June 26, 2015

2. The plaintiffs' appeal is dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

[Claim]

The defendant shall pay to the plaintiffs the amount stated in the "total amount of claim" in the attached Form 2. The amount of each claim and the amount stated in the "amount of unpaid statutory allowances" column among them, from June 26, 2012 to the amount stated in the "amount of unpaid retirement allowances" column, and from March 15, 201 to the date of service of the application for change of claim and cause of claim as of February 6, 2014 to the date of service of the application for change of claim and cause of claim as of February 6, 2014 to the date of full payment, 6% per annum and 20% per annum from the following day to the date of full payment.

[Purpose of Appeal by Plaintiffs]

It is amended as stated in the judgment of the first instance court.

【Purpose of Defendant’s Appeal】

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

The reasoning for this Court’s explanation concerning this case is as follows: (a) the part between 14 and 12 of the judgment of the court of first instance is used as follows; (b) the part between 17 and 11 of the 19th 12 of the 17th 19th 12 is as stated in the judgment of the court of first instance; and (c) the part is as described in the corresponding part of the judgment of the court of first instance, except when the part is used as described in the above.

2. Parts to be dried;

A. Part of the judgment of the court of first instance with a 10 line from 14th to 12 lines (related to the glarging allowance)

According to the overall purport of Gap evidence 6, 41, and Eul evidence 12, the defendant company granted 30,000 won to a class 1 holder, 200 won to a class 3 holder, 10,000 won for a class 3 holder, and 10,000 won for a class 3 holder, each month for a class 3 holder, based on the acquisition score of English, Japanese language, Chinese Authorized Language Qualifying Examination (TOEFL, JPT, HSK), and whether an oral examination has been passed. The fact that the period of recognition of the above allowances is the period of service for the class that acquired the relevant qualification and the period of re-application after getting on and off the corresponding class, if the acquisition date of qualification is before the 15th day of each month, it is recognized that the allowances have been paid in full for the relevant month, and if thereafter, the allowances have been paid from the following month.

In a case where an allowance is paid to a worker who satisfies a certain condition or has obtained a certificate of qualification under the pretext of “technical allowance” or “qualification allowance” in relation to the pertinent labor, if such allowance is paid periodically, fixed, and lump-sum as an object of contractual labor, it may constitute ordinary wages. However, in light of the fact that ordinary wages are the concept of evaluating the value of contractual labor, the “specified condition or standard”, which is the standard for determining whether the wages paid to all workers within a certain scope are ordinary wages, should be a condition related to the assessment of the value of contractual labor, such as the contents, skills, and career (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

However, in light of the following: (a) there is no evidence to acknowledge that the said fish qualification rating is related to the assessment of the value of the fixed working hours of the gymian crew because the gymian crew could not respond to the passengers within the aircraft, or that the said gymian qualification rating is related to the assessment of the value of the fixed working hours of the gymian crew; (b) the above gymian qualification rating (TOEL, JPT, HSK) is widely implemented for the purpose of measuring the general foreign language ability among the general public; and (c) the allowances paid to the third-class acquisition of the gymian qualification are less than 10,000 won per month and the allowances paid to the gymianian acquisition of the gymian qualification are less than 30,000 won per month; and (c) it is reasonable to view that the gymian allowances are not paid for the fixed working hours, but for the motive and encouragement for the improvement of the foreign language ability of their employees.

B. Part of the judgment of the court of first instance between 11 and 12 19 pages (related to new rules)

E. As to the assertion of violation of the principle of good faith

1) Relevant legal principles

If the contents of a labor-management agreement, such as a collective agreement, are invalid in violation of the compulsory provisions of the Labor Standards Act, it would result in denying the legislative intent of the labor-management agreement that violates the compulsory provisions, and thus, such assertion cannot be deemed to violate the principle of good faith. However, it does not mean that the application of the principle of good faith is excluded without exception to the assertion on invalidation of the labor-management agreement, on the ground that the contents of the labor-management agreement violate the compulsory provisions of the Labor Standards Act. In exceptional cases where there are special circumstances to accept the application of the principle of good faith prior to the good faith despite the general requirements for applying the principle of good faith and the compulsory provisions of the Labor Standards Act, the assertion on invalidation of the labor-management agreement

