposal was established, and Article 2(1)2 of the above Act, including the Plaintiffs, should be submitted to the Plaintiffs and Article 4(2) of the above Act, which cannot be applied to the Plaintiffs’ employees including the aforementioned remuneration provision.

3) Therefore, even if the Defendant revised Article 2 of the Addenda to the instant salary regulations without following the Plaintiffs’ collective decision-making process, and excluded the application of Article 42(2) of the instant salary regulations and Article 7(1) of the instant salary regulations, as seen earlier, the Plaintiffs are the Defendant’s non-regular employees who are not subject to the original personnel regulations and the salary regulations, and even in light of the background of the Plaintiffs’ transition to regular employees, Article 42(2) of the instant salary regulations and Article 7(1) of the instant salary regulations cannot be deemed immediately applicable. Thus, the Plaintiffs cannot be deemed to suffer disadvantages, such as infringement of the Plaintiffs’ vested interests, etc. due to the revision of Article 2 of the Addenda to the instant salary regulations. Moreover, since the Plaintiffs accepted the working conditions under the revised salary regulations and the salary regulations and acquired labor relations governed by the aforementioned provisions after the amendment, it is reasonable to deem that Article 42(2) of the instant salary regulations and Article 7(1) of the salary regulations do not apply to the Plaintiffs, regardless of the legitimacy of the amendment of Article 2 of the aforementioned remuneration regulations (see, 25.

B. Whether it is invalid due to discrimination against the violation of the mandatory law

1) The Plaintiffs asserted that the Defendant’s non-recognition of work experience against the Plaintiffs’ non-payment of wages based on such work experience is invalid for violating Article 8(1)1 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) and Article 6(2) of the Labor Standards Act, as discriminatory treatment against the working conditions.

2) First, considering whether Article 8(1) of the Fixed-term Employment Act is a violation of the prohibition of discrimination, the prohibition of discriminatory treatment under the Fixed-term Employment Act provides that the above prohibition of discriminatory treatment shall not be imposed on the ground that it is a non-regular worker, and in this case, the Plaintiffs are excluded from the application of Article 42(2) of the Personnel Regulations and Article 7(1) of the revised Remuneration Regulations, and thus, cannot be viewed as being treated as discrimination on the ground that they are a fixed-term worker, since they are no longer non-regular workers at the time of the application of the amended Rules of Employment. In addition, the Plaintiffs entered into a new employment contract with the Defendant while converting the Defendant's non-regular worker into a fixed-term worker, and whether the career experience as an existing non-regular worker should be included in the total continuous service period can be determined in accordance with the Defendant's collective agreement or rules of employment. Accordingly, the Plaintiffs' assertion on the prohibition of discriminatory treatment under Article 8(1) of the Fixed-Term Employment Act cannot be deemed to violate this part of the Act.

3) Next, considering that the employment form of non-regular workers claims discrimination based on the premise that the employment form of non-regular workers is a social status, if the employment form of non-regular workers is a social status, the term "social status" means a position that occupies for a long time in society and entails a certain social evaluation (see Constitutional Court Order 93HunBa43, Feb. 23, 1995). However, the employment form of non-regular workers or employment route based on such employment form or employment route cannot be deemed as either impossible or continuous or permanent status, and it cannot be deemed as a one-speed mark related to a specific worker's personality, it is difficult to view that it is included in the "social status" as stipulated in Article 6 of the Labor Standards Act. Accordingly, this part of the plaintiffs' assertion that the amendment of Article 2 of the Addenda to the salary Regulations of this case violates Article 6 of the Labor Standards Act is without merit.

C. Determination on the claim for long-term continuous service allowances

According to the facts acknowledged earlier, Article 2(1) of the Addenda of the instant Remuneration Regulations provides that Article 42(2) of the Personnel Management Regulations and Article 7(1) of the Remuneration Regulations shall not apply to the starting salary of employees who are converted from non-regular workers to general service pursuant to the "comprehensive Measures for Non-regular Workers in the Public Sector"; however, the scope of the application of Article 29 of the instant Remuneration Regulations is specified as the calculation of the starting salary of the Plaintiffs. However, there is no provision regarding the exclusion of the application of Article 29 of the instant Remuneration Regulations, and there is no special circumstance to exclude the Plaintiffs, who are currently converted from the current non-regular workers to the regular workers group, from the "period of service as a non-regular worker" which is the basis for calculating the long-term continuous employment allowance as stipulated in Article 29 of the instant Remuneration Regulations. Accordingly, regardless of whether the unfavorable effect of Article 42(2) of the instant Personnel Management Regulations and Article 7(1) of the Remuneration Regulations related to the calculation of the starting salary, the Plaintiffs can claim the long-term continuous service allowance lawfully calculated in proportion to the above Article 29.

D. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiffs damages for delay calculated at the rate of 20% per annum as stipulated by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from March 23, 2011 to the day of full payment, as claimed by the Plaintiffs, with respect to each of the above money stated in the “long-term Continuous Allowance” column in the attached Table 2 as a long-term continuous service allowance under the above remuneration provision, and each of the above money, as claimed by the Plaintiffs, with regard to the above money. Notwithstanding Article 2 of the Addenda of the above remuneration provision, the Defendant is obligated to pay damages for delay calculated at the rate of 20% per annum as stated in the records, which is obvious from March 23, 2011 to the day of full payment. Notwithstanding Article 2 of the Addenda of the above remuneration provision, Article 42(2)

2. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and the remaining claims are dismissed without merit. The part against the defendant as to the claim for confirmation of the judgment of the court of first instance, which has partially different conclusions, and the part against the defendant ordering payment in excess of the above recognition amount, is unfair, and all of them are revoked, and the plaintiffs' claims corresponding to the revoked part are dismissed, and the defendant's remaining appeal is dismissed as it is without merit.

[Attachment]

Judges Kim Jong-tae (Presiding Judge)

(1) Article 8 (Prohibition of Discriminatory Treatment) (1) An employer shall not discriminate against a fixed-term worker in comparison with a worker who has entered into an employment contract without a fixed period of time engaged in the same or similar kind of work at the relevant business or workplace on the ground that

2) An employer under Article 6 (Equal Treatment) shall neither discriminate against workers on the basis of gender, nor discriminate against workers on the ground of nationality, religion, or social status.