[Attachment] (Law Firm Inn, Attorneys Shin Young-soo et al., Counsel for the plaintiff-appellant)

[Judgment of the court below]

December 22, 2017

1. The defendant shall pay to plaintiffs 4. 20 million won, 40,000 won to plaintiffs 9. 90, 90,000 won to plaintiffs 19. 1,792,220 won to plaintiffs 30, and 20,000 won to plaintiffs 41. 41, and 6,780 won to plaintiffs 44. 6,780 won, 67,550 won to plaintiffs 46. 5% per annum from December 18, 2017 to February 9, 2018, and 15% per annum from the next day to the date of full payment.

2. The remainder of the plaintiffs 4, 9, 19, 30, 41, 44, and 46 and the remaining plaintiffs' claims are all dismissed.

3. Of the costs of lawsuit, the portion arising between the plaintiffs 4, 9, 19, 30, 41, 44, and 46 and the defendant 49/50 shall be borne by the above plaintiffs, and the remainder by the defendant, and the portion arising between the remaining plaintiffs and the defendant shall be borne by the remaining plaintiffs, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum from December 18, 2017 to the date of the instant judgment, and 15% interest per annum from the following day to the date of full payment.

1. Basic facts

A. Status of the parties

1) The Defendant is a metropolitan local government that establishes and operates a public middle and high school located in Seoul, and is considered to employ the Plaintiffs from January 1, 2014 pursuant to the Seoul Metropolitan Office of Education Ordinance on Employment, etc. of Educational Officials (hereinafter “instant Ordinance”).

2) The Plaintiffs are those who work in the administrative office and facility room of public middle and high schools in Seoul (hereinafter “each of the instant schools”) established and operated by the Defendant, and are those who entered into a labor contract with each of the instant principals from January 1, 2014 to the time they are deemed to have been employed by the Defendant pursuant to the instant ordinances.

B. Personal composition of the administrative office and facility rooms of each of the schools of this case

The administrative office of each school of this case has served as a local administrative public official, and a facility management public official (hereinafter referred to as the "public official of this case") in a part of a facility room in the same place as the plaintiffs.

C. The plaintiffs' remuneration

1) The Plaintiffs are salary class workers who received remuneration in accordance with the salary table of public officials in employment among former employees of the former fostering council and school accounting employees of the former parents’ association (on the present date, the name of public officials in education is used pursuant to this Ordinance). Article 10 of the collective agreement between the Seoul Office of Education and the Seoul General Trade Union concluded on July 19, 2013 between the Seoul Office of Education and the Seoul General Trade Union prescribed the following as to the salary for salary class workers:

Article 10 (1) of the attached Table 10 (1) of the Regulations on Local Public Officials, Regulations on Allowances, etc. for Local Public Officials, and Guidelines for the Management of Remuneration, etc. of Local Public Officials shall apply mutatis mutandis to the remuneration of the personnel of the school accounting association (Gu) among the personnel of the school accounting: Provided, That the following remuneration shall be paid by applying the remuneration of class 9 to the personnel of class 9 of the former technical service who was repealed by the amendment of the Local Public Officials Act, from August 2013 (Attached Table 8): Provided, That in cases of high schools, the salary of class 1, which serves as the basis for the payment of wages, is adjacent to the level of general service whose current salary is not lowered: Provided, That the criteria for the payment of remuneration of class 10 of the technical service, which was abolished by the amendment of the Local Public Officials Act, shall be applied to the remuneration of class 10 of the current technical service.

The plaintiffs have abolished the remuneration standards for public officials in general service and the remuneration standards for public officials in technical service through the revision of the Local Public Officials Act.

2) On July 21, 2016, which was concluded between the Seoul District Office of Education and the Seoul Special Metropolitan City Public School Salary Accounting Workers’ Union, Article 44 of the collective agreement of July 21, 2016 provides that “The salary of salary class workers shall apply mutatis mutandis to the Local Public Officials’ Salary Regulations, the Regulations on Allowances, etc. for Local Public Officials, and the Guidelines for Handling Remuneration, etc. of Local Public Officials’ Remuneration.”

