As shown in the attached list of plaintiffs in the court of the first instance (Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

UPE Co., Ltd. (Law Firm Cheongamam, Attorneys Don-kin, Counsel for defendant-appellant)

June 9, 2015

Daejeon District Court Decision 2012Gahap3275 Decided October 18, 2013

1. The judgment of the court of first instance is modified as follows.

A. The Defendant shall pay the remainder of the Plaintiffs, excluding Plaintiff 35 and Plaintiff 47, the amount calculated by applying the “total sum” of the “Unpaid Monthly Allowances Table” in the attached Table 2 of the trial of the lower court, and the amount calculated by applying the rate of 6% per annum from January 26, 2013 to October 15, 2015, and 20% per annum from the next day to the date of full payment.

B. Each claim of Plaintiffs 35 and 47 and the remaining claims of Plaintiffs are dismissed, respectively.

2. 2/5 of the litigation costs are assessed against the plaintiffs, and the remainder is assessed against the defendant.

3. The above paragraph 1(a) may be provisionally executed.

The defendant shall pay to the plaintiffs the amount of money stated in the "amount claimed by the plaintiff" in the "amount claimed by the plaintiff" attached to the attached Form 1 of the trial court (hereinafter referred to as the "attached Form") and each of the money stated in the "amount of the unpaid monthly allowance" as of January 26, 2012, and with respect to each of the money stated in the "amount of the unpaid late payment" as of July 27, 2012, and with respect to each of the money stated in the "amount of the unpaid late payment" as of December 10, 2014 from July 27, 2012 to December 10, 2014, the amount of money calculated at the rate of 6% per annum and 20% per annum from the next day to the date of complete payment (the plaintiff has amended the purport of the claim as above when it comes to the trial).

1. Basic facts

The reasoning for this Court’s explanation is that the reasoning for the judgment of the court of first instance is the same as that for the reasons for the judgment of the court of first instance, except for the dismissal or addition of the following parts. Therefore, this part is cited by the main text of Article 420

A. From 17th to 8th and 9th of the first instance judgment, “The appeal court is pending in the appellate court as Seoul High Court No. 2013Nu12685,” “Seoul High Court (No. 2013Nu12685) dismissed the appeal by the defendant company on October 24, 2013, and the defendant company filed an appeal (Supreme Court Decision 2013Du24426, Supreme Court Decision 201) but was dismissed,” and “The appeal is pending in the appellate court as of 2013Na599, the Daejeon High Court (No. 2013Na599)” in the same 20th and 21th of the same 20th 20.

B. The following parts are added between 15, 18 and 19 of the judgment of the first instance.

(i) The Defendant Company completed a disciplinary action against 126 persons to be disciplined (three persons in special service, two persons in writing warning, 101, hereinafter “third disciplinary action”) on November 3, 201 through the same disciplinary procedure as the first and second disciplinary action, and completed a disciplinary action against 2 persons to be disciplined (hereinafter “fourth disciplinary action”) on November 4, 201.

C. The following parts are added between the first instance judgment Nos. 18, 2 and 3.

(j) Some of the plaintiffs' union employees who were subject to the disposition of the instant disciplinary action, such as dismissal or suspension of attendance, filed a lawsuit seeking payment of the amount equivalent to 150% of the average wage during the period of the instant disciplinary action, on the premise that the instant disciplinary action is null and void. On September 26, 2014, the instant court rendered a judgment to accept part of the claim for the said amount on the premise that the defects are null and void due to significant and apparent defects in the procedure and continued to exist under the Daejeon High Court 2014Na3700.

