[1] In a case where the flight company provided basic pay to the flight crew participating in the strike and uniformly deducted basic pay for the strike period regardless of whether the strike period includes a non-day, the case holding that the above flight company bears the burden of asserting and proving that the non-regular day included in the strike period falls under the "paid holiday" and is exempted from the duty to pay wages in accordance with the principle of no labor-free pay, where the above flight crew sought payment of basic pay to the flight crew who participated in the strike

[2] The case holding that, in light of Article 54 of the former Labor Standards Act and Article 54 of the former Labor Standards Act, various non-regular days that an aviation company grants to flight crew members belonging to the company constitutes "days" as stipulated under the Labor Standards Act, one day per week during the non-regular hours is "jun hours" and the remaining non-regular days are "non-regular days"

[3] The case holding that in a case where the above flight crew sought basic pay for the deduction of the basic salary equivalent to the period of the strike uniformly regardless of whether the basic salary is included in the period of the strike while paying the flight crew participating in the four-day strike to the flight crew, the above flight company should pay the above flight crew the basic salary equivalent to the non-regular holiday during the period of the strike

[1] In a case where the flight crew participating in a strike offered basic salary equivalent to the "basic salary" out of total wages to the flight crew, and uniformly deducted basic salary corresponding to the strike period regardless of whether the strike period includes non-regular wages, the case holding that the above flight crew is liable to assert and prove that the non-regular days included in the strike period falls under the category of "repaid holiday" and is exempted from the duty to pay wages in accordance with the principle of non-labor-free pay.

[2] The case holding that, in light of Article 54 of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007), the first day of a week among the non-regular days constitutes "day off" and the remaining non-day days are "day off" as stipulated under the Labor Standards Act.

[3] The case holding that, in the case where the above flight company sought basic pay for the deduction of basic salary equivalent to the "basic salary" among the total wages for the flight crew participating in the four-day strike, regardless of whether the number of days worked during the strike includes non-regular days, the above flight crew's various non-regular days included in the strike period can be deemed as a "paid holiday" which is granted one week to the above flight crew who are workers, and the remaining five and six days can be deemed as a " unpaid holiday", and therefore, the above flight company, claiming the deduction of basic salary for paid holidays during the strike period, is liable to claim and prove that the above flight crew's non-regular working day included in the strike period constitutes a "regular holiday", and that the remaining non-regular working day should not be deemed as a "non-regular working day," and that the remaining non-regular working day should not be deemed as a "non-regular working day," and that the remaining non-regular working day should not be deemed as a "non-regular working day," and that the remaining non-regular working day should be considered as an "non work day."

[1] Article 288 of the Civil Procedure Act, Article 44(1) of the Trade Union and Labor Relations Adjustment Act, Article 42(1) of the former Labor Standards Act (amended by Act No. 8293, Jan. 26, 2007); Article 18 of the former Labor Standards Act (amended by Act No. 8372, Apr. 11, 2007; see Articles 2(1)5 and 54 of the current Act; Article 25 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 20142, Jun. 29, 2007; see Article 30 of the current Act); Article 44(1) of the Labor Standards Act; Article 25 of the former Enforcement Decree of the Labor Standards Act (amended by Act No. 20145, Apr. 27, 2007; see Article 205(2) of the former Labor Standards Act) / [2] Article 105(2 of the former Labor Standards Act (see Article 407(2) of the current Act

Plaintiff 1 and 149 others (Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

Korea Air Co., Ltd. (Law Firm Square, Attorneys Yu-hee et al., Counsel for the defendant-appellant)

November 19, 2010

1. The defendant shall pay to the plaintiffs other than the plaintiffs listed in the annexed list Nos. 108, 109, 111, 119, and 142 of the same list among the plaintiffs listed in the annexed list No. 1, the sum of the amount of discount stated in the annexed Table No. 10 of the "The Statement of Claim for Wages" No. 4, the corresponding amount of the corresponding amount and each of the above amounts shall be 6% per annum from January 22, 2006 to December 17, 2010, and 20% per annum from the next day to the day of complete payment.