However, as seen in the past, in cases where most companies in Korea agreed to exclude regular bonuses from the ordinary wage calculation standard and determine wage level on the premise of the agreement as seen in the labor-management negotiation process, it is clear that the employer’s claim for additional legal allowances by the worker violates the good faith principle by seeking an additional legal allowances on the ground that the employer did not think at all at the time of the wage negotiation, i.e., the method, background, actual goal, and outcome of the wage negotiation, thereby seeking more profit than the wage level agreed upon by the labor and management, and thereby seeking an additional legal allowances on the basis of which the employer would be able to recover any unexpected financial burden than the wage level agreed upon by the labor and management, or endanger the company’s existence. Accordingly, it is difficult to accept the employee’s claim for additional legal allowances in such a case, because it would ultimately result in the loss to the worker’s side, which would not help either the labor or management, and thus, would result in a serious business trouble or endanger the company’s existence.

2) Whether the Defendant and the trade union agreed to exclude regular bonuses from the ordinary wage calculation criteria by misunderstanding that regular bonuses do not constitute ordinary wages, and whether the wage level was determined on such premise

According to the overall purport of evidence Nos. 5, 6, 7, and 18, the defendant company and the trade union agree to recognize that regular bonuses do not constitute ordinary wages since the introduction of the regular bonus payment system in 1998, and exclude regular bonuses from the scope of ordinary wages, and that they conducted wage negotiations or collective bargaining on such premise.

3) Whether the defendant company and trade unions set the rate of increase in basic pay, etc., increase in various allowances, and the amount of statutory allowances premised on ordinary wages under the collective agreement, etc. based on the total amount of wages when negotiating wages

In light of the general purport of the evidence Nos. 18 and 19, the defendant company and the trade union acknowledged that the total amount of wages was determined based on the total amount of wages, etc. and whether to increase various allowances. In ordinary cases, where the labor-management in Korea determines the total amount of wages within the mutually agreed scope and negotiates on the basis thereof, it is reasonable to view that the total amount of wages is included in the estimated amount of regular bonuses, various allowances, and statutory allowances calculated based on ordinary wages paid at a certain period exceeding one month in response to the labor provided during a certain period of time, as well as in the total amount of wages, barring special circumstances.

4) Whether the plaintiffs' claim in this case exceeds the wage level agreed upon by labor and management

A) The instant bonus is the amount equivalent to 600% per annum of the total amount of continuous service allowances in the basic wage. If the instant bonus is to be included in the ordinary wage according to the composition items and amount of the ordinary wage as seen earlier and the calculation method and amount of the instant bonus, it is clear that the amount of the ordinary wage exceeds the amount of the ordinary wage determined by the labor-management agreement as seen below.

Plaintiff 1’s ordinary wage amounted to KRW 2,013,50 in the labor-management agreement on April 2009 (which belongs to the capital-based service team) (=basic wage of KRW 1,843,500 + traffic subsidy of KRW 80,000 + 50,000 in the continuous service allowance + 40,000 in the clean service allowance + 946,750 won in the monthly calculation of the bonus of this case = 946,750 [basic + continuous service allowance + 600%) ± 12] further, the amount of ordinary wage increases to KRW 2,960,250 in the aggregate (=2,013,500 + KRW 946,750).

In the case of Plaintiff 13, the amount of ordinary wages determined by the labor-management agreement on April 2009 (which belongs to the Safety Maintenance Team) is KRW 2,506,100 (=basic pay 2,069,900 + traffic support + KRW 80,000 + 286,200 + continuous service allowances + KRW 70,00). If the monthly calculated amount of the bonus of this case exceeds 1,069,950 [basic pay + continuous service allowances + 600%) ± 12], the amount of ordinary wages increases by approximately KRW 3,576,050 (=2,013,500 + KRW 946,750).

