[Order]
The part of the judgment below concerning Article 32 of the collective agreement, among the portions in which the Plaintiff lost, is reversed. The part concerning Article 32 of the collective agreement, among the decision on reexamination rendered by the National Labor Relations Commission (중앙노동위원회) on January 24, 1996 regarding Case No. 95-Jungjae-Jaesim-22 (95중재재심22호), an application for reexamination of labor dispute arbitration between the Plaintiff and the Intervenor for the Defendant, is revoked, and the total litigation costs for this part shall be borne by the Defendant and the Intervenor for the Defendant. The remainder of the Plaintiff's appeal and the Defendant's appeal are all dismissed. The costs of the appeal for the dismissed portions shall be borne by each party respectively.
[Reasoning]
The grounds of appeal are examined.
1. Summary of the reasoning of the judgment below
According to the reasoning of the judgment below, the court below found the following facts: When collective bargaining between the Plaintiff and the Intervenor for the Defendant (hereinafter referred to as "the Intervenor") for the conclusion of the 1995 wage agreement and collective agreement failed to reach an agreement, the Plaintiff filed a report of the occurrence of a labor dispute with the Jeju Regional Labor Relations Commission (제주도지방노동위원회, hereinafter "the Regional Labor Relations Commission") on July 5, 1995. When no agreement was reached between labor and management despite mediation and conciliation by the Regional Labor Relations Commission, it decided to refer the matter to arbitration at the request of the Governor of Jeju Province, and rendered an arbitration award on November 22, 1995. The contents thereof, with respect to the wage agreement portion, were: (1) amending Article 16 of the existing wage agreement (concluded in 1994) so that the labor union shall deposit a fixed amount of 104,000 won during peak season and 97,000 won during off-peak season per day of vehicle operation into the company, and the company shall not compel deposits in excess of said amount; and with respect to the collective agreement portion: (2) amending Article 18 of the existing collective agreement (concluded in 1992, the same applies hereinafter) so that when the union president or executives engage in union activities, the union shall notify the company orally or in writing at least 24 hours in advance, and the company shall comply therewith and recognize such time as actual work time and pay average wages therefor; (3) maintaining Article 12 of the existing collective agreement so that when a union executive wishes to participate in various meetings or events during working hours pursuant to the union's bylaws and operating regulations, he/she shall notify the date, time and place orally or in writing one day in advance, and the parties concerned shall report in advance, and the time of union activities shall be recognized as time on duty and average wages shall be paid therefor; (4) maintaining Article 8 of the existing collective agreement so that the company shall not exercise a right of indemnity when a union member causes a traffic accident while on duty; (5) maintaining Article 13 of the existing collective agreement so that when a union member who has been dismissed or has suffered a disadvantage is determined by the Labor Relations Commission to have been subject to unfair labor practice, the company shall pay the average wage for the period of dismissal and immediately reinstate the member to his/her former position; (6) maintaining Article 25 of the existing collective agreement so that a commendation and disciplinary committee shall be formed to ensure fairness in the commendation and discipline of union members, with three members each from labor and management, and the company may not discipline for reasons other than the grounds for discipline prescribed in the above collective agreement; (7) amending Article 32 of the existing collective agreement so that the work system for union members shall in principle be an alternate-day system, and the daily working hours of union members shall be 16 hours of actual working time excluding rest time out of a total of 18 hours; and with respect to the term of validity, the collective agreement portion shall be from December 1, 1995 to November 30, 1997, and the wage agreement portion shall be from December 1, 1995 to November 30, 1996. The court below further found that the Plaintiff, asserting that the above arbitration award was unlawful, applied to the National Labor Relations Commission for reexamination, but the National Labor Relations Commission dismissed the application for reexamination on January 24, 1996. Based on these findings, the court below determined that Articles 18 and 12 of the collective agreement, concerning union activities during working hours or the full-time union officer system, did not concern working conditions and thus could not be the subject of an arbitration award, and that the arbitration award on this portion was therefore unlawful, while the arbitration award concerning Articles 8, 13, 25, and 32 of the collective agreement and Article 16 of the wage agreement was all lawful for the reasons stated in its judgment.
2. Determination on the grounds of appeal
A. As to the Defendant's appeal
In an employment relationship between an employer and an employee, a dispute arising from a disagreement between the parties to a labor relationship concerning matters other than "working conditions," which are conditions concerning the treatment of employees, does not constitute a dispute over working conditions, and therefore cannot be considered a "labor dispute" under Article 2 of the former Trade Union and Labor Relations Adjustment Act (구 노동쟁의조정법) (abolished by Act No. 5244 of December 31, 1996; hereinafter the same), and, absent special circumstances, such matters cannot be the subject of an arbitration award (see Supreme Court Decision 94Nu9177 dated February 23, 1996).
Among the disputes that were the subject of the arbitration award in this case, the dispute concerning Articles 18 and 12 of the collective agreement relates to the full-time union officer system or union activities during working hours, and is not a dispute concerning working conditions. Even if provisions on such matters existed in the previous collective agreement or in the draft collective agreements of both parties to the labor relationship during collective bargaining, this does not necessarily mean that such matters thereby became "working conditions." Therefore, the disagreement between the parties to the labor relationship regarding these matters cannot be considered a labor dispute, and, absent special circumstances, cannot be made the subject of an arbitration award.
Accordingly, the court below's determination that the portion of the reexamination decision in this case concerning matters that cannot be the subject of an arbitration award, rendered in the arbitration procedure conducted ex officio in this case, is unlawful, is correct, and there is no error of law, such as a misunderstanding of the legal principles concerning the subject matter of arbitration awards, as alleged in the grounds of appeal.