(k) Some of the plaintiffs' union workers claimed payment of wages for the above period on the ground that the lock-out was unlawful, the Daejeon District Court Branch of the Daejeon District Court 201Gahap3919, but the above court dismissed the plaintiffs' claim. Accordingly, the plaintiffs' appeal was filed, and the Daejeon High Court 201Na6378 (No. 2012Na6378) started on the ground that the lock-out for the Youngdong Factory is likely to occupy the union members of the plaintiffs' union. In the case of Asan Factory, the lock-out for the Youngdong Factory was commenced on the ground that the lock-out for the Youngdong Factory would occupy the union members of the plaintiffs. After July 12, 200, the maintenance of the lock-out by the defendant company after the fact that the plaintiffs' union members expressed their intent to return to work two-lanes is an aggressive lock-out for the purpose of undermining the union's industrial action and cannot be justified on the ground that it constitutes an aggressive lock-out for the purpose of weakening the union members.

D. On No. 18 of the judgment of the court of first instance, “Evidence 59, 61, 63, and 64 of A” shall be added to the third sentence.

2. Determination as to the claim for the unpaid monthly leave allowance

A. Summary of the plaintiffs' assertion

1) The Defendant’s illegal lock-out period (21 days in the case of an Asan Factory, 56 days in the case of a Youngdong Factory) must be included respectively in the number of contractual working days and the number of working days in calculating the attendance rate.

2) The period of childcare leave must be excluded from the contractual working days.

3) Since the period of full-time employed by a person with full-time disability should be excluded from the number of contractual working days, or there is a practice on the occurrence of annual leave to a full-time employed person, it shall be deemed that he worked at work.

4) Since the Defendant’s dismissal and suspension of attendance are invalid, the above period cannot be deemed absence from work.

5) The period of maternity leave and sick leave shall not be considered as absence from work 1).

(b) Arrangement of relevant regulations and standards for payment of monthly paid leave;

This Court's reasoning is the same as that of the judgment of the court of first instance (Article 2-2(b) and (3). Thus, this Court's reasoning is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

C. Determination

1) As to whether the lock-out period is included in the contractual working days

A) Relevant legal principles

Even in cases where wages paid to a worker due to an unfair dismissal are annual paid leave allowances, if the relevant worker satisfies the requirements of Article 60(1) of the Labor Standards Act by taking into account the annual fixed working days and the number of working days, the annual paid leave allowance shall be paid on the premise that the annual paid leave is granted, and in calculating the annual fixed working days and the number of working days, it shall not be considered disadvantageous to the relevant worker when calculating the annual fixed working days and the number of working days. Therefore, it is reasonable to deem that the period is all included in the annual fixed working days and the number of working days. Even if the period of unfair dismissal accounts for all the total number of working days (see, e.g., Supreme Court Decision 2011Da9519, Mar. 13, 2014).

B) Determination

In light of the above legal principles, it is reasonable to view that the period is included in both the number of contractual working days and the number of contractual working days per year as the worker’s illegal lock-out can not be considered disadvantageous to the worker due to the worker’s illegal lock-out, and thus, it is reasonable to deem that the period is included in all the number of contractual working days and the number of contractual working days per year (if the illegal lock-out is excluded from the number of contractual working days, it results in the unfair result in substantial deprivation of the worker’s right to claim annual leave allowances,

However, the lawful lock-out period (from May 18, 201 to July 11, 201) is the “legal industrial action period” as seen earlier, and it is reasonable to exclude it in calculating the number of contractual working days.

C) Calculation of the number of contractual days

In this case, the fact that the Defendant Company performed a lock-out with respect to an Asan Factory from May 18, 201 to May 23, 2011 with respect to the Youngdong Factory from May 23, 2011 to August 22, 2011 is as seen earlier. The number of contractual working days of a Asan Factory except for the lock-out period of this case in 2011 is 176 days, the number of contractual working days of a Youngdong Factory is 178 days, the number of contractual working days including the lock-out period is 234 days, the number of working days from July 12, 201 to August 22, 201, and the number of working days from May 23, 201 to August 23, 2011 to August 22, 2011, or the purport of the present case’s pleading is not clear or obvious among the parties concerned.