B) Furthermore, we examine the actual rate of increase in wages of the employees of the Defendant Company in the event that the bonus in this case is included in ordinary wages. The Defendant Company and the trade union have made a decision on wage in 2009, which is 5.4% of the basic wage in 2010, 4.1% of the basic wage in 2011, 4.0% of the basic wage in 201, 4.0% of the basic wage in 2012, and 4.0% of the basic wage in 2012, and there is no dispute between

However, in light of the fact that the Defendant Company is bound to work overtime and night work as a company that engages in domestic and foreign air transportation business, etc. on a regular basis, and that if the bonus in this case is included in ordinary wages, the amount of ordinary wages increases by at least 40%, the wage increase rate when the employees of the Defendant Company are paid additional statutory allowances. If the employees of the Defendant Company do not have any part of overtime work or do not exclude those employees, the wage increase rate shall be deemed to exceed 0% in 2009, 2009, 5.4% in 2010, 4.1% in 2010, 4.0% in basic wages in 201, 4.0% in basic wages in 201, 4.0% in basic wages in 2012, and 0% in 2013, as seen above.

In the case of the above plaintiffs 1, 009, the wage increase rate set by the labor-management agreement on April 2009 was 0%, but as above, when calculating the ordinary wage by adding the bonus in this case, 40,580 won should be added to the additional legal allowances, so 2.2% compared to the basic wage rate (=40,580 won ± 1,843,50 won).

In the case of plaintiffs 13, the wage increase rate set by the labor-management agreement on April 2009 was 0%. However, as above, when calculating the ordinary wage by adding the bonus in this case, 295,961 won should be added to the additional legal allowances, so the basic wage rate is 14.3% (=295,961 won ± 2,069,90 won) compared to the basic wage rate is 6%).

5) Whether the plaintiff's financial burden unpredicted to the defendant company would cause serious managerial difficulties to erase the defendant company's financial burden.

The employees of the defendant company claim about 8,00 to 9,000 additional legal allowances as in the case of this case. With respect to the expenses to be borne by the defendant company, the defendant company claimed about 37.3 billion won in the first instance court, and about 8.3 billion won in the future (in cases where flight allowances of the aircraft pilot are recognized as ordinary wages, 15.8 billion won in lump sum, and 3.0 billion won in the future), the defendant company claimed about 62.2 billion won in the trial (in cases where 60 billion won in regular bonus is recognized as ordinary wages, 2009 to 2015), or 104 billion won in the calculation of the amount of the retirement allowances (from 2009 to 2014.4 billion won in the calculation of the amount of the retirement allowances, excluding the estimated amount of the retirement allowances, excluding the estimated amount of 201 billion to 201.4 billion won in the calculation of the amount of the retirement allowances).

The quoted amount of Plaintiffs 27 of the first instance trial is KRW 9,592,026 in total for the period from April 2009 to June 2012. Based on this, when calculating annual statutory allowances, the amount is KRW 9,6630,00 [=the quoted amount of the first instance trial = KRW 99,592,026 / the request period 39 months (from April 2009 to June 2012) x 12 months / 27 Plaintiff 27 x 8,341). In full view of the following: (a) the amount claimed as additional expenses prior to the pronouncement of the en banc Decision 2012Da893999, the amount claimed by the Defendant Company was KRW 8,300,000 annually; and (b) the costs assumed as additional expenses of KRW 1,000,000,000 for one year to which the Plaintiffs had claimed as additional expenses prior to the final revision.

