2011Kahap283 Disposition of suspension and provisional disposition of transfer order

1. ○○;

Seoul

2. Han ○○.

Seoul

Attorney Park Jong-ok, Counsel for the plaintiff-appellant

○○ Broadcasting Corporation

Seoul

Representative Director ○ Kim

Law Firm LLC, Attorney Park Jae-soo

Attorney Seo Dong-dong et al.

July 15, 201

1. On May 12, 201, the respondent shall temporarily suspend the effect of a transfer order issued to applicants on May 12, 201.

2. The enforcement officer shall publicly announce the purport of the above order in the proper manner.

3. Litigation costs shall be borne by the respondent.

The order is as set forth in the text.

1. Basic facts

According to the purport of the records and the whole examination, the following facts are substantiated.

A. The respondent is a company that operates broadcasting business and cultural service business. When employing new members, the respondent has been employed by classifying them by types of work, such as Round, reporters, TBD, and broadcasting management. In the case of TBD, EBD has maintained the practice of employing new members and allowing them to work in the field during their tenure of office by providing support for one of the fields of current culture, drama, and arts through a six-month training course.

In accordance with the above method, since the applicant ○○ entered the respondent on December 1, 1993, the applicant ○○ is an employee who has supported the field of current culture, and has produced current culture programs during this period, and is also a member of the trade union of the respondent.

B. On March 2, 2011, the respondent issued a transfer of the applicant ○○ to two copies of the current current current culture culture, respectively, on March 2, 201, when there is a vacancy in the production of the “PDbook”, which is an accusation program produced in the second part of the current culture, and on March 16, 201, the respondent issued a transfer of the applicant ○○ from the third part of the current culture, to the two copies of the current current culture.

C. On May 6, 2011, the applicant ○○○ is among inter-Korean economic cooperation through a meeting such as the team leader and responsible ID.

However, the subject of 'one year thereafter' was set as a program of 'PD pocket book' to be broadcasted on May 24, 201, and the subject of 'PD pocket book' was predicted to be low viewing rate by the Director General of the Korean Culture Bureau, and the subject of 'PD pocket book' was expressed to the purport that 'in order to refuse to comply with the direction in order to stop coverage' with the direction of suspending coverage.

D. On May 9, 201, ○○○ asserted to the Director General of the Culture Bureau on current events on the grounds that the public nature of broadcasting that ordered the suspension of coverage could be damaged, and that it is unreasonable.

As for the above direction of the Director-General of the Culture Bureau on current issues, the "Paddi Council consisting of DNAs from the present countries" passed a resolution to deliver to the Director-General of the Culture Bureau the opinion that the above direction is unfair through a meeting. On May 9, 201, the applicant Han-○ et al. delivered the above opinion to the Director-General of the Culture Bureau of current events as the representative of the Council of Eddiology on current issues.

(e) On May 12, 201, the Director General of the Culture Bureau of the respondent: around 30, the applicant is a special postmaster.

Without the explanation of the reasons, the Respondent notified that he would take personnel measures against the applicants as the applicant's position of the company, and around 19:0 of the same day after 30 minutes from that date, the Respondent issued a transfer order to the applicant ○○ as Madraa Development Group, and the applicant ○○ as Madra, Seoul Madra (hereinafter referred to as 'the instant transfer order').

F. Meanwhile, the Madrida Development Group is an organization established as a direct organization of the Respondent president for the comprehensive development and utilization of the Respondent site owned by the Respondent, and the Seoul Madrida is an organization organized as a national unit organization for the Gyeonggi-do, Incheon regional viewer service expansion, program production, program production, and business. The two organizations are both organizations that differ between the current cultural organization and its normal headquarters under the Organization Regulation of the Organization, which the applicant had worked for the existing organization.

2. The parties' assertion

A. The instant transfer order, which sent an applicant who had produced a current culture program under the jurisdiction of the current cultural state, to the competent department for the reason that the applicant asserted (1) demanded and resisted the independence and freedom of broadcasting, is null and void due to a serious procedural defect in violation of Article 21 of the personnel regulations of the respondent and Article 26 of the collective agreement and other procedures required under the good faith principle stipulating that the applicant cannot be compensated within 6 months from the time he/she was appointed to the pertinent department, which caused serious living disadvantages to the applicant and did not meet the substantive requirements.

(2) The applicants are suffering from serious mental pain, such as taking a serious impact on their self-esteem as a current cultural subject due to the instant transfer order, and do not produce the current culture program that has been continued after the entry, and it is difficult to secure effectiveness because it is anticipated that a long time would take place in the case of dispute as a lawsuit on the merits. Accordingly, the applicants seek a provisional disposition against the respondent stating the purport of the application.

