2. The costs of lawsuit shall be borne by the Plaintiff.

A. The Plaintiff, as an employee of the new Architect office (hereinafter “instant company”), applied for childcare leave from June 9, 2015 to June 8, 2016 to the instant company, and filed an application for childcare leave with the Defendant on July 22, 2015.

B. The Defendant calculated the Plaintiff’s ordinary wage at KRW 2,605,000 per month and paid KRW 10,200,000 in total for childcare leave benefits equivalent to 40% of the ordinary wage to the Plaintiff over 12 times from July 22, 2015 to June 21, 2016.

C. However, the Defendant issued an order to return 2,122,40 won as unjust enrichment to the Plaintiff on July 13, 2016, to the extent that the Plaintiff’s first calculated ordinary wage excluded from overtime allowances, bonuses, transportation expenses, and food expenses, and the ordinary wage amounting to 1,979,800 won per month. Pursuant to Articles 62(3) and 74(1) of the Employment Insurance Act, the Defendant issued an order to return 2,122,40 won as much as the difference between 40% of the first calculated ordinary wage and 40% of the re-calculated ordinary wage (hereinafter “instant disposition”).

[Ground of recognition] No dispute, Gap evidence Nos. 9, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

A. The plaintiff's assertion

The Plaintiff had received the overtime allowances, bonuses, transportation expenses, and heavy food regularly, uniformly, and fixedly at the instant company. As such, overtime allowances, bonuses, transportation expenses, and heavy food expenses must be included in the Plaintiff’s ordinary wage. Therefore, the instant disposition on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

According to Article 95(1) of the Enforcement Decree of the Employment Insurance Act, childcare leave benefits under Article 70(3) of the Employment Insurance Act refer to the monthly amount equivalent to 40/100 of the ordinary monthly wage calculated pursuant to the Labor Standards Act as of the first day of childcare leave. Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that ordinary wages refer to the hourly amount of wage, daily amount of wage, weekly amount of wage, weekly amount of wage, monthly amount of wage, or contract amount that shall be paid for contractual or total labor regularly and uniformly.

1) Determination criteria for ordinary wages (see, e.g., Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013) shall be determined based on the objective nature of whether a certain wage constitutes ordinary wages, or not, on the basis of whether a certain amount of wages is paid as money or goods provided to an employee for a contractual work, and is not determined by formal standards, such as the name of wages or the length of the payment cycle, etc. In this context, remuneration for contractual work refers to money or goods prescribed to be paid to an employer and an employee with respect to the work ordinarily provided during the contractual work hours. The wages that an employee received from an employer without relation to an employee’s additional provision of work other than those provided or provided under a labor contract cannot be deemed as remuneration for contractual work, and thus, are not included in ordinary wages.

On the other hand, in order for a certain wage to be included in ordinary wages, it shall be regular, uniform, and shall be paid in a fixed manner. The term "fixedness" refers to "the nature, regardless of achievements, achievements, or other additional conditions with respect to the work provided by an employee," and the term "fixed wage" can be defined as "minimum wage to be paid automatically and definitely in return for the work of an employee who has worked on a voluntary day regardless of the name of the wage, even if the employee retires on the next day, regardless of the title of the wage," which can be defined as "minimum wage to be paid in return for the work of an employee." Fixedness wage is expected to be paid as a matter of course regardless of whether additional conditions are satisfied if the employee provided a contractual work on a voluntary day. Thus, even if the employee provided a fixed-term work, it can not be said that the wage or the amount of payment is fixed in advance.

Specifically, by stipulating that a certain amount of wages shall be paid for each working day, if a wage is paid on a daily basis according to the actual working days, the amount is different depending on the actual working days, but if a worker provides a contractual work on a voluntary day, it is determined to be paid a certain amount. Thus, such wage constitutes fixed wage. However, the wage that is paid only when a certain number of working days is fulfilled, in addition to the provision of contractual work. The fulfillment of such condition is an uncertain condition that cannot be determined at the time of providing overtime, night, or holiday work on a voluntary day. Meanwhile, even if the method of calculating or paying a certain number of working days differs, if the method of calculating or paying a certain amount of wages is determined to be paid at least a certain amount of wages, it can be recognized as fixedness within the scope that is determined as minimum. For example, if a certain number of working days is less than 15 days, the total amount of wages is paid on a daily basis, and if the wage is paid on a daily basis according to the number of working days, it is recognized that there is no difference in the fixed number of working days.

2) In the instant case:

According to the above legal principles, an overtime allowance out of the Plaintiff’s wages constitutes an additional wage paid by the instant company by providing overtime work hours in excess of contractual work hours, and thus does not constitute ordinary wages. Meanwhile, according to the evidence No. 3, Article 9 of the Rules of Employment of the instant company, which was enforced from January 1, 2015, provides that bonus shall be paid when the instant company works for at least 30 days as of February 2, 2015, and other allowances shall be paid when the company works for at least 15 days as of January 1, 200. Thus, bonuses, transportation expenses, and heavy food expenses that are paid only when the instant company satisfies the additional conditions that meet a certain number of working days in addition to the provision of contractual work hours, and the fulfillment of such conditions constitutes uncertain condition that cannot be determined at the time of providing overtime, night, or holiday work on a voluntary date, and thus, it does not constitute a theory that the instant company does not constitute ordinary wages.

Therefore, the plaintiff's assertion cannot be accepted, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

A person shall be appointed.