On the other hand, a lock-out for the Youngdong factory is merely commenced on the ground that it is likely that the Youngdong factory might occupy the union members belonging to the plaintiffs' union due to the spaw of the lock-out for the Asidong factory. Even after July 12, 1997, the plaintiffs' union members expressed their intention to return to work two-lanes, maintaining the lock-out cannot be justified because it constitutes an aggressive lock-out with the purpose of weakeninging the plaintiffs' union union's ability actively beyond the defensive purpose for industrial action against the plaintiffs' union union union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union's trade union.

2) As to whether the childcare leave period is included in the fixed working days

In a case where an employee does not actually provide labor after having worked for a legitimate industrial action or a child care leave under the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter “Equal Employment Opportunity Act”), an industrial action, etc. is a legitimate exercise of rights by the workers guaranteed by the Constitution or Acts and subordinate statutes, and an employee does not have the duty of labor due to the suspension of labor relations for a period, such as an industrial action, etc., and is legally prohibited to treat the workers for industrial action, etc. (Articles 3, 4, subparagraph 5 of Article 81, Article 19(3) of the Trade Union and Labor Relations Adjustment Act, and Article 19(3) of the Equal Employment Opportunity Act), even if the employee did not provide labor for the period, such as an industrial action, which was included in the original annual fixed working days, for which the number of days during which the employee had worked for the pertinent period, and the remaining number of days during which the workers had worked for the pertinent period, including the number of days during which the workers had worked for a reasonable period of time, should not be considered in principle.

In light of the above legal principles, the period of childcare leave for Plaintiffs 217 and 252 is reasonable to be excluded from the contractual working days. Meanwhile, from August 17, 201 to December 31, 2011, Plaintiff 217 takes childcare leave from August 31, 201, and Plaintiff 252 takes childcare leave from October 18, 201 to December 31, 201, and Plaintiff 252 is not clearly disputed between the parties or can be recognized as having neglected the overall purport of oral argument in relation to the evidence of this case. Thus, each of the above periods should be excluded from the contractual working days of Plaintiffs 217 and 252.

3) As to whether the period of full-time pregnant woman's full-time disability is included in the contractual working days

Plaintiffs 31, 35, 41, 44, 136, 156, 161, 192, 198, and 268 asserted to the effect that the term of the trade union transfer should be excluded from the number of contractual working days, thereby calculating the number of contractual working days of each of the above plaintiffs.

However, in light of the fact that the full-time officer of a trade union maintains the basic labor-management relationship between the employer and his/her status as an employee, but is similar to the worker in a state of 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, even if the employer pays a certain amount of money to the full-time officer of the trade union according to the collective agreement, etc. (see Supreme Court Decision 2003Da4815, 4822, 4839, Sept. 2, 2003, etc.) and the fact that the reason or ground for the transition period of an unpaid full-time officer is unclear, it cannot be deemed that the transition period of an unpaid full-time officer is excluded from the fixed-time employee period under the Equal Employment Opportunity Act, and it cannot be deemed that the unpaid full-time officer is deemed that he/she has worked for the full-time employee period (in addition, there is no evidence to deem that there is a practice regarding the transition period, and even if such practice is established, it cannot be the same as the work.

4) As to whether dismissal period and work suspension period are deemed to have worked at work

According to the above review, each dismissal of the defendant company is unfair because it was made in violation of the quorum under the proviso of Article 31(3) of the collective agreement, and each suspension of work is null and void because the defect is significant and obvious in light of the problems in the disciplinary procedure or the criteria for unreasonable determination. Thus, the dismissed plaintiffs shall be deemed to have worked in the period of dismissal, and the suspended plaintiffs shall be deemed to have worked in that period.