3) The Plaintiffs are not recognized to be promoted for continuous service applied to local public officials, without a promotion for the class, and receive the principal salary, salary grade, management allowances, fixed-term allowances, and holiday leave expenses less, compared to public officials who have served the same period as the promotion for the class of salary was recognized. The treatment public officials’ allowances, dangerous work allowances (limited to the Plaintiffs working in the facility room; hereinafter the same shall apply), overtime work allowances, and overtime work allowances are not paid, and some Plaintiffs are not paid additional allowances, and public officials are not paid the principal salary increase from January 1 of each year. While the main salary increase is applied from March 1 of each year, the Plaintiffs were not paid the principal salary increase for two months each year (hereinafter the Plaintiffs were paid or not received less than public officials, and all the principal salary and various allowances that were paid or not paid.).

[Ground] Facts without dispute, Gap evidence 1, 16 through 18, 50 evidence, Eul evidence 18 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

1) The Defendant did not recognize a promotion for continuous service in the class applied to public officials in the payment of the benefits to the Plaintiffs, and recognized only a elevation of salary level in accordance with the remuneration standard for public officials of Grade 9. As such, in determining the benefits, the Plaintiffs were paid less than the principal salary, class subsidies, treatment public officials, management allowances, good attendance allowances, and holiday leave expenses, etc. compared to public officials and private school clerical officials, and the dangerous work allowances and overtime work allowances were not paid less than the fixed amount without any specific reasons. Some of the Plaintiffs were not paid the fixed amount of overtime work allowances and overtime work allowances, and the fixed amount of overtime work allowances and overtime work allowances were not paid. While the fixed amount of salary increase was applied to public officials, while the fixed amount of salary increase applied to the increased amount of salary as of March 1 each year, the Plaintiffs did not receive the increased amount of salary in Grade 1 and February each year.

The Defendant’s treatment against the Plaintiffs is discrimination against the instant public officials and private school employees, who are comparable groups without reasonable grounds. As such, Article 44 of the collective agreement on July 21, 2016 applies mutatis mutandis to “Local Public Officials Remuneration Regulations, Regulations on Allowances, etc. for Local Public Officials, and Guidelines for Handling Remuneration, etc. of Local Public Officials. In applying mutatis mutandis, the provision that “the treatment of local public officials shall not be discriminated and disadvantageous to public officials in general service, and Article 6 of the Labor Standards Act shall be null and void.”

Therefore, the defendant shall pay the plaintiffs' wages equivalent to the difference that the plaintiffs suffered as discrimination, and the similar work experience and military work experience before the plaintiffs were employed as the salary grade workers in a new calculation of the grade and salary grade that the plaintiffs should be applied.

2) The labor contract with the content that the Defendant did not pay each of the instant allowances to the Plaintiffs is contrary to the principle of equality under Article 11 of the Constitution, and is null and void as it constitutes a juristic act contrary to social order under Article 103 of the Civil Act or an unfair juristic act under Article 104 of the Civil Act. The Defendant’s aforementioned discriminatory treatment is a tort that infringes on the Plaintiffs’ personality rights, and the Defendant is liable for damages equivalent to the wages discriminated pursuant to Article 750 of the Civil Act. In addition, the aforementioned wage discrimination infringes on the Plaintiffs’ personal legal interests, and the Defendant shall compensate for damages equivalent to the wages suffered by the Plaintiffs.

B. Defendant’s assertion

1) The Plaintiffs and private school clerical staff are different from those of employees, and they are not subject to comparison.

