[1] Whether a trade union may conduct an act such as the return, renunciation, and postponement of payment of a wage that has been actually paid or has already been granted a right to claim payment with an employer without an individual consent or authorization of the worker (negative), and whether such a legal principle applies likewise to cases where a trade union has agreed to the effect that if a trade union is to enter into a future collective agreement with an employer, the terms and conditions of the labor contract shall be retroactively applied at a specific point after the conclusion of the collective agreement to change the working conditions of the wage to the disadvantage of the worker (affirmative)

[2] The case holding that in a case where Gap corporation engaged in a general taxi passenger transport business agreed on December 27, 2007, which was established on December 27, 2007 under Article 6 (5) of the Minimum Wage Act (amended by Act No. 8520, Dec. 27, 2007; however, the company shall pay the difference of the monthly wage raised retroactively to the employee, and the employee shall deposit the difference retroactively, and upon the prolonged collective bargaining, Gap corporation paid the wages calculated under the previous wage agreement to taxi drivers Eul et al., and thereafter, Gap company and its labor union concluded a wage agreement with the taxi company Gap et al. to return the increased amount of taxi commission retroactively to Eul et al. without the consent or authorization of individual employees, the obligation to pay the increased amount of taxi commission pursuant to the above agreement and the wage agreement, etc., which was concluded by Gap company and its labor union, does not retroactively affect the obligation to pay taxi commission to Eul et al.

[1] Articles 29 and 33 of the Trade Union and Labor Relations Adjustment Act / [2] Articles 29 and 33 of the Trade Union and Labor Relations Adjustment Act; Article 6(5) of the Minimum Wage Act

[1] Supreme Court Decision 99Da67536 Decided September 29, 200 (Gong2000Ha, 2195) Supreme Court Decision 2009Da76317 Decided January 28, 2010 (Gong2010Sang, 418) Supreme Court Decision 2015Da60207 Decided October 18, 2019 (Gong2019Ha, 2100)

Shin Jin Transportation Co., Ltd. (Attorneys Hong Hob et al., Counsel for the defendant-appellant)

Defendant 1 and two others (Attorney Kim Il-sung, Counsel for the defendant-appellant)

Jeonju District Court Decision 2014Na2412 decided June 29, 2016

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

Since this case is a small amount case to which the Trial of Small Claims Act applies, only if there is a reason prescribed in Article 3 of the Act, a final appeal may be filed with the Supreme Court.

Of the grounds of appeal, the lower court, which recognized the existence of the instant retroactive application agreement, erred in the rules of evidence, or erred in the misapprehension of legal principles as to the interpretation of the collective agreement in 2011, does not constitute any of the above grounds, and thus, cannot be a legitimate ground of appeal.

2. Regarding ground of appeal No. 2

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Plaintiff, a company running a general taxi transport business in Jeonju-si, had its taxi drivers pay a certain amount of the daily total taxi earnings to the Plaintiff and operated the so-called taxi commission scheme, which is the method of taxi drivers’ income. According to the wage agreement concluded on October 24, 2008 between 2008 and the Plaintiff, contractual work hours were determined as “six hours and forty hours a day, forty-eight hours a week, forty-seven,00 won a day, or seventy million won a day, and ninety-five million won a day taxi commission was determined as “six hours and forty-five thousand won a day, and ninety-five million won a day, and ninety-five million won a day, and ninety-five million won in the case of the first day.”

(2) Article 6(5) of the Minimum Wage Act, newly established on December 27, 2007, limited the scope of the wages included in the minimum wage of taxi drivers to “the wages excluding the wages calculated on the basis of the output” so that excess transportation income cannot be included in the minimum wage. The enforcement period was July 1, 2010 in the case of the region at the time of implementation. Accordingly, the Plaintiff, who is running a business at the Jeonju City, was obliged to pay wages above the minimum wage level solely on the fixed wage for contractual work hours from July 1, 2010.

(3) The Plaintiff and the instant trade union were negotiated to enter into a wage agreement from June 29, 2010 to 2010. Around August 2010, the Plaintiff and the instant trade union agreed to the effect that “on the basis of the Addenda to the Minimum Wage Act, both parties would be subject to the application of Article 6(5) of the same Act from July 1, 2010 to the point of conclusion of an organization (wages) agreement that includes working conditions (wages) and transport income, etc. shall be subject to the retroactive application from July 1, 2010,” provided that “On the other hand, each company shall pay the increased difference of monthly wages retroactively to each employee, and each employee shall deposit the increased difference of transport income retroactively to each company” (hereinafter “instant retroactive application agreement”).