2. Of the plaintiffs listed in the separate sheet Nos. 108, 109, 111, 119, and 142, the remaining plaintiffs' claims except the plaintiffs listed in the same list No. 108, 109, 111, 119, and 142 are dismissed, respectively.

3. Of the costs of lawsuit, the separate list 2, 4, 6, 8, 12, 13, 17, 19, 21, 23 through 27, 30, 42, 45, 47, 49, 51, 52, 54 through 56, 67, 69, 72, 74, 75, 78 through 82, 84, 85, 91 through 94, 96 through 106, 106, 138, 12 through 127, 137, 148, 147, 148, 147, 166, 37, 148, 147, 147, 147, 147, 155, 146, 147, 147, 166

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs listed in the separate sheet No. 9 of attached Table 1 "the sum of the claims" stated in attached Table 4 "the statement of claims by the plaintiffs" to the plaintiffs, 6% per annum from January 22, 2006 to October 7, 2010, and 20% per annum from the next day to the date of delivery of a copy of the application for modification of the purport of the claim by October 7, 2010.

1. Basic facts

A. Status of the parties

The defendant is a company running air transport business, etc., and the plaintiffs are members of the Korea Air Operator's Trade Union (hereinafter referred to as the "this case's Trade Union") who are employed by the defendant and work as flight crew.

B. Working hours, holidays, and wage systems of flight crew employed by the defendant;

(1) Pursuant to Article 49 of the former Labor Standards Act (wholly amended by Act No. 6974, Sep. 15, 2003; hereinafter “former Labor Standards Act”) and subparagraph 1 of Article 1 of the Addenda, the Defendant applied the so-called 40-hour labor system from July 1, 2004 as to 1,00 full-time workers. The Defendant and the labor union of this case, on the basis of the above revision of legal working hours, have been applying the collective agreement of 1,000 to 30 hours from April 1, 200 to 205 (the effective period: from April 1, 2003 to March 31, 2005; hereinafter “former Collective Agreement of 2003”) on the basis of Article 56(1) of the former Labor Standards Act (the effective period: 4 hours from April 1, 2005 to 4 hours before the revision of the Labor Standards Act, were set at 5 hours per week 4 hours per week.

(2) According to Article 1.4.1 of the Rules of Employment of the Defendant (amended on September 1, 2005; hereinafter “Rules of Employment of the Defendant”), the Defendant grants his employees paid holidays, legal holidays, etc. Meanwhile, Article 58 of the collective agreement in 2003 provides for the restriction on the operation of flight hours under the relevant provisions, such as the Aviation Act and the Aviation Technical Standards, and Article 8 of the collective agreement in 2003 provides for the restriction on the operation of flight hours. Paragraph (8) of the same Article provides that “A flight crew shall have the basis for the limitation on the operation of flight hours on the basis of the mother base (D-Off; hereinafter “non-number”) for at least eight days in one month including the number of the mother base holidays stipulated in subparagraph 1 above. However, if the Labor Standards Act is revised and the company implements a five-day work-day work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related work-related day.”

(3) The monthly contractual work hours of the flight crew belonging to the defendant are as follows. ① First, the flight crew applies for the petition fee (Re-O) and annual leave (ALV), and the petition leave (SLV) on a monthly basis; ② the defendant sets up a flight schedule, such as the flight and air, taking into account the above details of the flight of the flight crew and the relevant laws and regulations and collective agreement on the flight operation of the aircraft, and grants flight after the flight schedule (Auto-Tged DNA-O). ③ The date on which the above working schedule is set, the petition fee (ALV), the filing date (ALV), the petition leave (ATS), the date on which the above working schedule is set, and the remainder of the days other than those set in the ATSO, the defendant shall grant at least 10 days off a 1 month-day leave by a non-O (O) or handle it by an automatic computer system.