2) Regarding the comparison between the plaintiffs and public officials, there is no ground to apply the promotion for continuous service to the plaintiffs with respect to the principal salary, job grade allowance, treatment public officials' allowance, management allowance, good attendance allowance, and holiday leave allowance under the premise of promotion for class. ② Risk work allowances cannot be deemed to have satisfied these requirements in determining whether they are engaged in duties, whether they are engaged in full-time work, and whether they are directly engaged in the work, and ③ The fixed amount of overtime work allowances can not be paid because the plaintiffs and public officials are different in the calculation method of overtime work allowances per hour, and ④ applying the increased amount of salary in March every year to the school accounting for the beginning of March each year, and thus, it is not discrimination.

3. Determination

A. Determination on the assertion of discrimination between the plaintiffs and private school staff

The plaintiffs are deemed to have entered into an employment contract with the defendant from January 1, 2014, and receive wages from the school accounting of each of the instant schools, while private school clerical staff enter into an employment contract with a private school juristic person and receive wages from a private school juristic person. The plaintiffs and private school clerical staff are not in essence the same comparative group in determining whether there is discrimination under Article 6 of the Labor Standards Act due to the difference between the employer and the private school clerical staff. Thus, the above plaintiffs' assertion is without merit,

B. Determination on the assertion of discrimination between the plaintiffs and the public officials of this case

1) Whether the case constitutes a comparative group

The administrative office of each school of this case is a local administrative public official, and facility management public official's office is a facility management official's office at the same place as the plaintiffs. However, in light of the following types of employment, procedures, contents, scope of duties, authority, and responsibility of the plaintiffs, which can be seen by comprehensively taking into account the following macro evidence, Gap evidence No. 15, Eul evidence No. 2 and No. 3, and the overall purport of the pleading, it is difficult to view the public official of this case as a comparative organization to determine discriminatory treatment under Article 6 of the Labor Standards Act

① In most cases, the instant public officials are employed through an open competitive recruitment examination pursuant to Article 27(1) of the Local Public Officials Act or through a career competitive recruitment examination pursuant to Article 27(2) of the Local Public Officials Act, while each of the instant schools, such as the Plaintiffs, are employed by the principal of the instant school as an employee of the former Promotion Association or the former parent association, and it does not seem to have classified the appointment route only with the intent to discriminate the Plaintiffs. As such, the Plaintiffs, public officials working in the administrative office, or the facilities room differs from the type of employment and the procedure.

② Although it is difficult for the instant public officials and the Plaintiffs to uniformly compare each of the instant schools with the division chief, the head of the administrative office, who is the head of the administrative office, appears to be in charge of the duties of the public officials and the Plaintiffs. However, it is difficult to view that the duties of the public officials and the Plaintiffs are identical to the duties of the public officials of the administrative office chief among each of the instant schools (it is also the case where the public officials of this case and the employees of the salary class system are in charge of the vicarious performance of the administrative office chief among the instant schools, and where the public officials of this case and the employees of salary class system are divided into full-time and full-time officers in the administrative division table of each of the instant schools. However, it is difficult to view that the duties of the head of the administrative office

③ Unlike salary class workers, the public officials of this case are subject to the application of the Local Public Officials Act and the Local Public Officials Service Regulations, requiring the duty of compliance with an official order, etc., and their responsibilities are accordingly required.

2) Whether each of the instant allowances violates the collective agreement

Although it is difficult to see the Plaintiffs and the instant public officials as the same comparative group under the Labor Standards Act, each collective agreement as of July 19, 2013, and July 21, 2016, respectively, provides that the same salary class workers as the Plaintiffs shall apply mutatis mutandis to the Local Public Officials Remuneration Regulations, the Local Public Officials Remuneration Regulations, the Local Public Officials Remuneration Regulations, and the Guidelines for Handling Local Public Officials’ Remuneration Affairs, etc., so, whether each of the instant allowances was paid by applying mutatis mutandis the aforementioned provisions or not shall be examined.