(4) After that, upon the prolonged collective bargaining, the Plaintiff paid the Defendants wages (the same shall apply to each of the pertinent amounts stated in the “actual payment as of July 2008” in the attached Table of the original judgment) calculated in accordance with the wage agreement in 2008 from July 201 to the part of the Defendants.

(5) The Plaintiff and the instant trade union concluded a wage agreement on July 10, 201, and concluded the wage agreement in September 201 (hereinafter “the wage agreement in 2011”) on September 9, 201 through negotiations again. Examining the contents of the wage agreement in 2011, contractual work hours are five hours per day (4 hours less than one year and 20 minutes) and thirty hours per week, which are reduced compared to the previous one, and the daily taxi commission was increased by 4,000 won, and the effective period is “from August 1, 201 to July 31, 2012.” However, the instant trade union did not obtain the consent or right of consent of individual workers, including the Defendants, while entering into the wage agreement in 2011.

(6) The Defendants worked as taxi drivers belonging to the Plaintiff from July 2010 to July 201.

B. The Plaintiff asserted that the taxi commission that the Defendants are obligated to pay to the Plaintiff under the wage agreement in 2011 was increased by KRW 4,000 per day, and that the instant retroactive application agreement and the wage agreement in 2011 was retroactively applied from July 1, 2010, and that the Defendants are obligated to pay to the Plaintiff an amount calculated by multiplying the actual number of working days from July 1, 201 to July 31, 201 by the amount of KRW 4,000 per day taxi commission. The Plaintiff filed the instant lawsuit.

C. The lower court accepted the Plaintiff’s claim for the increase in taxi commission for the following reasons.

(1) It is difficult to view that the instant trade union’s conclusion of the instant retroactive application agreement deviates from the trade union’s purpose by significantly determining the reasonableness, and it is also difficult to view it as an act of disposal of wages for which the right to claim the payment has already occurred. Therefore, even if the wage agreement in 2011 stipulates the effective period as from August 1, 201, it can be recognized that the content of the wage agreement in 2011, based on the instant retroactive application agreement, can be retroactively applied from July 1, 2010.

(2) As wages actually or specifically paid or the right to claim the payment was transferred to the employee’s private property area and are entrusted to the employee’s disposition, insofar as the labor union does not obtain an individual consent or authorization from the employee, a collective agreement between the employer cannot be conducted, such as waiver or postponement of payment. Thus, allowing the employee to return the wages already paid under a collective agreement to the employee under the said collective agreement shall be deemed null and void unless there is an individual consent or authorization of the employee. The legal principle of the Supreme Court Decision 2009Da76317 Decided January 28, 2010, which states that the same applies retroactively to the instant case.

D. However, the above determination by the lower court is difficult to accept as it is.

(1) As wages actually or specifically paid or the right to claim payment has already been transferred to the worker’s private property area and is entrusted to the worker’s disposition, a trade union may not conduct any act such as return, renunciation, or postponement of payment, solely based on a collective agreement between the employer and the employer (see Supreme Court Decisions 9Da67536, Sep. 29, 2000; 2009Da76317, Jan. 28, 2010). Such a legal doctrine likewise applies to cases where a trade union entered into a collective agreement with the employer with the content that the labor union would retroactively change the working conditions of the wages already paid to the worker in accordance with the contract to the disadvantage of the employer when the agreement is concluded in the future (see Supreme Court Decision 2015Da60207, Oct. 18, 2019).

(2) Examining the facts as seen earlier in accordance with the aforementioned legal doctrine, concluding the wage agreement in 2011 with the content that the instant trade union did not exclude the validity of the agreement on retroactive application and changed the working conditions of the wage disadvantageously to the employee without excluding the validity of the agreement on retroactive application, constitutes an act of disposal that actually results in the return of the wage already paid to the employee, and thus, the effect of retroactive application does not occur unless the consent or authorization of individual employees, including the Defendants, is obtained.

(3) Ultimately, the lower court determined otherwise, although the Defendants’ obligation to pay the increased taxi commission was not retroactively incurred pursuant to the instant retroactive application agreement concluded between the instant trade union and the Plaintiff and the instant wage agreement in 2011, and the Defendants’ obligation to pay the increased taxi commission. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the application of the principle of autonomy of the agreement or the normative effect of the collective agreement, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)