① Unless there are special circumstances, such as whether the hourly rate of working hours within standard working hours is determined in relation to fixed allowances in a collective agreement, employment rules, or labor contract, etc., and whether the hourly rate of working hours and night work hours is clearly determined, deeming that wages for the hours during which labor are provided are set in the same amount is the most equitable, reasonable, consistent with the principle of wage calculation. In principle, deeming that the same value per hour is equal to the assessment of the hours during which the same labor is provided. Viewing otherwise without any special ground, such as statutes or agreements between the parties, constitutes arbitrary assessment of the value of labor.

② Article 56 of the Labor Standards Act merely stipulates that when an employee engages in overtime work or night work, an employer shall pay statutory allowances for such overtime work, plus 50/100 or more of ordinary wages when he/she pays such statutory allowances. There is no legal basis to consider the premium rate for calculating premium allowances when determining the number of agreed working hours necessary for calculating the hourly rate of a fixed allowance paid in the form of a monthly salary. The Labor Standards Act does not separately stipulate the premium rate for the number of overtime, night work hours, and holiday work hours.

(3) In cases where an employer calculated and paid a fixed allowance in the form of a monthly salary without including it in ordinary wages, there is no reason to determine the hourly rate of such fixed allowance, and thus, it is difficult to deem that the intent regarding the method of calculating an hourly rate is formed. Even if such fixed allowance was paid in accordance with a collective agreement, as in the case of an employer, it is difficult to deem that the trade union has an intent to determine the hourly rate of a fixed allowance. In such cases, where the intent of the parties in a labor relationship with respect to an hourly rate of a fixed allowance is not determined, if the intent of the parties in a labor relationship with respect

④ According to the previous rulings, the hourly ordinary wage is calculated lower than the actual value, and is contrary to the purport of protecting workers by having agreed to work hours exceeding standard work hours, contrary to the legislative purport of the Labor Standards Act. Moreover, consistently applying the purport of the previous rulings would result in unfair consequences when the employer did not agree to work hours exceeding standard work hours but agreed to provide all or part of contractual work at night.

(B) The foregoing legal doctrine equally applies to the calculation of hourly ordinary wages for fixed allowances paid in the form of a daily rate as wages for agreed working hours exceeding standard working hours.

(C) If a collective agreement, employment rules, etc. provides a premium rate for weekly holiday allowances, this is merely the purport to pay weekly holiday allowances by adding a certain rate to the basic weekly holiday allowances when paying weekly holiday allowances. Therefore, the foregoing legal doctrine also applies to this case. Therefore, when calculating the number of hours deemed to have worked on weekly holiday days to be included in the number of total working hours, the premium rate prescribed in weekly holiday allowances need not be considered.

[Dissenting Opinion by Justice Lee Ki-taik] (A) The Majority Opinion is unreasonable as it does not consider the intention of the parties in a labor relationship regarding the determination and payment of fixed allowances.

How to convert a fixed allowance into an hourly rate is merely a matter of confirming the intent of the parties to the agreement, labor contract, etc., which served as the basis for the payment of the fixed allowance, with respect to the fixed allowance determined by a mutual agreement or labor contract between the parties to the agreement. Even if a collective agreement or labor contract, etc. does not expressly stipulate an hourly rate of a fixed allowance and such intent is not explicitly expressed, in full view of all the circumstances, including the details and conditions of the payment of the fixed allowance, methods of calculating the basic salary at the relevant workplace, wage payment practices, work form at the relevant workplace, etc., the intent of the parties to the agreement ought to be interpreted objectively and reasonably

Where an employer and a trade union agree not to include a fixed allowance in the form of a monthly salary or a daily rate in ordinary wages and to pay a statutory allowance, such as overtime and night work allowance, such agreement is merely to convert a fixed allowance into an hourly rate and not to take it as the basis of the calculation of various statutory allowances. Rather, it is reasonable to deem that the parties have agreed to a certain intent explicitly regarding the contents and calculation method of a fixed allowance at the wage determination stage related to a fixed allowance, even if the parties were to impliedly regarding the contents and calculation method of a fixed allowance

(B) It is difficult to agree with the Majority Opinion in terms of legitimate evaluation of the value of labor.

Article 56 of the Labor Standards Act can be understood as having declared that the value of one hour’s overtime and night work has the value of 1.5 hours’ overtime and night work within the standard working hours. In addition, considering the characteristics of the aforementioned work, which is separate from the weekly work within the standard working hours, the weekly work within the standard working hours is not generally the same as that of overtime and night work.