(a) allowances on the assumption of promotion of class (main pay, class allowance, treatment officials’ allowance, management allowance, good attendance allowance, and holiday allowance);

Article 10(1) of the collective agreement on July 19, 2013 provides that “the remuneration of the personnel of the school accounting council (Gu) shall be paid by applying mutatis mutandis the Local Public Officials Remuneration Regulations, the Regulations on Allowances, etc. for Local Public Officials, and the Guidelines for Handling Remuneration, etc. of Local Public Officials: Provided, That Article 44 of the collective agreement on July 21, 2016 shall apply mutatis mutandis to overtime work (over-time work), holiday work, night work, maternity work, post-child leave, and annual paid leave.” Article 10(2) provides that “The Labor Standards Act shall apply mutatis mutandis to overtime work, holiday work, maternity work, post-child leave, and annual paid leave.” Article 10(1) provides that “The employees of the school accounting who have been subject to the previous technical position 10 and employment remuneration shall be paid by applying the remuneration of the public officials from August 2013 to the high school: Provided, That Article 44 of the collective agreement on July 21, 2016 shall not apply mutatis mutandis to the remuneration of the Local Public Officials Remuneration Guidelines.

According to the above facts of recognition, it is confirmed that the wages of salary grade workers like the plaintiffs shall be paid by applying mutatis mutandis the Local Public Officials Remuneration Regulations, the Regulations on Allowances, etc. for Local Public Officials, and the Guidelines for Handling Remuneration, etc. of Local Public Officials, and that a collective agreement between the plaintiffs and the defendant was made between the plaintiffs to be paid the 10th class or 9th class in technical service from August 2013 to be paid the 9th class in technical service, but it is difficult to view that the criteria for remuneration of public officials of class 10 in technical service or 9 in technical service should be applied to the plaintiffs, and it is difficult to apply mutatis mutandis to the promotion for continuous service as prescribed in Article 33-2 of the Decree on the Appointment of Local Public Officials to the plaintiffs, based on the concept of the same class as the public officials. Accordingly, the plaintiffs' assertion on the premise that the salary of class increased following continuous service promotion should be paid to the plaintiffs is without merit (it is difficult to view that Article 44 of the collective agreement on July 21, 2016 should not be given the level of continuous service.

(B)Dangerous Work Allowances;

Article 13 of the Regulations on Allowances, etc. for Local Public Officials provides that "A dangerous duty as a public official shall be paid to the persons who are engaged in dangerous duty according to the classification of payment in attached Table 7 and the classification in attached Table 8 within budgetary limits." The attached Table 7 provides that monthly payment of the class C shall be 40,000 won, and the attached Table 8 provides that "persons engaged in boiler equipment operation and management work" shall be classified as class C. Meanwhile, according to the respective statements in evidence Nos. 29 and 32, it is recognized that there exists a person who is not paid the danger duty even among the facility management officials working at public schools operated by the defendant.

According to the above facts, in order for the plaintiffs to receive the risk service allowance, it should be proved that the plaintiffs are actually engaged in the operation and management of boiler devices in each of the instant schools, and there is no evidence to acknowledge this, the plaintiffs' assertion is without merit.

C) A fixed amount of overtime allowances

Article 15 of the Regulations on Allowances, etc. for Local Public Officials provides for overtime work allowances, and Article 15(5)2 of the same Act provides that “overtime work shall be deducted from one hour in case of overtime work, and shall be excluded from calculation if working hours are less than one hour,” and Paragraph (6) of the same Article provides that “in case of public officials to whom Paragraph (5) 2 applies, additional overtime work allowances may be paid to the plaintiffs, and the fact that overtime work allowances have been paid to the plaintiffs are not disputed between the parties concerned.

According to the above facts, in order for the plaintiffs to receive the fixed amount of overtime allowances, the calculation method of overtime allowances applicable to public officials prescribed in Article 15 of the Regulations on Allowances, etc. for Local Public Officials shall be applied first. As long as the plaintiffs received overtime allowances pursuant to the Labor Standards Act more favorable than the overtime allowances applicable to public officials, the argument that the plaintiffs have the right to receive overtime allowances as public officials is without merit.

