Plaintiff 1 and 180 others (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Sam High-speed Co., Ltd. (Law Firm Shin & Yang, Attorney Hun-tae, Counsel for the defendant-appellant)

July 10, 2009

Incheon District Court Decision 2008Gahap9125 Decided January 22, 2009

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

3. Section 1 of the judgment of the first instance was amended by the reduction of claims in the trial as follows.

The defendant shall pay to the plaintiffs 5% interest per annum from December 8, 2005 to December 2, 2008 and 20% interest per annum from the next day to the day of full payment.

The defendant shall pay to the plaintiffs 5% interest per annum from December 8, 2005 to the delivery date of a copy of the claim and the application for modification of cause, and 20% interest per annum from the next day to the full payment date of the claim (the plaintiff reduced the claim in the trial).

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

(a) Relationship between the Parties

The defendant is a transportation company with the purpose of passenger transport, transportation, etc., and the plaintiffs are the defendant's workers and the members of the defendant's trade union (hereinafter referred to as the "labor union"). The plaintiffs listed in attached Tables 1 through 120 are high-speed bus drivers, and the plaintiffs listed in attached Tables 121 through 181 are the driver of the Incheon-Seoul direct bus (hereinafter referred to as the "high-speed bus").

(b) Wage Agreements, 2004

The Defendant entered into a collective agreement with respect to wages between the union and the union in the name of "wages agreement" with the term of validity from July 1 of each year to June 30 of the following year. The wage agreement in 2004 provided for bonuses as follows.

○ High-speed bus crew members shall be paid 670% per annum of the amount calculated by aggregating the agreed wage of KRW 1,371,160, continuous service allowances, and physical training expenses of KRW 43,000, but 100% per annum in November, 200 and 70% in addition to the calculation period of KRW 1,3,5,7,7,9,9, and 10% per annum in December (1, 204; 10% per December 7, 2004; 70% per December 7, 2004; 10% per December 70, 2004; 1,305; 10% per May 3, 205).

○ The crew of a direct bus operation: 670% per annum of the total amount of wages, excluding each allowance for accident-free, annual, transportation expenses, school expenses, depth, special vacations, and cash boxes, shall be paid, but 110% per annum in December, 10, and 120% per six months, respectively, shall be paid for each calculation period of two months.

(c) Payment of bonuses paid in July 2005 and bonuses paid in August 2005;

The defendant could not enter into a new wage agreement with the labor union until June 30, 2005 when the period of the wage agreement expires in 2004. As to the bonus, the defendant paid the wages prescribed in the wage agreement from July 2005 to October 2004 to the plaintiffs, who are high-speed bus drivers on July 28, 2005, according to the criteria set forth in the wage agreement in 2004, paid the bonus for seven months and the bonus for eight months to the plaintiffs who are direct bus drivers on August 30, 2005, respectively.

(d) Wage Agreements, 2005, and retroactive agreements;

(1) On October 14, 2005, the wage agreement was concluded between the Defendant and the Trade Union on October 14, 2005, and the wage was increased, but the bonus was reduced, and the bonus was determined as follows.

○ High-speed bus crew: 700% per annum of the sum of basic salary 904,970 won, and continuous service allowances shall be paid, but 150% per annum in September 1, 99, each of which shall be paid in November 1, 199 as a unit of two months.

○ Multi-regional bus crew: A fixed amount of KRW 3.7 million shall be paid in six installments per annum, but the calculation period shall be two-months, each of which shall be KRW 600,000 and KRW 700,000 in August.

(2) Upon entering into the wage agreement in 2005, the Defendant and the Trade Union agreed that “The existing light bus crew members from among the existing express bus crew members and the metropolitan bus crew members shall apply the salary and bonus from July 1, 2005 to October 31 of the same year only to the employees, in accordance with the wage agreement in 2005 (the bonus of the existing express bus crew members shall be applied retroactively to the bonus from the July 28, 2005, and the previous light bus crew’s bonus shall be applied retroactively to the bonus from the August 2005, and the previous light bus crew’s bonus from the August 30, 2005).”

(e) Deduction of the difference in bonuses;

(1) As stipulated in the wage agreement and retroactive agreement in 2005, the Defendant calculated the wages from July 1, 2005 to October 31 of the same year, and additionally paid them to the Plaintiffs. However, as of December 7, 2005, the Defendant, without the consent of the Plaintiffs, deducted the difference between the bonus paid in July 2005 and the bonus paid in the same month calculated in accordance with the wage agreement in 2005 from the bonus paid in 2005 to the light bus driver, and the difference between the bonus paid in the same month and the bonus paid in the same month, calculated in accordance with the wage agreement in 2005 from the bonus paid in August 2005 to the light bus driver.