Considering such valuation of value as to overtime and night work, it is reasonable to view that the hourly remuneration for overtime and night work among fixed allowances is at least 1.5 times as remuneration for weekly work within standard work hours, compared to the remuneration for weekly work hours within standard work hours. Therefore, the hourly ordinary wage of fixed allowances cannot be calculated by dividing the fixed allowances by the number of agreed work hours without considering the premium rate in itself.

If the parties in a labor relationship have already evaluated the fixed allowance per hour for overtime and night work, in accordance with the purport of Article 56 of the Labor Standards Act when determining and paying a fixed allowance, by reflecting the premium rate compared to the remuneration for weekly work within standard work hours in accordance with the purpose of Article 56 of the same Act, it is natural to consider the same premium rate as in the process of calculating the hourly

(C) Of fixed allowances in the form of monthly pay, “the part corresponding to paid holidays” under Article 55 of the Labor Standards Act refers to “the part corresponding to the hours of paid leave.” Therefore, the scope of exclusion from fixed allowances should be determined depending on the number of paid hours during paid holidays, and the calculation of the number of total working hours should also be reflected in the calculation of the number of total working hours. The deemed hours of weekly paid leave pay refer to the number of paid hours during weekly paid holidays, even though the worker does not provide labor. If the premium rate is set for weekly paid leave allowances, the number of weekly paid leave allowances increases accordingly, and the number of paid hours during weekly paid holidays increases accordingly. Accordingly, the number of paid hours at the premium rate should be reflected in the calculation of hourly ordinary wages.

1. Case summary

A. The Plaintiffs are employed by the Defendant and were employed as bus drivers and retired by them.

B. Details on the working hours and wages of the collective agreement in 2009 and the wage agreement in 2009 and the wage agreement in 2010 (hereinafter “instant collective agreement and each of the wage agreements”) concluded by the △△△△△△△ branch under the ○○○○○ branch of the Korea Automobile Trade Union to which the Defendant and the Plaintiffs belong are as follows.

1) Members’ work hours per day shall be eight hours per week, and 30 hours per week may be overtime work. The extended work hours include night work hours within three hours per week.

2) Daily working hours, which serves as the basis for wage calculation, are five hours of overtime work (30 minutes of night work) during 8 hours of basic working hours.

3) The structure and basis of calculation of wages, which is part of each of the instant wage agreements, is stipulated as follows with respect to weekly holiday allowances.

- Week leave allowances: 12 hours (8 hours + 4 hours) per week;

- Week leave allowances: 8 hours ¡¿ 150/100 = 12 hours;

C. The Defendant deemed the basic hourly wage calculated in accordance with each of the instant wage agreements as hourly ordinary wage, and determined the “daily wage” including the basic wage, overtime allowance, night work allowance, and weekly holiday allowance calculated on the basis of the basic hourly wage, and paid the amount calculated by multiplying the number of days for which the Plaintiffs worked by the daily wage by the daily wage amount.

D. Each working day, the Plaintiffs worked during the agreed working hours in excess of the standard working hours stipulated under the Labor Standards Act, and received various fixed allowances in the form of monthly pay or daily pay in addition to the monthly basic pay in return for the agreed working hours.

E. The Plaintiffs asserted that various fixed allowances, other than ordinary wages, (i.e., overtime pay, work on board allowance, annual beginning allowance, driver’s mutual aid allowance, meal allowance, and bonus), except for ordinary wages, constituted ordinary wages, and filed a claim for overtime allowance, night work allowance, weekly holiday allowance, full attendance allowance, and paid holiday allowance, based thereon.

2. Issues;

A. The Labor Standards Act is a standard wage for calculating premium pay for overtime, night, and holiday work, pre-announcement of dismissal, and annual leave allowance. In our country where an employee’s extended, night, and holiday work is ordinarily performed, the most important function of the Labor Standards Act as above is that it serves as the standard wage for calculating premium pay for overtime, night, and holiday work (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013). Inasmuch as premium pay for overtime, night, and holiday work ought to be paid in proportion to the time when the employee provided overtime, night, and holiday work, accurate understanding of the hourly rate of ordinary wage is the basis for calculating premium pay.