Therefore, the following periods of dismissal and work suspension as follows, which are acknowledged based on the purport of the statement and the argument set forth in subparagraph 63, namely, Plaintiffs 80, 111, 122, 134, 144, 195, 222, 251, 267, 52, 267, 52, 7, 58, 61, 67, 78, 88, 89, 123, 139, 219, 240, 246, 27, 36, 37, 37, 49, 51, 72, 94, 104, 107, 257, 219, 240, 243, 240, 1636, 247, 257, 219, 257, 2017

5) As to whether the period of maternity leave and sick period are deemed to have worked during the period of work

A) Article 60(5) of the Labor Standards Act provides that “The period during which an employee suspends work due to an injury or disease on duty” and “the period during which a female in pregnancy is in pregnancy due to a leave under the provisions of Article 74(1) through (3)” shall be deemed to have worked. Article 59(8) of the Defendant Company’s collective agreement provides that the period and period of suspension of work due to an injury or disease on duty, before and after childbirth, the period and period of suspension of work due to an injury or disease on duty, leave of absence, light or paid leave shall be deemed to have worked.

B) In the instant case, Plaintiff 217 used the leave before and after childbirth from May 19, 201 to August 16, 2011, and from July 20, 201 to October 17, 201, Plaintiff 252 used the leave before and after childbirth. Since there is no clear dispute between the parties or can be recognized that the whole purport of arguments in the present case is added to the evidence relationship, the above period of leave before and after childbirth should be deemed to have been in attendance. However, in principle, in light of the Labor Standards Act and the purport and language of the collective agreement of the Defendant Company and the Labor Standards Act, the period of absence is deemed to have been in attendance at work only in the case where Byung paid Byung due to the “occupational injury or disease”. In this case, there is no evidence as to the fact that the Plaintiffs sent sick leave due to “occupational injury or disease”, and thus, the assertion that the period of absence should also be accepted.

D. Calculation of the annual monthly allowance payable to each plaintiff

(i) unpaid annual allowances;

As of January 1 through December 31 of each year, Defendant Company 2, 3, 1, 2, 2, 2, 3, 4, 2, 2, 15, 18, 19, 39, 42, and 43 (Provided, That the number of Plaintiffs 43, 2, 46, 48, 56, 14, 2, 14, 16, 2, 14, 2, 14, 16, 2, 46, 14, 2, 15, 2, 2, 14, 2, 3, 2, 15, 2, 2, 3, 14, 2, 2, 3, 15, 2, 2, 3, 4, 5, 1, 2, 3, 5, 1, 2, 4, 2, 5, 1.

Further to the respective descriptions and arguments stated in Gap evidence Nos. 59, 61, 63, 64, and 65, the calculation of "number of contractual working days," "number of days of attendance," and "number of days of attendance" by the plaintiff is made as stated in the corresponding column of the attached Table 2.

Meanwhile, it is reasonable to grant an employee a monthly paid leave calculated by multiplying the number of days of annual paid leave calculated by dividing the number of days of annual paid leave by the ratio of the “number of days other than the number of days of industrial action, etc. from the number of annual fixed working days” to the “number of days of annual paid leave.” According to the written evidence No. 1 and the purport of the whole pleadings, it can be recognized that the annual paid leave allowance calculation formula under a collective agreement is “ordinary day pay 】 unused annual paid leave, annual paid leave days x 1.5.” Accordingly, in calculating the “number of days of annual paid leave under each Labor Standards Act” and “number of days of annual paid leave under a collective agreement” by the Plaintiff, the number of days of annual paid leave as stated in each corresponding column of each corresponding column of “group paid annual paid allowance table” in attached Form 2, excluding the number of days of annual paid by the Defendant Company, and “amount of unpaid annual paid allowance under the collective agreement” and “amount of unpaid monthly paid allowance” are as stated in the corresponding column of “amount of monthly paid allowance” in attached Table 2.

(ii) unpaid monthly allowances;

As seen earlier, a lock-out from July 12, 201 to August 22, 2011 is illegal in the case of an Asan Factory, and from May 23, 2011 to August 22, 2011 in the case of an Youngdong Factory, each individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual day, and two days should be added. In addition, as seen earlier, each individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual individual.

