[1] Whether a trade union can conduct a disposition such as waiver or postponement of payment of individual workers' wages for which the right to claim the payment has already occurred only by a collective agreement between the employer and the employer (negative with qualification)

[2] The time when bonuses paid to workers under the collective agreement, etc. become specific claims for payment

[3] The case holding that it is reasonable to see the payment date of a bonus paid every two months as the last day of the month, since the bonus has the nature of wage for two months since it is regularly paid for a two-month period, but it is difficult to view that there is a established labor-management practice as to the period of payment exceeding one month and there is a established labor-management practice

[1] Under the principle of collective agreement autonomy, a trade union may enter into a collective agreement with an employer to change terms and conditions of work in favor of an employer as well as a collective agreement to change terms and conditions of work unfavorably. Thus, barring any special circumstance, such as where a collective agreement to change terms and conditions of work may be deemed to be unreasonable and thereby deviating from the purpose of a trade union, such agreement between such labor and management shall not be deemed null and void, barring special circumstances. A trade union does not require prior consent or authorization from an employee for such agreement, but the wages (including bonuses) for which the right to claim payment has already occurred are transferred to the worker’s private property area and is entrusted to the worker’s disposition. Thus, insofar as a trade union does not obtain an individual consent or authorization from the employee, a collective agreement

[2] If the time when the bonus paid to an employee under a collective agreement, etc. becomes a specific claim for payment of wages, Article 42 (2) of the Labor Standards Act provides that "wages shall be paid at least once a month on a fixed date," and the proviso of Article 42 (2) of the Labor Standards Act provides that "this shall not apply to wages paid temporarily, allowances, or other equivalents, or wages as prescribed by the Presidential Decree," and Article 18 of the Enforcement Decree of the same Act provides that "temporary payment of wages, allowances, or other equivalents, or wages as prescribed by the Presidential Decree" means any of the following subparagraphs, while subparagraph 3 provides that "in cases where a bonus paid to an employee for a period exceeding one month is calculated by a certain period of time among bonuses paid to an employee for his/her work, it does not necessarily mean that the payment of the bonus by the last day of the payment period is made by the labor-management practice."

[3] The case holding that it is reasonable to view the payment date of bonuses paid every two months as the last day of the relevant month, since bonuses are regularly paid for a period of two months, and it is difficult to view that there is a established labor-management practice as to the period of calculation exceeds one month and the period of payment exceeds one month.

[1] Articles 29 and 33 of the Labor Relations Adjustment Act / [2] Article 42 (2) of the Labor Standards Act, Article 18 of the Enforcement Decree of the Labor Standards Act / [3] Article 42 (2) of the Labor Standards Act, Article 18 of the Enforcement Decree

[1] Supreme Court Decision 99Da7572 delivered on November 23, 1999, Supreme Court Decision 99Da67536 delivered on September 29, 200 (Gong2000Ha, 2195)

Plaintiff (Appointed Party) (Law Firm Busan, Law Office, Attorney Jeong Jae-sung, Counsel for defendant-appellant)

Korea Air Co., Ltd. (Law Firm Squa, Attorneys Park Jong-chul et al., Counsel for the defendant-appellant)

Busan District Court Decision 200Na10526 delivered on May 31, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (appointed party).

1. Summary of the judgment of the court below

The court below accepted the judgment of the first instance court that the defendant company and the labor union (hereinafter referred to as the "labor union") concluded 90. The defendant company's right to pay 9.0% bonus to the 19.0% of the total amount of the 9.0% bonus and the 9.0% bonus will not be paid for 9.0% of the total amount of the 19.4 months, 10 months, 8 months, 12 months, and 9.4 months, and 9% of the total amount of the 9.4 months, 1998, and 9% of the bonus will not be paid for 9.0% of the total amount of the 9.4 months, 198, 198, 198, and 9% of the bonus will not be paid for 9.0% of the total amount of the 9.0% bonus and the 9.0% bonus will not be paid for 9% of the parties to the agreement."