(4) Meanwhile, the wages of flight crew belonging to the Defendant, including the Plaintiffs, consisting of “basic pay” and “flight allowance.” Among them, “basic pay” as determined according to their respective grades and salary grades, and “aviation security allowance” and “time allowance” as paid to all flight crew at least 40,000 per month. “Flight allowance” consists of “general flight allowance paid according to flight hours” and “long-term flight allowance” paid in addition to 50% per annum for the number of continuous flight hours exceeding 8 hours per hour, and there is “inbound allowance” that is paid by 80% per year based on other basic pay.

(5) In particular, with respect to flight allowances, Article 4(3) of the Wage Convention concluded between the defendant and the Trade Union of this case (amended by January 1, 2006; hereinafter “the Wage Convention”) provides that “where the Actual flight hours are not less than 30 hours, the flight allowances shall be paid for 75 hours regardless of actual flight hours for not less than 75 hours.” According to Article 5 of the said Wage Convention, the flight allowances shall be paid for 75 hours in the following month in the concept of “Advance payment,” and the settlement amount shall be calculated by calculating the actual flight hours in the following month, and if the monthly flight hours exceed 75 hours, the calculation of the settlement amount shall be made by adding 70% of the unit price per flight allowance table for not more than 80 hours, and 100% of the unit price per flight allowance for more than 80 hours to be paid before the implementation of the said Wage Convention (hereinafter referred to as the “Convention”).

C. The strike of the Trade Union of this case and the process of wage payment on January 2006

(1) From October 17, 2005, after entering into a collective agreement in 2005, the Trade Union and Labor started negotiations in 2005 to enter into a wage agreement under Article 44 of the said collective agreement with the Defendant on 11 occasions and continued to enter into the strike from December 8, 2001 to November 17 of the said year as the agreement was not reached, and the strike continued for 4 days (hereinafter “the strike period in this case”).

(2) On the other hand, as the strike of this case occurred, on December 7, 2005, immediately before the strike, the Defendant issued an order to prohibit overseas business trips during the industrial action period and temporarily suspend the implementation of leave during the above period pursuant to Article 1.4.9 of the Defendant’s Rules of Employment (on December 7, 2005, prior to the strike). Nevertheless, all of the Plaintiffs participated in the strike as a member of the union of this case, and among them, the Plaintiffs listed in Nos. 1 to 105 of the “List of Plaintiffs” No. 1 to 105 were those with more than 30 hours the actual flight period of December 205.

(3) After that, in calculating the amount of wages for the plaintiffs on January 2006, the defendant calculated the amount of wages for the period of the strike (ALV), calculated the flight allowance based on the actual flight hours on December 2005, not the flight allowance for 75 hours as guaranteed under the Wage Convention, and paid flight allowance to the plaintiffs on December 27, 2005 after deducting the basic salary equivalent to the period of the strike for 4 days from absence (ABS) and uniformly deducted the amount of the flight allowance from the basic flight allowance for 206 days after deducting the difference between the flight allowance and the flight allowance calculated on December 17, 2005, and the basic flight allowance for 2005.1.206.75% of the amount of the flight allowance calculated on December 27, 2005.

(d) the relevant provisions;

The provisions of the Labor Standards Act, collective agreements, wage agreements, rules of employment, wage regulations, etc. related to the instant case are as shown in attached Table 2.

[Basis] Facts without dispute; Gap evidence 1 through 4; Gap evidence 5-1, 2; Gap evidence 9-1 through 18, 20 through 136, 138 through 151; Eul evidence 1; Eul evidence 2-1, 2, Eul evidence 5, and 6; the purport of the whole pleadings;

2. The parties' assertion

A. The plaintiffs' assertion

(1) argument as to basic wage claims (attached Table 1 Nos. 1 through 18, 20 through 96, 106 through 150)

The so-called “the principle of non-labor-free wages” that does not pay wages for the period of strike to workers participating in the strike refers to that workers do not pay wages that should be paid as compensation for the provision of labor corresponding to the failure to provide labor due to the strike. However, the above plaintiffs are obliged to pay wages corresponding to the non-regular wages included in the period of the strike in this case by treating the same as the absence of work hours. Although the above plaintiffs were organized during the strike in this case, or were determined on the day of annual leave (ALV), the above plaintiffs do not have any duty to provide labor for contractual work hours since they do not have any duty to provide labor for the defendant from the beginning on the day of the strike in various non-regular days (RDO, ATSO, ADO, ADO, or DO). Thus, the defendant cannot refuse to pay wages corresponding to the non-regular wages included in the period of the strike in this case. Accordingly, the defendant's obligation to claim wages for basic wages of the above plaintiffs on December 1, 2006, which is deducted from the above plaintiffs' claim for delay damages.

