Ajin Transport Co., Ltd and two others (Law Firm Barun et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Public Transport and Services Workers' Union (Attorney Kang-ho, Counsel for defendant-appellant)

November 22, 2017

Seoul Administrative Court Decision 2016Guhap59218 decided December 22, 2016

1. Revocation of the first instance judgment.

2. On February 16, 2016, the Central Labor Relations Commission revoked a decision on retrial made between Plaintiff Ajin Transport Co., Ltd and the Intervenor joining the Defendant on February 16, 2015 regarding the application for reexamination of unfair labor practices.

3. Of the total litigation cost, the part resulting from the participation is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance, and therefore, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the decision on the retrial of this case is lawful

A. Summary of the parties' assertion

1) Summary of the plaintiffs' assertion

An employer may pay wages by granting a time-off limit exceeding the prescribed working hours to a time-off worker, and it is difficult to view that the level of wages paid by the Plaintiff Company to Plaintiff 3 is excessive to the extent that it exceeds the reasonable scope acceptable by social norms compared to the level of wages paid to the general workers. Therefore, the payment of wages to Plaintiff 3 by the Plaintiff Company cannot be deemed to constitute unfair labor practices. Accordingly, the review decision of this case,

2) Summary of the assertion by the Defendant and the Intervenor

A) The Plaintiff Company’s payment of wages to Plaintiff 3 constitutes an act of paying wages to full-time union employees prohibited by Article 24(2) of the Trade Union Act.

B) Even if the Plaintiff Company’s above payment of wages constitutes an act of paying wages to the Plaintiff Company for the time-off workers under Article 24(4) of the Trade Union Act, the Plaintiff Company paid the Plaintiff Company a remarkably excessive amount of wages to the Plaintiff 3, which constitutes an unfair labor practice under Article 81 subparag. 4 of the Trade Union Act.

C) In addition, the Plaintiff Company granted only the Plaintiff’s branch the limit of working hours to the Plaintiff Company, and did not grant it to the Intervenor, thereby controlling and putting in place the organization or operation of a trade union in violation of the employer’s neutrality obligations, which constitutes unfair labor practices under Article 81 subparag. 4 of the Trade Union

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance 2-C except as follows. Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

In the 7th sentence of the judgment of the court of first instance, the 6th to 8th sentence shall be followed as follows.

6) From September 2014 to August 2015, which was appointed as the head of the Plaintiff’s branch and was paid by the Plaintiff Company from September 2014 to August 2015 (hereinafter “instant period”) (hereinafter “instant period”), the total sum of wages and bonuses is KRW 49,584,369 (the salary of KRW 37,404,369 + the bonus of KRW 12,180,000). The monthly average amount is KRW 4,132,030 (=49,584,369 KRW 369, KRW 12,000).

7) Where Plaintiff 3 is not a person exempt from working hours, the bonus for the Plaintiff Company’s salary class 4 on the basis of the Plaintiff Company’s salary system constitutes KRW 45,845,311 (the sum of the average salary and bonus for each person for each class worker at class 4 during the instant period divided into the number of persons who worked in the pertinent month for the total monthly salary class 4, which is recognized by the statement in Category A6, and calculated the average salary for each person per month during the instant period after adding all the average salary for each person per month during the instant period to the average salary for each person during the instant period, 36,143,151. The bonus for the class 4 workers at class recognized by the statement in Category A, as above, is also KRW 9,702,160, the aggregate of the monthly salary and bonus for each class worker at class 4 for each person at class 4 during the instant period (i.e., the sum of the average salary for each person at class 16, KRW 3425,4251,4545).

Plaintiff 3, 404, 369, 943, 6539, 723, 414, 391, 615 bonus of 12,180,009, 743, 969, 743, 096, 43, 096, the sum of 49,584, 369, 49, 749, 46, 5104, 49, 510, 134, 7111

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 7, 16, 17, 20 through 25, Eul evidence Nos. 1-1, 2 through 5, and the purport of the whole pleadings

D. Determination

1) Note 3) Relevant legal principles

Although the act of supporting wages to workers who are not designated as a time-off worker is itself an unfair labor practice, the act of paying wages to a time-off worker is in principle not to engage in unfair labor practice unless there are special circumstances.