B. The key issue of the instant case is, in a case where an employee received a fixed allowance in the form of a monthly or daily rate having the nature of ordinary wages as wages for agreed working hours exceeding the standard working hours stipulated in the Labor Standards Act, and the employer excluded such fixed allowance from ordinary wages, but it is found, as a result of the deliberation, that the fixed allowance has the nature of ordinary wages, the calculation of the “total working hours” which serves as the basis for converting the said fixed allowance

3. Determination on the grounds of appeal by the Plaintiffs and the Defendant regarding the calculation of hourly ordinary wages

A. The attitude of the previous Supreme Court precedents

If a worker received a monthly fixed allowance as a wage for agreed working hours in excess of the standard working hours under Article 50 of the Labor Standards Act, the Supreme Court has determined to the effect that “the premium rate for calculation of premium pay” should be considered when calculating overtime working hours and night work hours in the number of agreed working hours included in the total working hours (see, e.g., Supreme Court Decision 2010Da9513, Mar. 29, 2018; hereinafter “former Labor Standards Act”) and the part corresponding to extension and night work under Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 2018; hereinafter “former Labor Standards Act”). As such, it is difficult to determine the ordinary wage. In such a case, the worker is deemed to have worked on paid leave and calculated the total working hours in addition to the agreed working hours, and then, the hourly ordinary wage is calculated by dividing the fixed allowance by the total working hours into the number of agreed working hours.

B. The judgment of the court below

1) The lower court calculated the hourly ordinary wage in the following manner in accordance with the foregoing previous judgment.

A) In the case of a fixed allowance set at a daily rate:

Basic work hours of fixed allowances in the table included in the main text + (4.5 hours of extended work x 150%) + (0.5 hours of extended work and night work x 200%) + (0.5 hours of extended and night work x 200%)

B) In the case of a fixed allowance set at a monthly rate:

A fixed allowance in the table included in the main sentence [40 hours of basic work per week + 8 hours per week of weekly work ＋ (22.5 hours of extended work x 150%) + (2.5 hours extended and night work x 200%) + 365 days ± 12 months ± 7 days

2) As such, the lower court included the extended working hours, taking into account the premium rate of 150% and the extended and night work hours, taking into account the premium rate of 200%, in the total working hours for calculating the hourly ordinary wage.

Meanwhile, the lower court reflected only eight hours per week in the number of total working hours for calculation of the hourly ordinary wage of a fixed allowance paid in the form of a monthly salary, without considering the “additional rate” 150% prescribed for weekly paid holiday allowances in each of the instant wage agreements, without considering the rate of 150%.

C. Judgment of the Supreme Court

1) A) In a case where a fixed allowance paid in the form of a monthly wage is converted into an hourly ordinary wage as a wage for agreed working hours in excess of the standard working hours stipulated under the Labor Standards Act, the calculation of the number of agreed working hours that are included in the total working hours that serve as the basis for calculating hourly ordinary wage is required to add up the number of hours actually agreed to provide labor by an employee, barring special circumstances, and the number of extended working hours and night work hours that take into account the “additional rate” for calculating premium allowances is not to be added up. Determination on the relevant portion of the previous judgment is unreasonable, and thus, it is difficult to maintain

(1) Barring special circumstances, such as whether the hourly rate of working hours within standard working hours are well-grounded in relation to fixed allowances in a collective agreement, employment rules, or labor contract, etc., and whether the hourly rate of working hours and night work hours is clearly determined, deeming that wages for the hours during which labor was provided are set in the same amount is the most equitable, reasonable, and consistent with the principle of wage calculation. In principle, deeming the same as the assessment of the hourly rate of working hours during which the same labor is provided. Considering the same differently without any special ground, such as statutes or an agreement between the parties, constitutes an arbitrary assessment of the value of labor.

Therefore, when seeking an hourly rate of a fixed allowance paid in return for a specific working hour, it is reasonable, in principle, to divide the amount of the relevant fixed allowance into the number of specific working hours, and the premium rate for the calculation of premium pay should not be reflected.

(2) Article 56 of the Labor Standards Act merely stipulates that when an employee engages in overtime work or night work, an employer shall pay statutory allowances for the said amount by adding 50/100 or more of ordinary wages when he/she pays statutory allowances. There is no legal basis to consider the premium rate for calculating premium allowances when determining the number of agreed working hours necessary for calculating the hourly rate of a fixed allowance paid in the form of a monthly salary. The Labor Standards Act does not separately stipulate the premium rate for the number of overtime, night, and holiday working hours.