(2) The argument regarding the claim for flight allowance (attached Form 1 Nos. 1 to 105)

The defendant's pilot belonging to the defendant can receive flight allowances for 75 hours only when the actual flight hours fall short of 75 hours per month. Thus, the defendant shall pay flight allowances for 75 hours as a matter of course to the pilot who actually committed an operation for 30 hours or more on December 2, 2005, including the strike period of this case. However, the defendant is obliged to pay the above plaintiffs who participated in the strike an amount calculated by multiplying the actual flight hours by the unit price of flight allowances during the actual flight hours, on the ground that the defendant's payment exception to the flight allowances for 75 hours or more falls under "off of absence or rejection of an order to work on board." The defendant's flight allowances and overtime flight allowances calculated as above are calculated as flight allowances and deducted from the flight allowances for 75 hours already paid on December 205 by the difference between the total amount of flight allowances calculated as well as the amount of 75 hours already paid on January 206. Therefore, the defendant is obligated to pay the above plaintiffs the difference of the above plaintiffs to the above plaintiffs as above stated "7" column of the plaintiff' claim column 4" and delay damages.

B. Defendant’s assertion

(1) As to the basic wage claim (the Plaintiffs set out in Nos. 1 through 18, 20 through 96, 106 through 150)

Various non-regular days (RDO, ATC, ADO, and DO) that the Defendant grants to its flight crew members constitute paid holidays, including weekly holidays, due to the nature of aviation operations, and even if paid holidays are included during the strike period, employees cannot seek wage payment for such paid holidays. Thus, it is justifiable that the Defendant’s treatment of various non-regular days included in the strike period of this case by absence from work and deducts the basic salary corresponding thereto from the wage of January 2006.

(2) On the claim for flight allowance (the plaintiffs listed in Nos. 1 to 105 of the attached Table 1)

Article 4(3)4 of the Wage Convention of 2006 provides that “In the event of absence from work or refusal to give an order to work on board,” as an exception to the guarantee of an overtime allowance for 75 hours, and Article 1.4.9 of the Rules of Employment of the Defendant provides that “a company may order an employee to work on a holiday or leave when on duty.” However, in order to organize an emergency flight schedule for a strike on December 7, 2005, the Defendant requested all members including the above Plaintiffs to notify all members of whether he/she wishes to work on a holiday by December 15:00, 205, and provided all employees with an order to completely prohibit an overseas business trip during the strike and temporarily suspend the implementation of leave allowances. Thus, the aforementioned Plaintiffs’ participation in the strike on the working day is absent from work on the working day without permission from the employer, and thus, constitutes a case where the Defendant’s legitimate flight order was absent from work on the working day or refuses to work on the working day without permission, and thus, constitutes an exception order that corresponds to 2505 hours.

3. Determination

A. Determination as to basic wage claims (the plaintiffs set out in Nos. 1 through 18, 20 through 96, 106 through 150)

In full view of the above basic facts and the arguments of the parties, the issue that is the premise in the judgment on the claim of basic salary is as follows: ① the burden of proof in the claim of basic salary in this case; ② the legal character of the visa that the defendant attached to the above plaintiffs; ③ whether the visa of the above plaintiffs included in the period of strike in this case constitutes paid holiday. Thus, the above issues are examined first, and then the above claims of the above plaintiffs are judged based on this.