(2) As above, the difference between bonuses that the Defendant deducted from the payment of monthly wages to the Plaintiffs on November 2005 is as indicated in the “request amount” column of the annexed wage settlement table.

[Evidence] Where there is no dispute between the parties, evidence Nos. 1 through 10 (if there is a number, including each number), the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

While the wage agreement was not concluded in 2005, the plaintiffs received the bonus paid in July 2005 (high-speed bus driver) and the bonus paid in August 2005 (high-speed bus driver) in August 2005. The defendant cannot reduce each bonus without the plaintiffs' consent. It is unlawful that the difference between the above bonus already paid by the defendant and the bonus calculated in accordance with the wage agreement in 2005 is deducted from the wages of November 2005 of the plaintiffs. Thus, the defendant is obligated to pay the above deduction amount to the plaintiffs.

B. Defendant

The defendant paid the wages and bonuses that occurred from July 2005 to October 2005 in accordance with the wage agreement and retroactive agreement in 2005 to the plaintiffs, and paid the difference between the increase in wages and bonuses that were calculated in accordance with the wage agreement in 2004 and the wage agreement in 2005. Thus, it is valid, and it cannot be deemed that the bonus paid in July 2005 (high bus driver) and the bonus paid in August 2005 were illegally deducted.

3. Determination

A. In a case where a new collective agreement has not been concluded while conducting collective bargaining before and after the expiry date of the validity of the previous collective agreement, the previous collective agreement remains effective for three months from the expiry date of its validity (Article 32(3) of the Trade Union and Labor Relations Adjustment Act). The wages, retirement allowances, working hours, and other individual labor conditions of the worker, even if the collective agreement is invalidated, still remains as the content of the employment contract for individual workers, unless a new collective agreement, employment rules, which changes the collective agreement or rules of employment, are concluded, made, or obtained the consent of individual workers, and thus regulates the employer and workers (see, e.g., Supreme Court Decisions 2008Da7036, Feb. 12, 2009; 2007Da51758, Dec. 27, 2007). Unless there exist special circumstances that the Plaintiffs received for the effective period on June 30, 2005, it is valid for them to pay a bus engineer for July 20, 2005.

B. As seen above, upon the conclusion of the wage agreement in 2005 on October 14, 2005, the Defendant’s wages were favorable, bonuses were modified disadvantageously, and an agreement was reached between the Defendant and the labor union to apply the wage and bonus in 2005 retroactively to the wage and bonus in 2005 from July 1, 2005 to October 31 of the same year. The Defendant paid the Plaintiffs an additional amount of wage increase from July 2005 to October 10, 2005 under the aforementioned retroactive agreement, while the Defendant paid the Plaintiffs an additional amount of wage increase from July 2005 to July 2005 to which the Plaintiffs received under the wage agreement in 2004 and August 2005 to which the amount exceeding the amount calculated under the wage agreement in 205 were deducted without the Plaintiffs’ consent, and the Defendant’s aforementioned additional amount of wage increase can be viewed as a deduction as to each bonus.

C. According to the above facts, each bonus has already occurred before October 14, 2005 after the end of July 2005 and the payment period for each bonus driver at the end of August 2005 at the latest, as to the bonus amount per two months prior to the month of payment, and each of the above bonuses has already been made before August 14, 2005 after the wage agreement was concluded in 2005. Since the labor union can enter into a collective agreement with the contents of changing the working conditions disadvantageously without the individual consent or authorization of the workers, the labor union's right to request the payment of wages or bonuses already occurred to the workers and received the consent or authorization from the workers, it does not mean that the collective agreement can be made only by means of a disposal act, such as waiver of those bonuses (see Supreme Court Decisions 2001Da41384, Apr. 12, 202; 2009Da36597, Feb. 6, 2009).

D. Therefore, the defendant is obligated to pay to the plaintiffs the amount as stated in the "request amount" table of the annexed wage settlement table, which is the difference in bonuses, which is the difference in bonuses when paying monthly wages for November 2005, and to pay 5% per annum as stipulated in the Civil Act from December 8, 2005 to December 2, 2008, which is the day following the date of service of a copy of the application for purport of claim and change of cause, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

4. Conclusion

Therefore, the plaintiffs' claims shall be accepted with due reasons, and the judgment of the court of first instance is just in conclusion, so the defendant's appeal shall be dismissed, but the judgment of the court of first instance is modified in accordance with the decision of the court of first instance by the reduction of plaintiffs' claims, and it is so decided as per Disposition.

【Plaintiff’s List and Wage Settlement List omitted】

Judges Kim Sang-chul (Presiding Judge) and Kim Sung-chul