[1] Meaning of "worker of the same kind" under Article 35 of the Labor Union and Labor Relations Adjustment Act, and in a case where all workers in the workplace join the union as a member of the union and are entitled to the application of a collective agreement without distinguishing the types of occupation under the provisions of the collective agreement, whether the management worker can also be seen as "worker of the same kind" along with the technical worker (affirmative)

[2] The case holding that since there was an implied agreement between the company and the trade union to limit the scope of application of a collective agreement to technical workers, the management worker cannot be viewed as a "worker of the same kind" under Article 35 of the Trade Union and Labor Relations Adjustment Act

[1] The term "worker of the same kind who is subject to the collective agreement pursuant to Article 35 of the Labor Union and Labor Relations Adjustment Act" refers to a person who is expected to be subject to the agreement pursuant to the provisions of the collective agreement in question, and if all workers in the workplace are allowed to join the collective agreement as a union member without distinguishing the job category, such as functional and managerial jobs, unless they are the employer under the provisions of the collective agreement, the worker in charge of management shall also be a worker of the same kind as the worker in charge of the same job.

[2] The case holding that, even if the collective agreement did not explicitly stipulate the scope of application of the agreement to the employees in technical service, it is reasonable to view that there was an implied agreement between the company and the trade union to limit the scope of application of the collective agreement to the employees in technical service, in light of all the circumstances such as the fact that the trade union excluded the employees in technical service and formed and operated only the employees in technical service since the trade union agreed to be included in the "persons acting for the employees in technical service" in the company and the employees in the same class under Article 35 of the Labor Union and Labor Relations Adjustment Act.

[1] Article 35 of the Labor Union and Labor Relations Adjustment Act / [2] Article 35 of the Labor Relations Adjustment Act

[1] Supreme Court Decision 2001Da63599 decided Feb. 12, 2004 (Gong2004Sang, 441)

Gangwon-si and 204 others (Law Firm Young-soo, Attorneys Kim Byung-ju et al., Counsel for the plaintiff-appellant)

Agro Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

July 2, 2004

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs the money stated in the separate sheet (2) "amount of claim" and each of the amounts calculated by 5% per annum from January 1, 2003 to the delivery date of the correction of claim and cause of claim of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. The defendant company is a corporation with the purpose of research, design, development, manufacture, import, sale, services, and export of products related to heating, cooling, and mutual assistance, its components, and the plaintiffs are employees working or retired in the defendant company as management employees belonging to the defendant company.

B. A trade union belonging to the defendant company (hereinafter referred to as the "the defendant's trade union") was organized on April 4, 1988. The employees of the defendant company consisting of approximately 1,200 technical workers in charge of production and management and business affairs in the factory, and all of the members of the defendant's trade union consisting of 891 members as of November 1, 2001 as technical workers. The defendant's trade union formed a collective agreement through collective bargaining with the defendant company every year.

C. Article 7 (Composition) of the Rules of the defendant's Trade Union provides that "the union shall be a member of the union who works in glocks and shall be an approved member of the union." Article 3 (Scope of Application of the Convention) of the collective agreement provides that "this Convention shall apply to the union and the company and the union." Article 6 (Scope of Union Members) of the same agreement provides that "the company may be a member of the union except those who act for the employer under Article 5 of the Trade Union and Labor Relations Adjustment Act (hereinafter "Trade Union Act." However, the person who acts for the employer shall be a person who is decided by the company in accordance with generally accepted rules and practices and shall be a person who is decided by the union after consultation with the company." However, except those who act for the employer, the defendant company and the defendant's union shall be a person who works in the management position above class 5 of May 31, 198, who actually agreed to be included in the "person who acts for the employer" as stipulated in the above proviso.