2. Judgment on the grounds of appeal

A. Under the principle of the autonomy of an agreement, a trade union may enter into a collective agreement with an employer to change the working conditions at a disadvantage, as well as a collective agreement to change the working conditions at a disadvantage with an employer. Thus, barring any special circumstance such as where the collective agreement to change the working conditions at a disadvantage can be deemed null and void, barring special circumstances such as where the collective agreement to change the terms and conditions of employment can be seen as going beyond the purpose of a trade union due to a substantial rationality. A trade union is not required to obtain an individual consent or authorization from an employee in advance for such agreement, but the wages (including bonuses) for which the right to claim payment has already occurred are transferred to the worker’s private property area, and thus the trade union is entrusted with the worker’s disposition. Thus, insofar as the trade union does not obtain an individual consent or authorization from the employee, the collective agreement alone with the employer cannot perform such act as waiver or postponement of payment (see Supreme Court Decision 9Da675

B. However, if the time when the bonus paid to an employee under the collective agreement, etc. is the specific right to claim payment of wages, Article 42 (2) of the Labor Standards Act provides that "wages shall be paid at least once a month on a fixed date," and the proviso of Article 42 (2) of the Labor Standards Act provides that "this shall not apply to wages paid temporarily, allowances, or other equivalents, or wages as prescribed by the Presidential Decree." Article 18 of the Enforcement Decree of the same Act provides that "temporary payment of wages, allowances, or other equivalents, or wages as prescribed by the Presidential Decree" means any of the following subparagraphs. Article 3 provides that "in cases where a bonus paid to an employee for a period exceeding one month is calculated on the basis of a reason beyond one month, it may not be paid on a fixed date, and thus, in principle, payment of the bonus by the last day of the payment period should be made on the fixed date. However, if it is established on the fixed date of the pertinent month in accordance with the labor-management practice, it shall be deemed that the bonus is paid on the fixed date:

C. According to the records in this case, not only the collective agreement between the defendant company and the labor union for 198 but also the previous collective agreement for February 1, 4, August 8, 199, and 10% of bonuses were provided for 190. The defendant company paid the remaining bonuses excluding the time of replacement until December 197, but it had different dates of payment. In particular, it was difficult to interpret that bonuses were paid on February 27, 1998, based on the agreement with the labor union for 198 and 4 months after the conclusion of the collective agreement for 194. It was reasonable to view that bonuses were paid on the same 9th anniversary of the date of payment of bonuses, and that bonuses were paid on April 21, 198 without the agreement for 198.

D. On the premise that the date of payment of bonuses is viewed as above, first of all, as to the bonus of April 1998, the defendant company and the trade union reached an effective agreement between the defendant company and the trade union to postpone the payment of bonuses until the date of establishment of the wage agreement on April 29, 1998, which was the last day of April 1998, when the specific right to claim payment of bonuses occurs. Thus, as seen above, it cannot be deemed that the specific right to claim the payment of bonuses of the workers on April 7, 1998, which was concluded by the wage agreement between the defendant company and the trade union to refuse the payment of bonuses, has occurred, and therefore, it cannot be said that the wage agreement of May 7, 1998, which was concluded on April 198, 198, did not waive or delay the specific right to claim payment of bonuses already occurred to the plaintiff, etc.

E. Furthermore, as seen above, the payment date of bonus as of December 12, 1998 should be viewed as the last day of December, 199, as long as the wage agreement was concluded to pay 50% of the bonus in December 12, 1998, and it cannot be deemed that the specific right to claim payment of bonus on December 24, 1998 (the original court determined that the wage agreement was concluded on December 18, 1998, but it seems to be erroneous fact-finding) has not been established, and therefore, the wage agreement on December 24, 1998 cannot be deemed as waiver or delay of payment of specific right to claim payment arising from bonus to the plaintiff, etc. (However, it is erroneous that the court below failed to make a decision on this point despite the plaintiff's explicit assertion).

F. Accordingly, the plaintiff's assertion that each wage agreement as of May 7, 1998 and December 24, 1998 gives up the plaintiff's specific right to claim wages without an individual authorization is null and void is without merit. Thus, the court below erred in the misapprehension of facts and determination as seen above, but it is just to accept the plaintiff's argument to the above purport and to reject the plaintiff's claim for payment of bonuses as of April 7, 1998 and the conclusion of rejecting the plaintiff's claim for payment of bonuses as of December 12, 1998, and the above illegality does not affect the conclusion of the judgment, and the grounds for appeal pointing out the illegality are not acceptable.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)