(1) Distribution of the burden of proof in the claim of basic salary in this case

In a lawsuit seeking the payment of wages, an employee must prove the fact of concluding a labor contract and the amount of wages, and an employer must prove the grounds for disability or extinguishment in order to avoid the payment thereof. In particular, the basic salary that the above plaintiffs received from the defendant belongs to the "basic salary" out of the total amount of wages, which is determined according to their respective grades and salary classes, and the above plaintiffs' claim against the defendant is "basic salary for December 2005, which corresponds to the number of days during which each party's base salary was included in the strike period" and it is sufficient that the above plaintiffs asserted and increase their labor contract relations with the defendant and the basic salary amount based on their grades and salary grades. On the other hand, the defendant's claim for basic salary should be deducted from the basic salary grade of January 2006 to the above plaintiffs' basic salary grade of December 12, 2005 to the point that the above plaintiffs' basic salary grade was excessive due to the above plaintiffs' participation in the business during the strike period, which constitutes grounds for termination of the right."

(2) The legal nature of the visa granted by the defendant to the above plaintiffs

(A) The labor contract relationship between the defendant and the flight crew belonging to the defendant is distinct from that of ordinary workers because of the characteristics of air navigation services. In other words, the working hours of the flight crew are basically determined according to the flight schedule assigned by the defendant to the flight crew in question, and in the case of international navigation, the time of flight is longer longer longer than one time, and the staying schedule in the open port is also required. This is why the aircraft operation-related laws and regulations, such as the Aviation Act and the flight technology standards, compel the flight company like the defendant to grant minimum break time to its pilots for the purpose of maintaining the health and operation safety by maintaining the aircraft pilot's ability. Accordingly, there is no fixed working hours, such as ordinary workers, and there is no time of business or operation (the fact that the defendant operates a flexible working hours system under the agreement with the labor union of this case is attributable to the characteristics of the above aviation service).

(B) Meanwhile, the Labor Standards Act provides that “an employer shall grant workers at least once a week’s average paid holiday,” and such weekly holiday system applies to all workers unless an employee is subject to the application of the Act. The weekly holiday must be always given at least one day a week, and the total monthly holiday shall not be permitted to be averaged four days. In addition, in the interpretation of the term “days”, the weekly holiday should be granted 24 hours, and the weekly holiday shall be from 0:00 p.m. to 12:00 p.m. to 0:0 p.m. to 12:00 p.m., all detentions of the employer.

However, even before the enforcement of the collective agreement in 2005, the Defendant did not grant weekly holidays to employees under its jurisdiction due to the characteristics of aviation operation affairs as seen earlier. Moreover, as prescribed in Article 58(8) of the collective agreement in 2003 and Article 54(9) of the collective agreement in 2005, the Defendant granted the flight crew under its jurisdiction at least eight or ten (8) days’ work days including the number of total base break days to the flight crew under its jurisdiction, and the said day of absence is all kinds of non-regular days (RDO,TDO, ADO, and DO) as seen in the above basic facts (i.e., “DO on the 10th day of each month” as stipulated in Article 12(6) of the collective agreement in 205, and (ii) as seen earlier, it is clear that the Defendant would normally grant the flight crew under its jurisdiction at least one (1) week from the date of arrival of each of the above collective agreement.

(3) Whether the visa is a paid holiday or unpaid holiday

(A) Even if a non-regular holiday falls under a holiday, Article 54 of the former Labor Standards Act merely provides that “one or more paid holidays shall be granted on an average per week,” and Article 25 of the former Enforcement Decree of the Labor Standards Act (wholly amended by Presidential Decree No. 18158, Dec. 11, 2003; Presidential Decree No. 20142, Jun. 29, 2007) provides that “the paid holiday shall be granted to a person with perfect attendance of contractual working days per week,” thereby setting the requirements for granting paid holidays (see Supreme Court Decision 2002Du2857, Jun. 25, 2004). If an employer is obligated to grant paid holidays more than one week per week to a worker, it is also possible to grant two or more paid holidays per week and exclude the remainder of paid holidays from the duty to do so.