However, in light of the purpose of the labor-management system that allows a time-off worker to engage in labor union activities without economic losses after being exempted from working hours for which the time-off worker is obligated to provide labor, wages paid to a time-off worker shall correspond to the working hours for which the duty to provide labor is exempted. Therefore, even if it is based on an agreement between labor and management, such as a collective agreement, the employer’s act of paying excessive wages to a time-off worker without justifiable grounds is beyond the scope permitted under the proviso of Article 81 subparag. 4 of the Trade Union Act, and thus, it can be an unfair labor act

In this context, whether payment of wages to a time-off worker is excessive and thus constitutes unfair labor practices should be determined by examining the circumstances such as whether the level of wages or the criteria for payment of wages received by a time-off worker to a time-off worker is excessive to the extent that it exceeds the reasonable scope acceptable by social norms in light of the ordinary working hours and working conditions of the same or similar class, class, or salary grade that the worker is engaged in the same or similar kind of work at the workplace concerned, if

Meanwhile, in full view of the forms and contents of the above-mentioned provisions related to the Trade Union Act, the legislative purpose thereof, and characteristics distinct from the type of other unfair labor practices, the intent to provide wages to a full-time employee or to provide operating expenses of a trade union can be recognized as per se, even though it is recognized that the intent to provide wages or provide operating expenses is not exceptionally permissible under the proviso of Article 81 subparag. 4 of the Trade Union Act, and does not require the affirmative, specific intent, or motive of the control, intervention, or entry. The same applies to cases where excessive payment to a full-time employee is assessed as an act of providing wages to a full-time employee or an act of subsidizing operating expenses of

2) Whether the act of paying wages to the pre-employed is illegal

Since Plaintiff 3 was designated as an exemption from working hours under an agreement between the Plaintiff’s branch and the Plaintiff’s company, the payment of wages to Plaintiff 3 cannot be viewed as the payment of wages to the full-time officer of a trade union violating Article 24(2) of the Trade Union Act.

3) Whether the payment of benefits exceeds the permissible scope under the proviso of Article 81 subparag. 4 of the Trade Union Act

In full view of the following circumstances, the facts acknowledged earlier, the evidence adopted earlier, the statements in Gap's evidence Nos. 4 through 6 (including branch numbers), and the overall purport of arguments, it is difficult to view that the plaintiff company paid excessive benefits to the extent that the amount exceeded the reasonable scope acceptable by social norms compared to the wage level of the worker at class 4 of the worker at class 4 employed unless the plaintiff company was designated as the time-off worker, and there is no other evidence to acknowledge otherwise.

A) In light of the fact that there occurs an increase in benefits based on the rate of increase in benefits each year, and there may be differences in the factors that may affect the level of benefits, such as workers’ experience, budget, benefits policies, payment standards, payment items, etc., depending on the period, it is difficult to determine whether to pay benefits to a time-off worker is excessive. If a time-off worker was not designated as a time-off worker for the same period as the time-off worker was paid, it is reasonable to view that the amount received if the time-off worker was not designated as a time-off worker, i.e., the level of ordinary workers’ benefits of the same class and salary class engaged in the same kind of work as the time-off worker did not have been designated as the time-off worker, the most effective and appropriate comparison is reasonable. In addition, since the issue of whether to pay benefits to a time-off worker is excessive depends on the nature of the work, and therefore, it is inappropriate to consider individual benefits that constitute the total amount of bonus and the total amount of the time-off worker.

Therefore, in this case, in order to determine whether the benefits the Plaintiff 3 received as a time-off worker are excessive, the total amount of the total benefits and bonuses that the Plaintiff 3 received during the instant period, as a time-off worker, should be compared to the total amount of the total benefits and bonuses that the Plaintiff 3 received during the said period.

B) During the instant period, the sum of wages and bonuses paid by Plaintiff 3 from the Plaintiff Company was paid to KRW 49,584,369, a total of KRW 4,132,030 per month, and average of KRW 4,132,030 per month. During the same period, there is a difference between the average of the total benefits and bonuses paid by the Plaintiff Company 4,845,311, the average monthly amount, the average monthly amount of KRW 3,820,442, and the aggregate of the above benefits and bonuses paid by Plaintiff 3, the average of KRW 311,588 per month.

However, it is difficult to view that the wage level paid by the Plaintiff Company to Plaintiff 3, if Plaintiff 3 had not been designated as working hours-exempt workers and was paid higher benefits than the wage level received by Plaintiff 3 during the instant period, and the difference between Plaintiff 4 and Plaintiff 3’s wage level is also limited to KRW 117,859 (Monthly 9,821) per annum, or KRW 449,658 (monthly 37,471) per annum, and there may arise a considerable difference in benefits between Plaintiff 3 and Plaintiff 458 (monthly 37,471) due to overtime work and holiday work.

C) The Defendant and the Intervenor asserted to the effect that the Plaintiff Company granted Plaintiff 3 the duty to provide labor for more than 2,00 hours a year exceeding 2,080 hours per annum under Article 2(1)7 of the Labor Standards Act by itself constitutes unfair labor practices. However, the purport of Article 24(4) of the Trade Union Act ensuring that the Plaintiff may engage in the activities subject to the exemption of working hours without loss of wages is to ensure that the activities of the trade union are not reduced ultimately. Therefore, if the working hours are limited to the prescribed working hours under the Labor Standards Act, the wage loss may be inevitable compared to those of ordinary workers, and thus, the exempted working hours cannot be limited to the prescribed working hours. The Plaintiff Company granted Plaintiff 3 the limit on the duty to provide labor for more than the prescribed working hours, which would not immediately constitute unfair labor practices.

