[Plaintiffs, Appellees] Plaintiff 1 and 2 others (Litigation representative: Myeongin Law Firm, attorneys in charge Yoon Jong-hyun and 2 others)
[Defendant, Appellant] E-Land Co., Ltd. (Litigation representative: Kwangjang Law Firm, attorneys in charge Park Woo-dong and 3 others)
[Judgment Below] Seoul High Court Decision 2002Na3916, 3923, 3930, rendered December 18, 2002
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. The summary of the facts found by the court below, based on a comprehensive consideration of the evidence adopted in its judgment, is as follows.
(1) Members of the labor union of the Defendant company went on strike for about nine months from June 16, 2000, over issues such as wage agreements for non-regular workers, and ended the strike on March 7, 2001, after reaching a labor-management agreement with the Defendant company. At the time, Plaintiff 3 served as the union chairperson, Plaintiff 2 as the union secretary-general, and Plaintiff 1 as the head of the union's education and public relations office, each working as a full-time union official (노동조합 전임자, "full-time union official").
(2) When the labor union of the Defendant company entered into a labor-management agreement (이하 '이 사건 노사합의', hereinafter "the instant labor-management agreement") on March 7, 2001 with all the affiliated companies of the E-Land group to which the Defendant company belongs, since the Defendant company accepted most of the union's other demands, the union agreed to accept the "no work, no pay" principle asserted by the Defendant company with respect to the strike period, on the condition that the Defendant company agreed to pay each union member 1,000,000 won as a subsistence support payment, and a written labor-management agreement (Defendant's Exhibit 1) recording the terms of this agreement was drawn up.
(3) In accordance with the instant labor-management agreement, on March 24, 2001, the Defendant company paid most of the union members, including the Plaintiffs who were full-time union officials, 780,000 won each, being the agreed subsistence support payment of 1,000,000 won less the 220,000 won withheld as income tax.
(4) Article 13 (Treatment of Full-time Union Officers), Item 1, of the collective agreement (단체협약, "Collective Agreement") concluded between the Defendant company's labor union and the Defendant company on August 20, 1997 (hereinafter "the instant collective agreement") provides that "the Company shall not subject a person to any disadvantageous treatment on the ground of full-time union service," and Item 2 provides that "the period of full-time service of a full-time union officer shall be deemed continuous service, and the salary and other treatment relating to welfare benefits during the full-time service period shall be governed in accordance with that of general union members."
2. The court below, comprehensively considering the evidence it adopted, found as follows: at the time of the instant labor-management agreement, the union side asserted that the salary of full-time union officials was different in nature from the wages of union members and that the "no work, no pay" principle could not apply thereto, and demanded that the Defendant company specify in the above agreement the payment of salary to full-time union officials during the strike period; however, the Defendant company strongly refused this, asserting that the "no work, no pay" principle should also apply to the salary of full-time union officials. When this issue became the final obstacle in the negotiations, Plaintiff 3 and others, who were union negotiating members, accepted the proposal made by the Defendant company's working-level negotiator, Non-party, and others, that the issue of salary for full-time union officials was not a subject of collective bargaining but a matter to be resolved as a matter of legal interpretation, and should not be included in the above labor-management agreement but dealt with separately, and accordingly did not raise the issue any further; as a result, the issue of salary for full-time union officials was not included in the above labor-management agreement. Based on these findings, the court below determined that it could not be found that there was an agreement, at the time of the instant labor-management agreement, as to whether salary would be paid to the full-time union officials, including the Plaintiffs, for the strike period, and that the mere fact that the Plaintiffs received the subsistence support payment that the Defendant company agreed to pay to union members could not be deemed to mean that the Plaintiffs, as full-time union officials, agreed together with the general union members to accept the "no work, no pay" principle, or that they voluntarily waived their salary for the strike period. According to the record, this finding and determination by the court below are justified, and there is no illegality such as a mistake of fact due to a violation of the rules of evidence, as alleged in the grounds of appeal.
3. The court below further determined as follows: the provision of Article 13, Item 2, of the instant collective agreement, that "the period of full-time service of a full-time union officer shall be deemed continuous service, and the salary and other treatment relating to welfare benefits during the full-time service period shall be governed in accordance with that of general union members," merely means that salary shall be paid in accordance with the wage level paid to general union members holding the same rank and pay grade as the full-time union officials such as the Plaintiffs during their period of service, and that they shall likewise be treated in the same manner with respect to welfare benefits; it cannot be construed as a provision to the effect that, where the "no work, no pay" principle applies to general union members, the same principle shall equally apply to full-time union officials such as the Plaintiffs, so that they would not be paid salary during the period of a labor dispute. Accordingly, the court below determined that the Defendant is obligated to pay the Plaintiffs, who are full-time union officials, their salary for the strike period.