(B) As to the instant case, as seen earlier, the Defendant’s flight crew did not grant a certain weekly holiday under the weekly work system of 44 hours per week, regardless of their work characteristics. The Defendant, as to the number of hours per month, treated the rest days fixed for petition hours, annual work hours, or for which the service schedule is not set, as non-regular, 8 hours per month (at least 10 days per week under the weekly work system). However, it is difficult to view that the Defendant, under the weekly work system of 44 hours per week, provided that the period of one week to provide work to an employer is 5 hours per week, 4 hours per week, and 4 hours per week, and that the Defendant, under the weekly work system of 14 hours per week, 5 hours per week per week and 4 hours per paid holiday hours per week, was still subject to the Rules of Employment for 20 days per week, even if it appears to have been given to employees under the characteristics of the aviation work x 4 hours per week’s average work hours per week.

(4) Whether a non-regular holiday under a weekly 40-hour work system has been changed to a paid holiday

Even if a part of an unpaid holiday is included in the schedule granted by the Defendant to its flight crew under the weekly 44-hour work system, the Defendant reduced the standard work hours from July 1, 2004, the enforcement date of the former Labor Standards Act, to 40 hours a week, and thus, it did not change the nature of the said visa under the weekly 40-hour work system.

(A) All wages refer to the remuneration that an employee provides labor under the employer’s direction as remuneration for work. As such, the so-called livelihood security wage that takes place on the basis of the status as an employee without a premise of actual labor (see Supreme Court en banc Decision 94Da26721, Dec. 21, 1995). Therefore, even if the duty to provide labor is exempted and the actual provision of labor does not exist, the so-called “paid holiday” in which wages are paid is recognized only when there are explicit provisions in the relevant statutes, such as Article 54 of the former Labor Standards Act, or where there are separate provisions in collective agreements, rules of employment, employment, labor contracts, etc. Therefore, in case of ordinary workers, the standard working hours are reduced from 44 hours a week to 40 hours a week, and even if the day is excluded from the contractual working days, the day must be naturally determined by the rules of employment, labor contracts, etc., unless otherwise stipulated in the collective agreement, etc.

(B) As to the instant case, the following circumstances, which can be seen by the overall purport of the statements and arguments as stated in Gap evidence Nos. 1, 8, Eul evidence No. 1, 5, and 6 as to the instant case: ① Even if the standard working hours of the flight crew belonging to the defendant cannot be applied as they are to the flight crew without any fixed weekly working hours, it cannot be said that the date falling within the previous non-regular working hours is automatically changed to the paid holiday No. 1, 4, and the minimum working hours of No. 1, 5, and 6 were reduced to 40 hours per week, while the standard working hours of the flight crew are reduced to 40 hours per week and the minimum working hours of No. 1, 40 days per week per week during the previous non-regular paid holiday No. 1, 2005 were changed to the minimum working hours of No. 4,000 hours per week after the introduction of the standard working hours of No. 52(1), and the Defendant still did not stipulate the remaining number of no monthly working hours per two months per week.

(5) The defendant's burden of proving the visa of the above plaintiffs included in the period of the strike of this case

(A) Even if a worker’s principal right and duty to provide labor is suspended during the period of his/her leave of absence or in the same same manner during the strike period during which the worker’s claim for wages does not occur, he/she may not seek payment of wages on paid holidays (see, e.g., Supreme Court Decision 2007Da73277, Dec. 24, 2009). However, even according to the aforementioned legal doctrine, the Defendant can only deduct wages on paid holidays included in the period of his/her strike from the basic salary paid in the form of monthly salary, and the basic salary does not include wages on paid holidays, even if his/her unpaid holiday is included during the strike period (see Supreme Court Decision 2008Da3399, Jul. 15, 2010).

However, as seen earlier, the aforementioned plaintiffs' various non-regular days (RDR, ATRO, ADO, and DO) included in the period of the strike of this case may constitute paid holidays granted to the above plaintiffs a week and may constitute the rest of 5-6 days unpaid holidays. As such, the defendant who asserts the basic rate deduction of paid holidays on the ground that the paid holidays included the paid holidays during the period of the strike of this case constitutes "the non-paid holiday of the above plaintiffs included in the period of the strike of this case" is responsible for asserting and proving that the above plaintiffs' basic rate deduction of paid holidays constitutes "the paid holiday of this case". Furthermore, since the Labor Standards Act does not provide for the nature that the employer grants basically to workers, and it does not necessarily mean that it is not possible to grant weekly holidays due to the nature of the aviation service (in this case, it stated before the fact that the defendant cannot grant paid holidays on a fixed day due to the nature of the aviation service, and if the collective agreement or employment regulations do not provide for the method of giving unfavorable discretion to the employer."

