207Gaz. 11716 Wages

Attached 1 as shown in the list of plaintiffs (37 persons)

[Judgment of the court below]

B Bank, Inc.

Law Firm Gyeong, Attorney Lee Jae-hoon and Choi Jae-hun, Counsel for the plaintiff-appellant-appellant

July 18, 2008

August 1, 2008

All of the plaintiffs' claims are dismissed.

The costs of lawsuit are assessed against the plaintiffs.

The Defendant stated the amount in the claim column in the list of the claim amount in attached Form 2 and the objection thereto against the Plaintiffs.

It shall pay 20% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of Gap evidence 2 through Gap evidence 4, Eul evidence 1 through Eul evidence 7, and the purport of the whole pleadings as a result of the fact inquiry into the chairman of the BB Bank branch of this court.

A. The defendant is a company that engages in financial business by employing approximately 14,00 full-time workers (as of December 2007), and the plaintiffs are the defendant's employees.

(2) The Defendant’s employees are classified into classes 1 through 6. The Plaintiffs are all executive employees falling under classes 1 through 3, and are called class 1 through 3 as ordinary class employees.

B. The background of the introduction of the Defendant’s wage peak system (1) the branch office of the National Financial Industry Workers’ Union B Bank (hereinafter “this case’s union”) consists of about 80% of the entire employees of the Defendant. Class 3 or higher workers are not eligible to join the instant union.

(2) 32 financial institutions nationwide, and national financial industry trade unions and their affiliated branches shall be July 29, 2004.

In concluding a collective agreement by mountain in 2004, “the employee’s retirement age shall be 58 years, and shall be deemed to be natural retirement when the employee reaches the retirement age. In the case of adopting the wage peak system, the retirement age shall be extended to 59 years, and the specific implementation plan shall be separately determined by the labor and management of the branch office.” The employer and the employer entered into an agreement with the Defendant as a party to the collective agreement by mountain. (3) The Defendant and the instant union agreed to introduce the wage peak system in accordance with the purport of the said collective agreement on October 13, 2004, and agreed to the following matters:

○ Application: A child born in the year in which he/she reaches the age of 55 and whose duty grade M is a general employee or a special officer.

○ Applicable Time: from March 1 of the year in which the age of fifty-five arrives, it shall apply.

○ Application Method

1) Criteria for calculating the basic annual salary

- A general employee: To calculate the annual average basic annual salary of the preceding year of application of the wage peak system by applying the annual payment rate to the standard annual salary.

- extraordinary civil service personnel: It shall be calculated by applying an annual rate of payment based on the class and salary class at the time of application of the wage peak system.

- Annual rate of payment of basic annual salary and method of application 2) job classification: In principle, job classification class for employees subject to application of the wage peak system shall be maintained immediately before the application of the wage peak system.

3) Method of application of the performance-based bonus system: The same performance-based bonus system shall apply to the employees subject to application of the wage peak system: Provided, That if necessary, separate performance-based bonus rates may be applied according to the results of evaluation of grant duties.

4) Extension of retirement age: The retirement age for employees subject to the application of the wage peak system shall be 59 years of age: Provided, That the retirement age for employees of Class E or above who are not subject to the application of the wage peak system shall apply to the retirement age prescribed in

○ Time of enforcement: January 1, 2005

(4) At the time of October 13, 2004, the Trade Union and Labor Relations Adjustment was composed of approximately 80% of the total number of employees 10,390, and a majority of workers below M class and below the total number of employees. At the time of the above agreement, the Defendant did not follow procedures such as separate hearing of opinions or consent to the M class workers who are not qualified to join the Trade Union and Labor Relations Adjustment.

(5) The Defendant enacted the guidelines for the operation of the wage peak system on March 29, 2005 in accordance with the above agreement of the enforcement of the wage peak system and enforced it on March 1, 2005. Specific contents such as the application of the wage peak system, the application period, method, etc. are the same as the contents of the agreement made on October 13, 2004, and the other performance bonus payment criteria, retirement allowances, interim settlement of accounts, etc. were added (hereinafter referred to as the “instant guidelines”).

C. The enforcement period of the wage peak system (1) was to be subject to 34 workers in 2005, which was the first year of the introduction of the wage peak system, and 31 workers in M grade and 4 workers in Grade 2. In 2006, 60 workers were subject to 60 workers in M grade and 2 other workers in Grade 4 or below. (2) The Plaintiffs all were 1951 students in 1951 and reached 55 years in 2006 and were subject to the wage peak system from March 1, 2006. The Defendant paid 70% of the wages in the immediately preceding year to the Plaintiffs in accordance with the instant guidelines.

2. The plaintiffs' assertion

A. The instant guidelines executed by the Defendant from March 1, 2005 constituted an amendment to the rules of employment disadvantageous to workers, with the content that the wages of workers who reach a certain age should be reduced.