However, even if the amount to be borne by the Defendant Company as additional statutory allowances to its employees is KRW 11.7 billion as the Plaintiffs’ final assertion, it may cause serious managerial difficulties to erase the unexpected financial burden to the Defendant Company, if the Defendant Company pays the above amount and damages for delay to its employees, in light of the circumstances as seen below: (i) the written evidence Nos. 19, 22, 24, 28; and (ii) the written evidence Nos. 20, 23, 24, and 25; and (iii) the written evidence Nos. 20, 24, and 25;

① On May 31, 2010, the Defendant Company concluded with the creditor banks’ conference comprised of 10 banks, such as the Industrial Bank, etc. (hereinafter “the debt group”) and entered into a “self-regulation procedure (joint management”) procedure,” which is a kind of restructuring procedure. The debt group demanded the Defendant Company to meet at least three of the four requirements, including the achievement of management goals, such as operating profit and interest rate, and the fulfillment of management goals, through the improvement of its financial structure, and the presentation of a plan for financing, repayment of obligations, and settlement of accounts base ratio of not more than 40%, through the improvement of its financial structure. The debt group extended the procedure of the self-regulation agreement in 201, 2012, 2013, and 2014, and terminated the procedure of the self-regulation agreement with the Defendant Company on December 2, 2014.

② The public announcement on the termination of the above is that “the Defendant Company continued to raise ordinary external funds after the autonomous agreement, and the claim group determined that the Defendant Company would be capable of operating and financial activities with its own funds.” However, at the time of the termination of the above, the Defendant Company did not satisfy the above requirements, and did not pay a considerable amount of the obligation to the claim group. The Defendant Company still bears the obligation to the claim group, and the claim group has deferred the repayment of the obligation for two years in consideration of the financial situation of the Defendant Company.

③ The cumulative net loss of the Defendant Company reaches 1.1 billion won at the time of the closing of the oral argument. The cumulative net loss at the time of the establishment of the Defendant Company remains more than KRW 2,19.2 billion in 2010,16.4 billion in 201,50 billion in 2008,27.2 billion in 2009,26.3 billion in 203 billion in 2013,43.1 billion in 2013,43.5.2 billion won in 2014, 3.5 billion in 200 million in 205.4 billion in 206, 3.5 billion in 205 billion in 205.4 billion in 206, 3.5 billion in 200 million in 209,87.3 billion in 206, 205 billion in 206, 3.5 billion in 200 million in 205 billion in 2015.

④ The Defendant Company’s debt ratio (the ratio calculated by dividing the total debt amount and fixed debt amount by equity capital) was 662% in 2008, 694% in 2009, 636% in 2010, 550% in 2011, 505% in 2012, 642% in 2013, and 715% in 2014, which did not achieve the target 400% in the above autonomous agreement procedures. Furthermore, when the Defendant Company uses operating leases without using financial leases in which the purchase cost of an aircraft is appropriated as its debt at the time of the introduction of a new aircraft, it appears that the debt ratio would be higher than the above value. Moreover, in this case, in order to order the Defendant Company to pay additional legal allowances to its employees, Defendant Company would have to have to pay more than the above debt ratio than the above debt ratio than the above capital ratio than the above capital ratio than the above amount.

⑤ The Defendant Company’s interest coverage ratio (the ratio calculated by dividing business profits by interest expenses, the ability to repay obligations of an enterprise is shown, and if the ratio is less than 100%, the situation where the company cannot fully pay interest over 250% in 2010 and 179% in 201) is less than 10% in 208, but the total amount of interest reimbursement for the above period is more than 60% in 20% in 2008, -23% in 2009, -105% in 2009, -105% in 209, 89% in 201, - 46% in 2013, - 31% in 2014.

(6) The collapse of an over-point market environment caused by competition with the low cost aviation construction works and the decline in the freight therefrom are one of the major causes of the deterioration of the profitability of the defendant company. In the case of domestic vessels and short-distance international vessels, the deterioration of the profitability of the defendant company seems to be an issue of industrial structure. Therefore, it is difficult to expect that the profitability improvement of the defendant company will be made within the short time.

