[1] Whether a worker can claim wages for paid holidays included in the period of strike (negative)

[2] The legal nature of an industrial action by workers, and the effect of an industrial action on the rights and obligations under an employment contract

[1] Articles 54 (see current Article 55) and 59 (see current Article 60) of the Labor Standards Act (wholly amended by Act No. 8372 of April 11, 2007) / [2] Article 44(1) of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court en banc Decision 94Da26721 delivered on December 21, 1995 (Gong1996Sang, 208)

Plaintiff 1 and 43 others (Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

Plaintiff 45 and 41 others (Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 2007Na55233 decided April 11, 2008

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

We examine the grounds of appeal.

1. Regarding the plaintiffs' grounds of appeal

A. In light of the normative purpose of the provision on holidays and paid holidays under the Labor Standards Act, in order to be subject to the special provision on paid leave that allows an employee to pay wages without providing labor, the employee provided labor, i.e., labor, and the situation where continuous provision of labor is expected to exist is naturally premised. Therefore, even if the paid leave is included in the period of the strike during which the employee’s principal right and obligation, such as the duty to provide labor, is suspended during the period of leave or in the same same manner, and where the employee’s right to pay wages does not occur, the employee cannot seek wages on paid leave (see, e.g., Supreme Court Decision 2007Da73277, Dec. 24, 2009). Furthermore, in light of the normative purpose of the relevant law, or the paid leave granted to an employee under the collective agreement, employment rules, and employment contract, etc., the employee’s participation in the strike is naturally premised on an ordinary employment relationship as well as the right to claim wages during the strike period.

B. The court below rejected all the plaintiffs' assertion that the defendant sought the payment of deducted basic pay due to the improper deduction, on the ground that it is reasonable that the defendant's calculation of the wages for the plaintiffs participating in the strike was made on the day off from work (DO. ADO. ATRO. ATRO. etc.) and on the day off from work (ABS) such as annual leave (ALV) during the strike period of this case and various "non-regular leave (DO. ATRO.)" were not paid after deducting the wages corresponding to the relevant day from the basic pay.

First, the lower court’s determination that the Plaintiffs’ exercise of the right to claim wages for paid holidays and paid leave included in the period of the strike of this case cannot seek the payment of basic wages is justifiable.

However, even in accordance with the above legal principles, the defendant can deduct the wages for paid leave and paid leave included in the period of the strike in the form of monthly salary, and the basic salary does not include the wages for the unpaid holiday. Thus, even if the unpaid holiday is included during the period of the strike, the plaintiffs claim that the unpaid holiday should not be deducted. Thus, the court below should have judged whether the basic salary deduction for the "non-paid" included in the period of the strike is legitimate or not.

Nevertheless, the court below concluded that the basic salary can be deducted for all the days of absence from work during the strike period of this case, including “non-standing”. In so doing, the court below erred by misapprehending the legal principles on basic salary and holidays, and the grounds for appeal pointing this out are with merit.

2. As to the Defendant’s ground of appeal

A. Workers’ industrial action is an act of strike against an employer to suspend labor collectively and systematically in order to favorably develop disputes arising out of disagreements between the parties to labor relations with respect to labor conditions. As such, during the period of such industrial action, workers are suspended from the duty to provide labor, which is the main duty to the employer, and the employer is prohibited from exercising the right to command labor for the provision of labor (see Supreme Court en banc Decision 94Da26721, Dec. 21, 1995, etc.).

B. The court below accepted the above plaintiffs' claim on the unpaid portion of the flight allowance in light of the above legal principles and records, and there is no error in the misapprehension of legal principles as to the interpretation of collective agreement, such as wage agreements, as otherwise alleged in the ground of appeal by the defendant, in light of the above legal principles and records, so long as the plaintiffs in the list No. 1-1 committed actual flight for more than 30 hours at the time of this case, the defendants are obligated to pay flight allowance for 75 hours, which is the basic flight security allowance, and the strike participation by the above plaintiffs in this case cannot be deemed to fall under "when a person is absent from office or refuses to order work on board."

3. Conclusion

Therefore, the part of the judgment below against the plaintiffs is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)