B. As to the Plaintiff's appeal
(1) As to the portion concerning Article 13 of the collective agreement
An objection to an arbitration award is permitted only where the arbitration award is found to be unlawful or beyond the scope of authority; an objection is not permitted merely on the ground that the arbitration award is unfavorable or unreasonable to either labor or management (see Supreme Court Decisions 93Nu11883 dated January 11, 1994, and 91Nu8944 dated July 14, 1992).
The Constitutional Court, in its decision 92Heonga14 dated March 23, 1995, held that Article 46 of the former Trade Union Act (구 노동조합법) (abolished by Act No. 5244 of December 31, 1996), which provided for criminal punishment of an employer who failed to comply with an unconfirmed remedial order for unfair labor practice, was unconstitutional as violating the principle of due process and the principle against excessive restriction. However, this merely means that it is unconstitutional to impose the same criminal punishment on a violator as on one who fails to comply with a confirmed remedial order, as a means of securing compliance with an unconfirmed remedial order that nonetheless has provisional binding force; it does not mean that an employer has no obligation to immediately comply with an unconfirmed remedial order for unfair labor practice.
Therefore, the arbitration award in this case, which provided that where a union member who has been dismissed or has suffered a disadvantage is determined by the Labor Relations Commission to have been subject to an unfair labor practice, the company shall pay the average wage for the period of dismissal and immediately reinstate the member to his/her former position, cannot be deemed unlawful as violating the above Constitutional Court decision. The judgment of the court below to the same effect is correct, and this ground of appeal is without merit.
(2) As to the portion concerning Article 16 of the wage agreement
The fixed-amount system arbitrated in this case is a form of wage payment method for employees at commercial taxi companies, and an employment contract based on such a wage payment method may be regarded as a daily piece-rate employment contract. A dispute concerning such a wage payment method is a matter concerning wages and thus may be the subject of an arbitration award. Meanwhile, the term of validity of the arbitration award concerning the wage agreement in this case is from December 1, 1995 to November 30, 1996, as found by the court below. Pursuant to Article 24(4) of the Automobile Transport Business Act (자동차운수사업법) (as amended by Act No. 4780 of August 3, 1994) and its Addenda, and Article 2-8 and Paragraph 2 of the Addenda of the Enforcement Decree of the same Act (as amended by Presidential Decree No. 14511 of January 21, 1995), general taxi transport business operators are required, from September 1, 1997, to receive from their transport workers the full amount of the transport revenue collected by the workers from users, thereby prohibiting daily piece-rate wage contracts from September 1, 1997 onward. However, prior to that date, no provision of the Automobile Transport Business Act prohibiting such a system can be found, nor is there any other material indicating that the daily piece-rate wage payment method was unlawful (according to the record, since the arbitration award in this case guarantees a basic wage for employees, this portion of the arbitration award cannot be said to violate Article 39 of the former Labor Standards Act (구 근로기준법) (abolished by Act No. 5305 of March 13, 1997; hereinafter the same)). Moreover, since this portion of the arbitration award merely adopted the daily piece-rate system as one method of wage payment to employees, and did not exclude the portion of transport revenue remaining after deduction of the fixed remittance amount ("sabatgeum") from the tax base for value-added tax, the content of this portion of the arbitration award cannot be deemed unlawful as violating the Value-Added Tax Act.
The judgment of the court below to the same effect is correct, and this ground of appeal is also without merit.
(3) As to the portion concerning Article 32 of the collective agreement
Article 42(1) of the former Labor Standards Act merely provides that "working hours, excluding rest hours, shall not exceed 8 hours per day and 44 hours per week; provided, however, that upon agreement between the parties, working hours may be extended by up to 12 hours per week," and does not adopt a so-called flexible working hours system. Therefore, even where there is an agreement between the parties, absent special circumstances, the working hours in a particular week may not exceed 56 hours.
However, the content of this portion of the arbitration award provides for a 16-hour workday under an alternate-day system, resulting in working hours of 64 hours in a particular week. Therefore, this portion of the arbitration award is unlawful as violating Article 42(1) of the former Labor Standards Act. Nevertheless, the court below determined that the reexamination decision, which dismissed the Plaintiff's application for reexamination seeking revocation of the above arbitration award, was lawful with respect to this portion. Accordingly, the judgment of the court below on this portion contains an error of law due to a misunderstanding of the legal principles concerning Article 42(1) of the former Labor Standards Act and Article 38(2) of the former Trade Union and Labor Relations Adjustment Act, and this ground of appeal pointing out this error is well-founded.
(4) As to the portion concerning Articles 8 and 25 of the collective agreement
The Plaintiff did not submit grounds of appeal within the lawful period with respect to this portion, nor did the Plaintiff state any grounds of appeal in the notice of appeal.
3. Conclusion
Accordingly, the portion of the judgment below concerning Article 32 of the collective agreement, among the portions in which the Plaintiff lost, is reversed. Since this portion is sufficient for this Court to render judgment based on the facts established by the court below, this Court renders judgment directly pursuant to Article 8(2) of the Administrative Litigation Act (행정소송법) and Article 407 of the Civil Procedure Act (민사소송법). As stated above, since this portion of the arbitration award is unlawful as violating Article 42(1) of the former Labor Standards Act, it is revoked, and the total litigation costs for this portion shall be borne by the Defendant and the Intervenor for the Defendant. The remainder of the Plaintiff's appeal and the Defendant's appeal are all dismissed, and the costs of the appeal for the dismissed portions shall be borne by each party respectively. This judgment is rendered as stated in the Order, by the unanimous opinion of the Justices concerned.
Justice Cheon Gyeong-song (Presiding Justice), Ji Chang-kwon, Shin Seong-taek (Justice in charge), Song Jin-hoon