B. However, as agreed with the defendant on October 13, 2004 with regard to the enforcement of the wage peak system, the labor union of this case consented to the implementation of the wage peak system for M-class workers who are not eligible to subscribe to the labor union of this case without consent to the implementation of the wage peak system, and agreed only to the workers of Class

C. Even if the labor union of this case consented to the implementation of the wage peak system for M-class workers, considering the fact that M-class workers are not entitled to subscribe to the labor union of this case, the wage system for M-class workers and workers below Grade-4 is dualized, the wage peak system for workers below Grade-4 is practically subject to M-class workers and that it unfairly discriminates against M-class workers with the consent of the labor union of class-based workers below class-4 even though it is practically subject to M-class workers, it is unreasonable to allow M-class workers to give unfavorable treatment to those workers. Therefore, the labor union of this case does not have the right to consent to the implementation of the wage peak system for M

D. Therefore, the instant guidelines do not have effect for the Plaintiffs who are M-class workers, and the Defendant should pay the Plaintiffs wages (the wage reduction portion under the wage peak system) that were not paid from March 2006 to August 2006.

3. Determination

A. According to the above facts as to whether the instant guidelines are disadvantageous changes to the rules of employment (1), it constitutes the rules of employment since the Defendant unilaterally prescribes the wage, which is working conditions. (2) In addition, even though the retirement age has been extended from 58 to 59 years, the wage has been reduced by 70% per year from March 1, 19 of the year in which the age of 55 arrives to the retirement age, but the wage has been reduced by 70% per year, 60%, 40%, 40%, and 58 years from the age of 55 to the age of 58 (30% of the annual salary), compared to the previous wage paid for 55 years from the enforcement of the wage peak system, the wage has been reduced by 210% (70% + 60% of the annual salary to the age of 594) more than that from the age of 55 to the age of 594 to the age of 40% as a whole.

B. As a matter of principle, the employer is entitled to prepare and amend the rules of employment, as to whether the amendment of the rules of employment is effective with the consent of the instant union (1). Therefore, the employer may prepare and amend the rules of employment according to its intent. However, in order to unilaterally modify the existing rules of employment to workers at a disadvantage due to the amendment of the rules of employment, the consent is required by collective decision-making method of the workers group to

The consent method refers to the majority of the workers who are subject to the existing rules of employment if there is a labor union consisting of a majority of the workers, and if there is no such labor union, the majority of the workers in this context must be the consent of a majority of the workers' meeting. (Supreme Court Decisions 2005Da21494 Decided November 10, 2005; 2008.)

2. (2) According to the above facts, the subject of the instant guidelines is a child born in the year in which 55 years of age arrives and is a person of class M or below. Therefore, the wage peak system shall apply when not only the employee who has already reached the age of 55 but also the employee who has not reached the age of 55 at the time when the wage peak system was implemented but also the employee who has not reached the age of 55 at that time reaches the age of 55. In other words, the employee who is at a disadvantage due to the implementation of the wage peak system shall be all those workers below M or below, and if there is a trade union organized by a majority of all workers below M or below, the trade union becomes the subject of consent to the implementation of the wage peak system, and if there is the consent of the trade union, the instant guidelines shall be all workers below M

Any person shall be lawful and effective against him/her.

(3) The fact that the labor union of this case was organized by a majority of all workers below M grade, the labor union of this case and the defendant agreed to implement the wage peak system for workers below M grade on October 13, 2004, and accordingly, the defendant enacted and implemented the guidelines of this case as mentioned above (the plaintiffs' assertion that the labor union of this case did not consent to the implementation of the wage peak system for M grade workers is not accepted). Ultimately, the guidelines of this case are lawful and valid for all workers below M grade with the consent of the labor union of this case, and it is also true that M grade workers are not qualified to join the labor union of this case.

C. With respect to the assertion that there is no right to consent to M-class workers, the instant guidance is commonly applied to all workers below M-class M-based workers. As such, a group below M-based workers becomes the subject of consent, and the fact that the instant guidance consists of a majority of the entire workers below M-class workers below M-based workers as seen earlier. It cannot be said that the instant guidance is practically intended for M-based workers, and that the instant guidance is effective as the consent to the instant labor union does not constitute unfair discrimination against M-class workers. (2) If workers are classified into several groups in the workplace and the separate rules of employment are applied to each group of workers and working conditions are different, only the group of workers subject to changes in the rules of employment is the subject of consent, and all workers, including workers who are not subject to changes, are not the subject of consent. However, since the Plaintiffs’ evidence Nos. 3 through 4 are stated in the respective grades M-based workers above M-based workers’ salary pay, it cannot be deemed that the Plaintiffs’ wage provision does not apply to those workers below M-class-based workers’ wage system.

4. Conclusion

Thus, the plaintiffs' claims are dismissed for all reasons.

Judges Park Jae-young

Judges Guide-Council

Judges Kim Gin-jin