In addition, according to the statement No. 4-8 of the National Assembly's Environmental Labor Relations Commission, the Ministry of Employment and Labor responded to the purport that, in the process of the National Assembly's pending review on the system of exemption from working hours, the amount of wages for those who are exempted from working hours should not be paid by multiplying the amount of wages for those who are exempted from working hours by the hour, but should not be given by the normal level of wages that can normally be paid when they worked at the workplace concerned. The limit of exemption from working hours is merely setting the time limit for those who are exempted from working hours to maintain and manage a trade union without loss of wages. If there is no special agreement between the labor and management, it cannot be deemed that the employer's prior and follow-up control on the actual hours and details of exemption from working hours cannot be seen as the premise for the payment of wages to those who are exempted from working hours, the limit of exemption from working hours imposed to those who are exempted from working hours pursuant to an agreement between the labor and management does not exceed the ordinary limit of exemption from working hours for those who are exempted from working hours, not exceeding the ordinary limit of wages for those of the Plaintiff 30.

D) Since there is no provision on the duty of the employer to submit the details of use of the time-off hours of the person exempted from working hours, the employer’s duty to confirm them, the burden of proving whether the time-off hours are suitable for the time-off hours, etc., the employer may autonomously determine working hours between the employer and the employer, taking into account the purport of the time-off system, efficient management, characteristics of management duties by labor and management, efficiency and usability of management, etc., and it is difficult to see that the company has the duty to notify the company of the details of use of time-off hours and the details of duties, etc.

The Plaintiff Company and the Plaintiff’s branch did not have any provision on the employer’s prior and ex post facto control over the details of use of working hours exempted from working hours, and there is no evidence to deem that there exists any agreement between the Plaintiff Company and the Plaintiff’s branch on this matter. Therefore, only that the Plaintiff Company did not verify the actual working hours and details of use during the time-off period of Plaintiff 3’s working hours, and that Plaintiff 3 did not notify the Plaintiff Company thereof, the payment of wages to Plaintiff 3 by the Plaintiff Company cannot be readily concluded as unfair labor practices.

E) The Defendant’s assertion that the Plaintiff Company paid wages to Plaintiff 4, who was exempted from work hours in the strike, on the basis of grass, or that there is no evidence to deem that Plaintiff 4 had mainly engaged in business that does not fall under work hours exemption activities, and that the Plaintiff Company directly employed Plaintiff 4 cannot be deemed as unfair labor practices even if its assertion is acknowledged.

4) Whether the allocation of the limit of working hours exemption is unlawful

Inasmuch as there is no assertion or proof by the Defendant as to the developments leading up to the allocation of the limit of time-off between the Plaintiff’s branch and the Intervenor, the mere fact that the limit of time-off has not been allocated to the intervenors does not constitute an unfair labor practice by controlling and entering the Intervenor. This part of the Defendant’s assertion is without merit.

5) Sub-committee

Therefore, the decision of the retrial of this case, which was based on the premise that the payment of the Plaintiff Company’s benefits to Plaintiff 3 is unfair labor practice, is unlawful.

3. Conclusion

Since the decision of retrial in this case is unlawful, the plaintiffs' claim seeking its revocation shall be accepted on the grounds of its reasoning. The judgment of the first instance is unfair on the grounds that it is unfair to conclude otherwise, and the decision of retrial in this case shall be revoked.

[Attachment]

Judges Lee Dong-won (Presiding Judge)

Note 1) The evidence Nos. 20 and 21 may be recognized by each description. The Plaintiffs asserted that the aforementioned payment and bonus includes the retroactive and retroactive portion from the bonus to Plaintiff 3, but it is insufficient to recognize it solely with the descriptions of the evidence Nos. 20 and 21, and there is no other evidence to deem it otherwise.

(2) The Plaintiffs asserted that the amount calculated by adding the amount calculated by adding the amount calculated by adding the amount calculated by adding the amount calculated by retroactively and retroactively to the total amount of salaries and bonuses to the amount of salaries of Plaintiff 3, but the amount calculated by adding the amount calculated by adding the amount calculated by adding the amount calculated by retroactively and retroactively to the amount of salaries to the amount of salaries and bonuses to the amount calculated by including the amount deducted from the amount of salaries and bonuses and taxes, etc. Accordingly, insofar as the amount calculated by adding the amount calculated by Plaintiff 3’s wages and bonuses to the total amount of salaries and bonuses to the amount of salaries and bonuses

Note 3) Supreme Court Decision 2014Du11137 Decided April 28, 2016