However, the above determination by the court below cannot be accepted.
A full-time union official maintains the basic labor relationship with the employer and retains the status of an employee, but is exempted from the obligation to provide labor, and the employer is likewise exempted from the obligation to pay wages; in this respect, such official is similar to an employee on leave of absence, and even if the employer pays a certain amount of money to the full-time union official pursuant to a collective agreement or the like, such payment cannot be regarded as wages, which are the consideration for labor (see Supreme Court Decision 94Da54566, delivered on November 10, 1995; Supreme Court Decision 97Da54727, delivered on April 24, 1998).
In this case, Article 24(2) of the former Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, "Trade Union and Labor Relations Adjustment Act") (enacted as Act No. 5310 on March 13, 1997), which was in effect at the time the above collective agreement was concluded, provided that a full-time union official shall not receive any salary from the employer during the period of full-time service; moreover, the latter part of the main text of Article 81(4) of the same Act designated an employer's act of supporting the salary of a full-time union official as one type of unfair labor practice, and Article 90 of the same Act provided for the criminal punishment of a person who violates this provision. However, in consideration of the existing practice, Article 6(1) of the Addenda merely deferred, until December 31, 2001, the application of the above provision prohibiting the support of salary to full-time union officials, in the case of businesses or workplaces where the employer was supporting the salary of a full-time union official as of the enforcement date of the above Act (March 13, 1997) (thereafter, by Act No. 6456 of March 28, 2001, the application of Article 24(2) and Article 81(4) of the above Act was further suspended until December 31, 2006). Under these circumstances, provisions such as Article 13, Paragraphs 1 and 2, of the instant collective agreement were established based on a labor-management agreement to the effect that, if a full-time union official such as the Plaintiffs, having been permitted by the Defendant company, the employer, to serve full-time in union affairs, and thereby exempted from the obligation to provide the labor originally owed under the employment contract, were to receive no consideration whatsoever therefor, this would result in an unjust outcome, such as disadvantages in the living conditions of the full-time union official, and that, in order to avoid such an outcome, it was deemed appropriate to provide salary equivalent to that paid to general union members who are engaged in their original duties under the employment contract.
If so, Article 13, Paragraphs 1 and 2, of the instant collective agreement should be construed as providing for the payment of a certain salary to full-time union officials only to the extent that they are not treated less favorably than general union members who provide the original labor stipulated in the employment contract; therefore, treating full-time union officials more favorably than general union members does not accord with what both labor and management originally intended, in light of the purpose and intent of establishing such provisions in the collective agreement. Furthermore, in a situation where general union members are unable to receive wages due to a strike, in accordance with the "no work, no pay" principle, it can never be recognized as legitimate, even in relation to the general union members, for full-time union officials, who may be regarded as officers of the labor union composed of those very members, to insist on receiving their own salary alone.
Therefore, it is reasonable to construe the provisions of Article 13, Paragraphs 1 and 2, of the instant collective agreement as meaning that, where general union members are unable to receive wages from the employer for the strike period in accordance with the "no work, no pay" principle, full-time union officials likewise cannot claim salary from the employer, in the same manner as general union members. The judgment below, which determined otherwise, contains an error of law that misapprehended the legal principles concerning the interpretation of collective agreements, thereby affecting the judgment, and the ground of appeal pointing this out is well-founded.
Moreover, Supreme Court Decision 96Da26671, delivered on December 6, 1996, cited by the court below, was a case in which the issue was whether the judgment violated precedent, which is a ground of appeal permitted in small claims cases; in that case, the court below had determined that it was unjust for the employer not to pay wages for the period during which a full-time union official engaged in illegal union activities, and the employer appealed, arguing that this determination was contrary to Supreme Court en banc Decision 94Da26721, delivered on December 21, 1995, and other decisions declaring the "no work, no pay" principle. However, the above Supreme Court en banc Decision and others declared the "no work, no pay" principle with respect to general employees, and thus could not serve as precedent applicable to that case, which concerned a full-time union official who had no obligation to provide labor; accordingly, that decision merely held that the above ground of appeal did not constitute a legitimate ground of appeal under the Act on Special Cases Concerning the Procedure for Trial of Small Claims (소액사건심판법, "Act on Special Cases Concerning the Procedure for Trial of Small Claims"); it was not a decision declaring that salary must be paid to full-time union officials even during a period of industrial action, or that the "no work, no pay" principle should not apply to them, and therefore it cannot serve as precedent for this case (see Supreme Court Decision 2003Da10100, 10117, delivered on April 25, 2003).
4. Therefore, without rendering judgment on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below, as set forth in the Order.
Justice Lee Yong-woo (Presiding Justice), Seo Seong, Bae Gi-won, Park Jae-yun (Justice in charge)