Meanwhile, Plaintiff 31 claims that the monthly number of days of the said month is 7 days (5, 6, 7, 8, 10, 11, and 12). However, Plaintiff 31’s assertion that the monthly number of days of the said month is 7 days (in cases where Plaintiff 31’s remaining period of time is excluded from the number of working days as the full-time period, but the monthly period of time is not accepted from May 23, 201 to August 21, 201 (illegal lock-out period) and from October 19 to December 31, 2011 (illegal dismissal period) it is reasonable to deem that the monthly number of days of attendance is 4 days (Article 59(1) of the Organization Convention (Evidence 1). According to Article 59(1) of the Organization Convention, Plaintiff 31’s assertion is not accepted from the above reasoning.

In such circumstances, the monthly number of days for each plaintiff calculated on the basis of the facts found to show the purport of Gap evidence No. 14 and the entire purport of the pleadings are as stated in the annexed Table 2 "Monthly Monthly Allowances Table". Here, the unpaid monthly number of days for each plaintiff after deducting the number of days for the monthly payment of the defendant company is as stated in the annexed Table 2 "amount for the unpaid monthly amount" as stated in the above attached Table. (The fact that the calculation formula of monthly leave allowances under the collective agreement is "ordinary daily rate 】 the unused annual rate x the number of days for the unused, the number of days for the monthly leave x 1.5."

3) Sub-decisions

A plaintiff whose attendance rate is not less than 90% claims the "annual allowance payable under the collective agreement," and the plaintiffs whose attendance rate is not less than 80% but less than 90% claim the unpaid annual allowance under the Framework Act on Labor (However, the plaintiffs 79, 142, 158, 180, 208, 209, 220, 220, 237, 239, 240, and 246 claim the unpaid annual allowance under the Labor Standards Act even though the attendance rate is not less than 90%). The amount of the unpaid annual allowance for each plaintiff according to the plaintiffs' request is the same as the "total amount of the unpaid annual allowance table" in attached Form 2.

E. Determination on the occurrence time of the obligation to pay annual and monthly leave allowances

1) Summary of the parties’ assertion

In accordance with the collective agreement, the defendant company filed a claim for late January 26, 2012 with respect to the company's duty to pay the company's allowance for the year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year's year

2) Determination

Inasmuch as a system is to provide an opportunity for relaxation through the recovery of the path through long-term work, realization of annual leave during which the annual leave continues to exist is not permissible against Article 60 of the Labor Standards Act unless the annual leave exceeds 25 days (see Supreme Court Decision 94Da1853, Jun. 29, 195, etc.). If an employer pays allowances or compensations in lieu of the annual leave days during which the employee’s right to leave exists and redeems them, it would result in de facto deprivation of the employee’s right to leave. In full view of these legal principles, comprehensively considering the language and text of Article 59 of the collective agreement of the Defendant company, the annual leave under the former Labor Standards Act, and the purport of the provisions of the collective agreement of the Defendant company’s collective agreement, which provides for more days than the current Labor Standards Act, the obligation to pay allowances to the Defendant company for the unused portion during the annual leave from 201 to 20% of the annual leave from 25th day of January 25, 2013.

3. Determination as to the claim for non-existence of a dispute

This Court's reasoning is the same as that of the judgment of the court of first instance, and thus, citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Conclusion

Therefore, each claim of plaintiffs other than plaintiffs 35 and 47 is accepted within the scope of the above recognition, and each claim of plaintiffs 35 and 47 is dismissed as it is without merit. The claims of plaintiffs 35 and 47 are dismissed as it is without merit. It is modified as ordered by the judgment of the first instance according to the amendment of the purport of the claim in the trial of the plaintiffs.

[Attachment Omission]

Judges Lee Jae-won (Presiding Judge)

(1) The Plaintiff asserted that the part indicated at the first instance trial as unpaid, the part on August 29, 201, the part on the work on August 23, 201, the part on September 6, 2011, and the part on October 6, 2011, were not absent from work, but the said claim was withdrawn in the appellate trial (the claim and the ground for amendment as of December 10, 201).