Meanwhile, in cases where overtime work allowances calculated pursuant to Article 56 of the Labor Standards Act are included in the monthly basic pay that a worker receives, the worker may seek an hourly ordinary wage of the basic monthly wage by dividing the monthly basic wage by the total number of working hours calculated by taking into account the prescribed working hours, the extended working hours by taking into account the premium rate, and the deemed working hours during weekly paid hours. This is a natural method to deduct overtime work allowances from the basic monthly wage, given that overtime work allowances calculated according to the premium rate have already been included in the monthly basic wage. However, unless otherwise prescribed in an employment contract, organization agreement, etc., among the fixed allowances paid each month other than the basic daily wage, the statutory allowances or night work allowances paid pursuant to Article 56 of the Labor Standards Act do not naturally include overtime work allowances or night work allowances (see Supreme Court Decisions 2014Da6275, Aug. 20, 2014; 2016Da6271, Dec. 27, 2018).

(3) In general, an employer shall determine the hourly ordinary wage to accurately calculate and pay statutory allowances. However, when an employer calculates and pays statutory allowances without including a fixed allowance in the form of a monthly salary, there is no reason to determine the hourly rate of a fixed allowance, and thus, it is difficult to deem that an employer has formed an intent to determine the hourly rate of a fixed allowance. Even if such fixed allowances are paid in accordance with a collective agreement, as in the case of an employer, it is difficult to deem that a trade union has the intent to determine the hourly rate of a fixed allowance. In such a case where the intent of the parties in a labor relationship with respect to an hourly rate of a fixed allowance has not been determined, the employer must find the most reasonable and objective method of calculating

Furthermore, when interpreting a disposition document, such as a collective agreement, the collective agreement is conducted through collective bargaining between the labor union and the employer as an independent organization of workers with an intent to maintain and improve the workers’ working conditions and promote their economic and social status by enhancing their welfare, and thus, the explicit provisions cannot be interpreted disadvantageously to workers (see, e.g., Supreme Court Decision 2009Da102452, Oct. 13, 201). Therefore, the intent of the parties not expressed in the collective agreement or wage agreement should not be arbitrarily deemed as unfavorable to workers without any special ground.

(4) According to the previous judgment, the following unreasonable results may arise.

① In cases where working hours are agreed within the scope of standard working hours, the hourly rate is calculated by dividing the fixed allowances in the form of a monthly salary by the total working hours calculated by aggregating the monthly agreed working hours and the deemed working hours for weekly working hours. On the other hand, in cases where an agreement is reached on working hours in excess of standard working hours, the premium rate shall be reflected in the extended working hours and night work hours in calculating the number of agreed working hours per month. Comparing the latter with the former, the number of actual working hours is longer higher than the reduced hourly ordinary wages in the calculation of calculation, and thus, the difference between the latter and the latter would result in

The Labor Standards Act stipulates that an employer shall pay overtime, night, and holiday work in addition to at least 50% of ordinary wages for overtime, night, and holiday work. Meanwhile, the purpose of this provision is to protect workers by compensating them for monetary compensation corresponding thereto, as such, is to restrain overtime, night, and holiday work more than those performed within standard working hours and restrict the worker’s free living hours during which they can enjoy (see, e.g., Supreme Court Decisions 90Da12493, Dec. 26, 1990; 2012Da89399, Dec. 18, 2013). However, according to the previous rulings, unlike the purport of the provision of the Labor Standards Act, the hourly ordinary wage agreement to work hours exceeding standard working hours is calculated lower than the actual value, thereby going against the purpose of protecting workers.

② A consistent application of the purport of the previous judgment leads to an unreasonable consequence in cases where the said workplace did not agree on working hours exceeding standard working hours, but agreed to provide all or part of contractual working hours at night. Inasmuch as the number of total working hours for calculating the hourly ordinary rate of a fixed allowance paid in the form of a monthly salary between an employee who provided contractual work and an employee who provided all or part of contractual work at night in the same workplace differs from each other, the same amount of fixed allowances paid as a fixed allowance may vary even when receiving the same amount as the hourly ordinary wage. It is difficult to see that the

B) The foregoing legal doctrine equally applies to the calculation of hourly ordinary wages for fixed allowances paid in the form of daily pay as wages for agreed working hours in excess of standard working hours.

C) In contrast, Supreme Court Decisions 2010Da91046 Decided March 29, 2012; 201Da6106 Decided July 26, 2012; 201Da74363 Decided August 28, 2014, etc., which held to the effect that when converting the hourly rate of a fixed allowance in the form of a monthly salary or daily rate paid as wages for agreed working hours in excess of standard working hours, the total working hours ought to be calculated by considering the “additional rate” in the number of extended working hours and the number of night work hours, are to be modified to the extent inconsistent with this judgment.