(B) Therefore, I examine whether there exists a paid holiday given one week during the strike period of the above plaintiffs during the strike period of this case. The purpose of the weekly holiday system is not to take mental and physical rest in order to restore workers' way so as to lead them to a reproductive work and to maintain productivity, but to allow workers to have free time from the duty to provide labor at a place other than the workplace. In the case of ordinary workers, under the weekly 44-hour work system, under the weekly 40-hour work system, a weekly holiday is granted on Sundays by being opened to the number of contractual days from the daily day to the daily day from December 5, 2005 to December 11, 205, taking into account the fact that the weekly work period is extended to Sundays.

(6) Determination as to the above plaintiffs' basic pay claims

(A) The fact that the above plaintiffs are workers who entered into an employment contract with the defendant, and when the defendant paid the above plaintiffs the pro rata wages on January 21, 2006, the defendant paid only the remaining basic wages after deducting the corresponding amount as stated in the "basic wage deduction amount" in the attached Table 4 "the statement on the claim for wages of the plaintiffs" corresponding to the 4th day of the strike period of this case among the basic wages to be originally paid by the defendant on January 21, 2006. Thus, the defendant is obligated to pay the above plaintiffs the corresponding amount as stated in the "basic wage claim amount" in the attached Table 4 "the basic wage claim amount" in the attached Table 4 of the strike period of this case and damages for delay as requested by the above plaintiffs among the basic wages of January 206, 206.

(B) Next, according to the Defendant’s assertion of deduction No. 1 through 18, 20 through 96, 106 through 138, 138 through 151 as to the above paid holidays, the Defendant’s assertion of deduction No. 2 is as indicated in the corresponding column of “the Plaintiff’s second paid holiday No. 205, Dec. 2, 2005,” which was scheduled before the instant strike, including the number of paid holidays No. 1 through 20, the number of days during the pertinent period of non-paid holidays, and the number of days during the pertinent paid holidays No. 20, which is recognized as the number of days during the pertinent period of non-paid holidays (for example, the number of days during the pertinent paid holidays No. 1, No. 200, which is recognized as the number of days during the pertinent period of non-paid holidays, and thus, the number of days during the pertinent period of two paid holidays constitutes the number of days during the pertinent period of two days during the instant period of non-paid holidays.

Therefore, if the basic salary grade that the above plaintiffs calculated by the following formula, the remaining amount which remains after deducting the paid holiday part according to the defendant's assertion from the basic salary grade that the above plaintiffs sought against the defendant, such amount shall be the amount corresponding to the "basic salary grade" column 6 of the attached Table 4.

In the formula of 0: Each relevant amount stated in attached Table 4 "the deduction amount of basic salary ± 4 days which is the number of strike days of this case 】 (number of days for each of the above plaintiffs included in the period of the strike of this case - number of days recognized as paid holidays out of the above number of days for the strike of this case - number of days recognized as paid holidays) and less

(7) Sub-committee

Therefore, the defendant is obligated to pay each of the corresponding amounts stated in the "basic salary grade" column in attached Table 6 of attached Table 4 to the remaining plaintiffs except the plaintiffs listed in attached Table 1 Nos. 20, 22, 28, 41, 41, 66, 68, 71, 73, 83, 87, 88, 109, 111, 119, and 142 among the above plaintiffs, and to pay damages for delay from January 22, 2006, which is the day following the payment of benefits on January 22, 2006.