D. The personnel rules of the Defendant Company distinguish employees from their technical and managerial functions, and establish and operate separate rules for benefits respectively. The employees of the technical and skilled workers set an hourly wage for each worker and apply en bloc according to the wage agreement between the Defendant Company and the Defendant’s labor union, which is the monthly wage system that provides the amount calculated by multiplying the actual number of working hours by the number of working hours. The employees of the management and skilled workers separately adjusted the rate of increase in wages in accordance with the wage agreement, which is the monthly wage system that provides a large number of working days or a certain amount of wage within the scope of working hours under the rules of employment, regardless of the deficit. In 202, the technical and skilled workers were 8% increase in basic pay, production allowances, 50,000 won for each worker, 1.5% increase in wages due to promotion, 2.0% in wages due to promotion, and 20-4% in the case of Sundays working hours through the collective agreement on May 21, 2002, and 20.

E. Defendant Company did not pay an additional allowance after September 1, 1999 under the Defendant’s Labor and Collective Agreement and an increase in wages by 8% of the basic salary year 2002 to the Plaintiffs, who are management workers.

[Reasons for Recognition: Facts without dispute, Gap evidence 1 through 7 (including paper numbers), Eul evidence 1 through 15 (including paper numbers), the purport of the whole pleadings]

2. Judgment as to the main claim

The plaintiffs, who are management employees who did not join the defendant's labor union under Article 35 (General Binding Force) of the Trade Union Act, also constitute "workers of the same kind, such as union members or members qualified for union members," and thus, collective agreements concluded between the defendant company and the defendant's labor union, which apply to not less than half of the same kind of workers ordinarily employed in a single business or workplace, should also be applied to the plaintiffs, and payment of the amount stated in the attached Table (2) of the collective agreement, which is the sum of the "amount of wage difference" in the sum of the "amount of wage difference" in the basic collective agreement from September 1, 1999 to December 31, 202 and the "amount of claim" in the attached Table (2) of the collective agreement from May 21, 2002, due to the increase of 8% of wages in the year of 202.

The term "worker of the same kind" subject to collective agreement under the provisions of Article 35 of the Trade Union Act refers to a person who is expected to be subject to the collective agreement under the provisions of the collective agreement in question. Thus, unless the collective agreement provides that all workers in the workplace can join the union members and be subject to the collective agreement without distinguishing category of occupation such as functional and managerial workers, the management worker also falls under the same kind of worker as provided in Article 35 of the Trade Union Act with the management worker. However, even though the effect of the collective agreement is to be included in the "person who acts for the employer" as the management worker in the defendant company and the management worker, the management worker is excluded from the management worker and the management worker is merely composed and operated with only functional and managerial workers. Considering the fact that the collective agreement has different system, working conditions, and contents of work between the two workers and the management worker, and the management worker has applied the rules of employment separately to the management worker, the plaintiffs' claim for the restriction of the function of the collective agreement in relation to the defendant company's management worker should not be justified.

3. Judgment on the conjunctive claim

Of the plaintiffs, the plaintiffs Kang Gyeong-sung et al. and 122 submitted an application for membership to the defendant's union in accordance with the attached list (2). Since the above plaintiffs should be treated as the members of the defendant's union from the date of the submission of the application for membership to the union, they claim that the payment of the money stated in the attached list (2) of the additional allowance and wage difference after the date of membership to the union is sought in accordance with the above collective agreement.

According to each statement of evidence Nos. 8 through 23 (including a branch number), although the plaintiff Gangseo-si and 122 others want to join the defendant's union on the date of joining the union, the defendant's union refused to do so. On February 4, 2002, the management worker of 105 union formed a general assembly of labor union and submitted a report on establishment of the union to the Gwangju Metropolitan City Mine Office on March 5, 200, although the defendant's office made a provisional disposition on the ground that it is multiple labor union under Article 5 (1) of the Addenda of the Trade Union Act, the defendant's provisional disposition on March 24, 2003 to temporarily set the membership status of union members as stated in the separate list No. 202Kahap540 on the ground that each of the plaintiffs joined the defendant's union, even if each of the above plaintiffs was admitted, the collective agreement of the plaintiffs, a management worker of the defendant company, which concluded the scope of application as seen above, cannot be immediately justified.

4. Conclusion

Therefore, all of the plaintiffs' primary and conjunctive claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Jeong-jin (Presiding Judge)