[1] The meaning of "worker of the same kind" subject to collective agreement under Article 37 of the Trade Union Act

[2] The case affirming the judgment of the court below that security guards cannot be deemed as workers of the same kind as production workers in applying the collective agreement

[1] The term "worker of the same kind to which the collective agreement is applied under Article 37 of the Trade Union Act refers to a person who is expected to be applied under the provisions of the collective agreement in question.

[2] The case affirming the judgment of the court below which held that security guards cannot be deemed as workers of the same kind as those to which the company collective agreement applies since they are engaged in surveillance and intermittent work, and they cannot be seen as equal or similar to those of production workers subject to the collective agreement.

[1] Article 37 of the Trade Union Act / [2] Article 37 of the Trade Union Act

[1] Supreme Court Decision 92Nu13189 delivered on December 22, 1992 (Gong1993Sang, 625)

Plaintiff (Attorney Hwang Sung-sung et al., Counsel for plaintiff-appellant)

Korea APPS Co., Ltd. (Attorney Kim Hyeong-sik, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 95Na267 delivered on July 25, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The same worker who is subject to collective agreement under Article 37 of the Trade Union Act refers to a person who is expected to be subject to the agreement under the provisions of the collective agreement in question (see Supreme Court Decision 86Meu2507, Apr. 28, 1987).

The court below held that the plaintiff cannot be deemed as a production worker subject to the collective agreement of this case as he is engaged in surveillance and intermittent work and that the contents and form of the work cannot be the same as or similar to that of the worker to whom the collective agreement of the defendant company applies. In addition, considering the records, the court below acknowledged the fact that the employees of departments, such as general affairs department, management department, planning office, and business department, etc., of the defendant company, are not qualified as union members, and they are clearly applied to the company and partnership (i.e., union members), and determined that the scope of application of the collective agreement of this case is not specified, and that the contents of the collective agreement of this case cannot be deemed as applicable to all types of work including security guards, and there is no error in the misapprehension of legal principles as to workers of the same kind under Article 37 of the Trade Union Act or in the misapprehension of facts against the rules of evidence.

In addition, the court below did not have any evidence that the defendant company applied the above wage agreement to the general affairs department, management department, planning department, work division employees (excluding security guards including the plaintiff and the engine boiler workers), and paid increased wages accordingly. However, according to the evidences, the defendant company has separately set and implemented the wage increase rate in April 1 of each year in consideration of the production worker's wage increase rate and the personnel management department for each employee, and the fact that the security guards paid increased wages with the same rate as that of the production worker mutually in 192 in order to boost the morale of the security guards and resolve their complaints. However, the court below did not find that the defendant company retroactively recognized the plaintiff as the recipient of the above collective agreement or wage agreement, and it did not err in the misapprehension of the facts that the defendant paid overtime pay for 3 days from September 12, 1990 to October 14 of the same month, 199, and it did not err in the misapprehension of the facts that the defendant did not have any obligation to pay wages to the plaintiff for the same day.

All arguments are without merit.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)