B. Determination as to the claim for flight allowance (the plaintiffs listed in Nos. 1 through 105 of the attached Table 1)

(1) Determination as to the cause of claim

The fact that the actual flight hours of the above plaintiffs on December 2005 are at least 30 hours, and when the defendant pays the above plaintiffs a pro rata payment on January 21, 2006 to the above plaintiffs on January 2006, the defendant is obliged to pay the difference between the total amount of flight allowance and overtime flight allowance calculated on the basis of actual flight hours on December 2005 and the difference between the 75 hours flight allowance paid in advance on December 2005 and the 75 hours flight allowance paid in advance on December 2005, the amount calculated on the basis of the 75 hours flight allowance in attached Table 4, which is "the difference between the plaintiff's wage claim amount and the 75 hours flight allowance paid in advance on December 2005." Therefore, the defendant is obliged to pay the above plaintiffs the difference and delay damages.

In addition, the plaintiff and the plaintiff listed in No. 38 of the list No. 1 of the same list No. 38 of the same list are the amount that the defendant unfairly deducted from his flight allowance on January 2006, 2006 is not the corresponding amount stated in the "amount of flight allowance" column No. 8 of the above table, but the corresponding amount stated in the "amount of flight allowance claim" column No. 7 of the same table, but there is no evidence to acknowledge it, but this part of the plaintiffs' assertion is rejected.

(2) Judgment on the defendant's assertion

(A) As to the assertion that the absence without permission constitutes absence without permission

During the strike period, an employee cannot exercise his/her right to command labor against the provision of labor (see Supreme Court en banc Decision 94Da26721, Dec. 21, 1995). Thus, it is difficult to view that the aforementioned Plaintiffs participated in the strike on the working day without permission, on the ground that they were absent from work. Accordingly, the Defendant’s above assertion is without merit.

(B) As to the assertion that the refusal to issue an order on board constitutes a refusal

① First, whether the above plaintiffs issued the order to work on board or any other similar order, as alleged by the above plaintiffs, is insufficient to recognize the above only by the descriptions of the evidence Nos. 2-1, 2, 3, and 4, and there is no other evidence to acknowledge it.

(2) Even if the order to work on board was issued as alleged by the Defendant, as seen earlier, even if the duty to work on board was suspended during the period of the strike, and thus no duty to comply with the order to work on board cannot be presented itself. As such, the participation in the strike constitutes a legitimate exercise of the right to dispute by workers, and thus, it cannot be deemed that there is no wage payment or the justification for the reduction of wages in comparison with the refusal to work on board by individual workers at ordinary times. Therefore, the Defendant’s assertion as above is unreasonable.

(3) Sub-decisions

Therefore, the defendant is obligated to pay to the above plaintiffs the amount corresponding to the "amount of payment for flight allowances" column 8 of the attached Table 4 of the "statement of claim for wages" and damages for delay from January 22, 2006.

C. Sub-committee

Therefore, the defendant is obligated to pay to the remaining plaintiffs except for the plaintiffs listed in the separate sheet Nos. 108, 109, 111, 119, and 142, the "basic salary" column No. 6 of the attached Table No. 4 of the "The Details of Claim for Wages" and the "the amount of the flight allowance" column No. 10 of the attached Table No. 8 of the same Table with each corresponding money as stated in the "total amount" column No. 10 of the attached Table No. 10 of the same Table, and to pay damages for delay at a rate of 6% per annum as stipulated in the Commercial Act from January 22, 2006 to December 17, 2010, which is the date of the decision of this case where it is deemed reasonable for the defendant to dispute the existence or scope of the obligation to perform this case, and from the following day to the date of full payment.

4. Conclusion

If so, the plaintiffs' claims except the plaintiffs listed in Nos. 108, 109, 111, 119, and 142 listed in the table Nos. 1 list are accepted within the scope of each above recognition, and each remaining claims are dismissed as they are without merit. The plaintiffs' claims listed in Nos. 108, 109, 111, 119, and 142 listed in the table No. 1 list are dismissed as they are without merit.

[Attachment 1] List of Plaintiffs: omitted

[Attachment 2] Relevant Provisions: omitted

[Attachment 3] The plaintiffs' second note of December 2005: omitted

[Attachment 4] The plaintiffs' wage claim list: omitted

Judges Kang Jae-gu (Presiding Judge) Dong-ro