D) Additional charges for good attendance allowances;

Article 6 (3) of the Regulations on Allowances, etc. for Local Public Officials provides that "additional allowances for good attendance shall be paid to public officials falling under paragraph (1) in accordance with the payment classification in attached Table 2 on the monthly payment date of remuneration according to the number of his/her service." The attached Table 2 of the above provision provides that "at least five years and less than ten years of service, 50,000 won, 60,000 won for not less than ten years and less than 15 years, 80,000 won for less than 15 years and less than 20 years, and 10,000 won for not less than 20 years," and the fact that some plaintiffs were not paid additional allowances for good attendance shall be as seen earlier.

According to the above facts, since the plaintiffs have the right to receive additional dues for fixed allowances under Article 6 (3) of the Regulations on Allowances, etc. for Local Public Officials pursuant to the collective agreement, the defendant is obligated to pay part of the plaintiffs who did not receive or paid allowances even though they failed to meet the conditions of service years since January 2014, which is deemed to employ the plaintiffs, even though they did not meet the conditions of service years.

The defendant asserts that the additional 20,00 won for 20,00 won for 20,00 won for 20,000 won for 20,80.8,000 won for 20,00 won for 20,000 won for 30,00 won for 20,00 won for 20,00 won for 20,00 won for 30,00 won for 205,00 won for 20,000 won for 30,00 won for 20,000 won for 30,00 won for 206,00 won for 20,000 won for 30,00 won for 206,00 won for 30,00 won for 20,000 won for 20,000 won for 20,000 won for 20,00 won for 306,06,000 won for 36,06.

E) The increase in the principal salary of February each year;

Article 30-2 (1) of the Elementary and Secondary Education Act provides that "the school accounting (school accounting) shall be established in national or public elementary schools, middle schools, high schools and special schools," and Article 30-3 (1) of the Elementary and Secondary Education provides that "the school accounting's fiscal year commences on March 1 of each year and ends on the last day of February of the following year," and the fact that the plaintiffs are paid remuneration by the school accounting is no dispute between the parties concerned.

According to the above facts of recognition, the payment of the plaintiffs' remuneration raised from March 1, each year, not January 1, 200 is due to the fact that the financial resources of the plaintiffs' remuneration are based on school accounting, and there are reasonable grounds for discrimination. Therefore, the plaintiffs' above assertion is without merit.

3) Sub-decisions

As additional dues for good attendance allowances, the Defendant is obligated to pay the Plaintiff 4 KRW 20,00, KRW 40,000, KRW 90, and KRW 1,792,220 to Plaintiff 30, and KRW 20,000 to Plaintiff 41, KRW 6,780 to Plaintiff 44, KRW 67,50 to Plaintiff 46, and KRW 677,50 to Plaintiff 46, and KRW 6750 to each of the above payments after the due date, as sought by the said Plaintiffs, from December 18, 2017 to February 9, 2018, KRW 5% per annum as stipulated in the Civil Act, and from the next day to the date of full payment, damages for delay by 15% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings.

C. Determination as to the assertion of violation of Articles 103 and 104 of the Civil Act and the assertion of infringement of personal rights

As seen earlier, it is difficult to view the Plaintiffs, private school staff, or public official of this case as a comparison group in essence the same comparable group. Thus, even if the Defendant paid wages to the Plaintiffs in accordance with the different criteria from the public official of this case, it violates the principle of equality under Article 11 of the Constitution, and thus, violates good morals and other social order, or is not a juristic act that has considerably lost fairness due to the party’s flasing, rashness, or experience, and it does not constitute a juristic act that has considerably lost fairness, and it is difficult

4. Conclusion

The claims of Plaintiffs 4, 9, 19, 30, 41, 44, and 46 are reasonable within the scope of the above recognition, and therefore, they shall be accepted. The remaining claims of the above plaintiffs and the remaining claims of the plaintiffs are dismissed. It is so decided as per Disposition.

(attached Form omitted)

Judges Kim Han-sung (Presiding Judge) clinicals