B. On June 3, 2010, the respondent asserted (1) newly established the Seoul Acknowledgement in order to expand broadcasting services for viewers in the Seoul metropolitan area. In order to promote regional projects, such as strengthening of broadcasting services for viewers in the games and Incheon metropolitan areas relatively alienated, the respondent was suffering from occupational need to supplement specialized human resources, such as production ID, etc.

In addition, on May 4, 2011, the respondent was not only developing the dyma to a clear and high level of theme park, but also by discovering diverse and high-quality genetic content and creating profits, and was transferred to the affairs related to the Gaeaea Art under the jurisdiction of the management support headquarters affiliated with the management support headquarters, and was established as the directly bound organization of the president. In order to achieve the above business objectives, there was a need to supplement broadcasting professionals with planning and creativity in the course of business.

The instant transfer order against applicants was issued in accordance with the above occupational needs, and there were some disadvantages in daily life during the period of commuting to and from work, but it is difficult to view that the applicants exceeded the scope to which they should bear when compared with the above occupational needs due to the lack of wage and other working conditions.

(2) Furthermore, Article 21 of the Personnel Regulations, which provides for the prohibition of transfer within six months, applies only to the transfer of the unit of the country (the station) where the change of duties is involved, and does not apply to the transfer within the same country. As such, the instant transfer order to applicants for whom at least six months have passed since they were placed in the current culture center, does not violate the personnel regulations. Article 26 of the collective agreement applies to personnel measures accompanying the change of occupation. Article 26 of the collective agreement applies to personnel measures accompanying the change of occupation, and the instant transfer order cannot be readily determined as such, and thus does not violate the provisions

In addition, since the director general of culture bureau of the respondent had interviewed the applicants before the issuance of the transfer of this case, the procedures required by the good faith principle were observed.

(3) For the foregoing reasons, the instant transfer order is justifiable.

3. Determination

A. Legal principles on the scope and limitation of employer’s right to issue a transfer order

Transfer or transfer disposition for workers shall be the kind of work to be provided by workers.

An employer may be disadvantageously treated to workers in that it brings about changes to a place, etc., but in principle, it belongs to the authority of the employer who is the personnel management authority.

Unless there are special circumstances such as violation of the Labor Standards Act or abuse of rights, etc., it shall not be deemed null and void. Determination of whether a change of occupation, etc. constitutes an abuse of rights should be made by comprehensively taking into account the following: (a) comparison and comparison of workers’ living disadvantage due to the necessity and transfer of occupation, etc., and consultation with workers, etc.; and (b) compliance with the procedure required by the principle of good faith in the course of such transfer disposition, etc. (see Supreme Court Decision 9Du2963, Apr. 1, 200,

B. The business necessity of the instant transfer order (1) is not based on the employer’s supervision, but should be objectively determined. However, as long as it is recognized that it contributes to the rational operation of the company, such as the proper placement of labor force, enhancement of work efficiency, development of workers’ ability, enhancement of work desire, and facilitation of business operation, it is reasonable to affirm the instant transfer order.

(2) However, in light of the following circumstances recognized by the purport of the entire records and interrogation, the instant transfer order is difficult to be deemed to have been issued according to the business necessity, such as the achievement of the business objectives of the Respondent and the Ganman Regional Headquarters, as claimed by the Respondent.

( 가 ) 신청인 이○○은 ' MBC 특별기획 갠지즈 ', ' 곰팡이 3부작 ' 등, 신청인 한○○는 ' 아프리카의 눈물 ', ' 황○○ 3부작 ' 등 피신청인의 주요한 시사교양프로그램들을 제작하여 피신청인의 시사교양국에서 상당히 유능한 피디들이라는 평가를 받고 있었던 것으로 보인다 .

(B) On the other hand, the respondent is merely asserting the necessity of competent production subjects for the development, etc. of the relics and intangible contents of the Maddrida Development Group, which has been promoting the regional business of the Seoul Flag, and the respondent does not specifically explain the need to transfer the applicants as above. [The respondent is not sufficient to recognize the need to transfer the applicants only by the duties of the applicant, such as the regional festival-related duties, etc. (the applicant ○○○), 7080 Madrida Development Group (the applicant ○○○), which is alleged as the duty of the applicants in Nos. 12 and 13, and there is no other supporting materials.

C) On May 4, 201, the respondent had already completed a personnel order for the Kamdra Development Group and the Seoul Flag on May 12, 201, and separately issued the instant transfer order to the applicant. It is difficult to find out any circumstances to understand that there was an urgent need for the transfer order to each of the above departments to select only the applicants around that time and to issue the transfer order to each of the above departments.

(D) The instant transfer order was completed immediately after the conflict between the applicant and the Director General for current events during the process of selecting the subject of the program.