7) The Defendant Company revised the rules of employment on December 2014, and paid bonuses to only those employed at the time of the payment, and did not pay bonuses to those retired prior to the payment date. The written consent with the consent of the majority of workers, which included that “where the majority of workers agree to the amendment of the rules of employment, the Defendant Company shall pay the workers a bonus of 75% (75% of the bonus) on December 24, 2014 in lump sum. The amount of the labor-management incentive is to substitute for the application of ordinary wages on a regular basis from April 1, 2014 to December 31, 2014.” The above revised rules of employment with the consent of the majority of the employees employed by the Defendant Company (67.7% as of December 1, 2014) and the Defendant Company paid a bonus to the employees who passed the labor-management contract by April 7, 2015, despite the amendment of the above rules of employment by the majority of the employees.

8) The Plaintiffs asserted that the additional statutory allowances of KRW 20.2 billion or KRW 11.7 billion are merely 1% of the annual personnel expenses of the Defendant Company, and thus there is no risk of causing serious managerial difficulties to the Defendant Company. However, in light of the aforementioned circumstances, the said ratio alone cannot be deemed to be merely a small amount of money that cannot affect the Defendant Company separately.

6) Sub-decisions

Therefore, the defendant company's defense that the plaintiffs' claim of this case is against the good faith principle is reasonable.

3. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the appeal of the defendant company shall be accepted, and the part against the defendant company in the judgment of first instance shall be revoked and the plaintiffs' claim corresponding to that part shall be dismissed, and it shall be dismissed as it is so decided as per Disposition.

[Attachment]

Judges Lee Jin-young (Presiding Judge)

Note 1) See attached Table 2 to the judgment of the court of first instance.

Note 2) Plaintiff 13 in attached Table 2 of the judgment of the first instance.

3) The defendant company and the trade union seem to set the rate of increase in wages in comparison with the basic pay before and after 2009.

Note 4) Plaintiff 1 in attached Table 2 of the judgment of the first instance.

5) The defendant company and the trade union seem to set the rate of increase in wages in comparison with the basic pay before and after 2009.

Note 6) Plaintiff 13 in attached Table 2 of the judgment of the first instance.

Note 7) Records 1,361, 1,848(4), 3,183(7),

8) The plaintiffs asserted that even if the aircraft pilot claims that the flight security allowance is ordinary wages, it is unnecessary to consider the flight security allowance as it is rejected by the court.

9) The plaintiffs asserted that even if workers claim additional statutory allowances until March 2012, the defendant company would make a three-year extinctive prescription defense, and that such defense would be accepted by the court, it is unnecessary to consider it.

10) From April 2014 to December 2014, the Plaintiffs asserted that there was no need to consider since April 2014 as follows: (a) there was an agreement between the Defendant Company and the Trade Union to receive the encouragement for success in labor-management in lieu of the payment of additional statutory allowances; and (b) since 2015, the “requirements for Re-employment” was added following the revision of the rules of employment.

Note 11) 46 pages of the briefs dated May 21, 2015

Note 12) 15 pages of the briefs dated June 26, 2015

Note 13) Each of the above arguments between the defendant company and the plaintiffs was sentenced to the above en banc Decision 2012Da89399, and the defendant company intended to make the maximum cost to be borne by the defendant company as much as possible, and the plaintiffs presumed the amount on the premise of each of their own favorable terms with the intent of less than the maximum cost, and there is no evidence to acknowledge that the presumption that each of the parties asserts 600% of the regular bonus is finalized by the judgment or the intention of the parties concerned, except for the part that the court decided

(14) The Defendant Company’s employees are approximately 8,00 to 9,00, and these are classified into 10 occupational groups: (a) airport service, passenger service, operation management, medical service, general support, maintenance, glick service, cargo service, and cargo service. There are significant differences in overtime hours and night service hours depending on occupational group. Accordingly, when paying additional statutory allowances, there are relatively little differences between the amount of payment between the “mandatory service, cargo service, passenger service, and general support service,” and the “maintenance service,” the amount of payment of which exceeds the corresponding time. Moreover, in this case, it is difficult to estimate the amount of additional statutory allowances by presenting the so-called “standard worker” as the basis for the Plaintiffs.