E) In light of the fact that the respondent is unable to assert and prove the specific criteria for the selection of applicants as subjects of a transfer order, it is questionable whether the selection of applicants is appropriate. It does not seem to have taken prior measures, such as enhancing the efficiency of the work of the Madra Development Group or the Seoul Flag before the instant transfer order, or painting the applicants in advance for the proper placement of labor force.

C. According to the above respondent's new members selection, work practices, and organization regulations prior to his occupational and living disadvantage, the applicants have been engaged in the production of current culture programs for a long time since their entry into the respondent company under the current culture program sod. However, the applicants are expected to continue the same work in the future. However, in light of the fact that the applicants are transferred and placed under the organization regulations, the Maddra Development Group or the Gyeongman Regional Headquarters (the headquarters belonging to the current culture Bureau) is different from the organized production headquarters (the current culture Bureau) to which the applicants are affiliated, and the Madra Development Group is an independent organization belonging to the management support center that mainly belongs to the employees who mainly work in the area of broadcasting management, and the contents of the work are considerably different from the contents of the existing festival-related duties or planning of various other regional events, and the contents of the work are obviously changed or substantially changed in the work contents or work place where the applicants were enrolled in the field of practice, it seems that the applicant's disadvantage in the business of this case is considerably unfavorable due to the issuance of this case.

D. Article 21 of the Personnel Rules, such as the principle of good faith, is also a kind of the rules of employment, and the rules of employment are an objective legal norm that determines labor relations between labor and management. Thus, barring clear evidence, interpretation or fact-finding that disregards the objective meaning of the language should be prudent and strict (see Supreme Court Decision 2002Da69631, Mar. 14, 2003, etc.).

The fact that the applicant has been issued a transfer order of this case, which differs from the department and the bureau within six months from the date of the issuance of the Part of current culture of current events, is the same as seen above. According to the records, Article 21 of the Personnel Regulations of the respondent stipulates that the transfer of the staff of the respondent shall not be transferred within six months from the date of appointment unless there is any reason falling under any of the following subparagraphs:

Meanwhile, as an exception to Article 21 of the above personnel regulations, where the organization and organization are reorganized or the division of work has been adjusted between departments, it is inevitable due to the occurrence of vacancy in other departments, etc., which explicitly provides grounds for exception under the premise of the movement between departments. Article 4 subparagraph 6 of the personnel regulations, which is the definition of transfer, provides that "transfer" means the change or change of assignment within the same class or the transfer of department within the same position or the transfer of department within the same position." In full view of the fact that Article 7 through 9, and Article 11 of the Regulations on the Organization of the Respondent, which is the respondent's Regulation on the Organization of the Organization of the Respondent, has a regional unit organization as the head office and its subordinate organization, the target of transfer is prohibited under Article 21 of the above personnel regulations.

Therefore, this case’s transfer order issued by the respondent within six months from the date when the respondent was issued to the applicants in the Part II of current culture violates Article 21 of the above personnel regulations, and this part of the respondent’s assertion is without merit under the premise that the above provision is applied to the state unit movement. (2) Violation of Article 26 of the collective agreement and procedures under the good faith principle.

According to the records, Article 26 (Personnel Principles) (5) of the Respondent's collective agreement provides that "each person shall conduct personnel management in accordance with the principle of loaded personnel actions, the principle of equal opportunity, and the principle of satisfaction with needs when moving major personnel such as change of occupation, dispatch, etc. of union members, and the opinion of the relevant union members shall be considered in advance and shall be notified in advance to the relevant branch." It is recognized that the respondent made prior consultation to the applicant prior to the issuance of the transfer of this case or notified the head of the office of culture on current issues 30 minutes prior to the issuance of the transfer of this case without giving prior notice to the trade union, and immediately issued the transfer of this case.

In light of the changes in the contents of the applicant's work in Section 3-C above, the instant transfer order constitutes at least a major personnel movement to the extent that it would correspond to the change of occupation. Therefore, the respondent's above transfer order is deemed to violate Article 26 of the collective agreement stipulating the applicant's opinion and the prior notification to a trade union. It is difficult to see that the respondent merely notified the applicant of the plan to take personnel measures 30 minutes prior to the fact that the respondent merely notified the applicant of the plan to take personnel measures.

E. Sub-decision

When comprehensively considering all circumstances such as the above business necessity, the applicant's occupational disadvantage, living disadvantage, violation of the personnel regulations and collective agreement, etc., the order of the transfer of this case constitutes abuse of rights of the respondent without justifiable grounds, and thus, the applicant has the right to be preserved against the respondent to seek suspension of the validity of the transfer of this case, and the necessity of the preservation is recognized when considering the applicant's mental suffering and living disadvantage.

4. Conclusion

All applications filed by applicants shall be accepted for reasons.

For the purpose of this chapter as a judge in the second place;

Judges Jeong Jong-man

Judges Park Dool