2) If a collective agreement, employment rules, etc. provides a premium rate for weekly holiday allowances, this is merely the purport to pay weekly holiday allowances by adding a certain rate to the basic weekly holiday allowances when paying weekly holiday allowances. This doctrine also applies to this case. Therefore, the premium rate prescribed in weekly holiday allowances is not to be considered when calculating the number of hours deemed to have worked on weekly holiday days to be included in the number of total working hours.

D. Determination on the instant case

1) Examining the facts acknowledged earlier in light of the aforementioned legal doctrine, in order to calculate the hourly ordinary wage of a fixed allowance paid in the form of a monthly salary or daily rate corresponding to ordinary wage, the premium rate of 150% of the extended working hours and the premium rate of 200% of the extended working hours and night work hours shall not be considered in the number of total working hours. In addition, each of the instant wage agreements stipulates that the Plaintiffs’ basic weekly paid holiday allowances shall be the eight-hour rate of the basic hourly rate of pay, and that the Plaintiffs agreed to “additional rate” of 150% for the said amount, and thus, when calculating the number of total working hours for calculating the hourly ordinary wage of a fixed allowance paid in the form of a monthly salary corresponding to ordinary wage, the hourly ordinary wage ought to be added to eight hours per week of weekly paid work hours without considering the “additional rate” of weekly paid allowances.

A) In the case of a fixed allowance set at a daily rate:

Standard working hours of a fixed allowance in the table included in the main text + 8 hours in overtime work 4.5 hours in overtime work + 0.5 hours in overtime and night work

B) In the case of a fixed allowance set at a monthly rate:

A fixed allowance in the table included in the main sentence (40 hours per annum basic labor 40 hours + 8 hours per week work ＋ overtime work 22.5 hours + overtime and night work 2.5 hours) 】 365 days ± 12 months ± 7 days

2) Nevertheless, for the purpose of calculating the hourly ordinary wage of a fixed allowance paid in the form of a monthly salary or daily rate, the lower court erred by misapprehending the legal doctrine regarding the calculation of the hourly ordinary wage, thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal assigning this error is with merit.

The lower court did not consider the premium rate for weekly paid holiday allowances in the number of total working hours to calculate the hourly ordinary wage of a fixed allowance paid in the form of a monthly salary, as it did not consider the premium rate for weekly paid holiday allowances. Therefore, the lower court did not err by misapprehending the legal doctrine on the calculation of hourly ordinary wage.

4. Determination on the grounds of appeal by the Plaintiffs and the Defendant regarding the scope of ordinary wages ( continuous service allowances, food expenses, bonuses, and continuous service allowances after February 201, and driver’s mutual-aid fees and bonuses after February 2011)

For reasons indicated in its holding, the lower court determined that the Defendant’s continuous service allowances, food allowances, and bonuses paid by the Defendant from April 2009 to January 201 constituted ordinary wages as a regular, uniform, and fixed wage. Moreover, the lower court determined that the continuous service allowances, driver’s mutual aid allowance, and bonus paid from February 201 did not constitute ordinary wages.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the scope of ordinary wages, or by exceeding the bounds of the principle of free evaluation of evidence.

5. Determination on the grounds of appeal by the Plaintiffs regarding the claim for full attendance allowances and paid holiday allowances for paid holidays other than Workers’ Day

The lower court rejected all the Plaintiffs’ claim for unpaid full attendance allowance and unpaid paid holiday allowance for paid holidays other than Workers’ Day on the ground that the payment of full attendance allowance and paid holiday allowance for paid holidays is “agreement allowance determined by the labor-management agreement,” and that the agreement between the instant collective agreement and each of the wage agreements, which is calculated based on the agreed daily amount, is valid.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding full-time allowance and paid holiday allowance, or by exceeding the bounds of the principle of free evaluation of evidence

6. Determination on the Plaintiffs’ grounds of appeal regarding the ordinary wage of driver’s mutual aid association fees paid from April 2009 to January 201, and the claim for unpaid basic pay

The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and indicate specific and explicit reasons as to which part of the judgment below is in violation of the statutes. If the grounds of final appeal submitted by the appellant does not state such specific and explicit reasons, it is inevitable to treat the grounds of final appeal as not submitting the grounds of final appeal (see Supreme Court Decisions 97Da55126, Mar. 27, 1998; 2007Du23187, Jan. 24, 2008).

The Plaintiffs’ petition of appeal does not state the grounds of appeal as to “driver’s Mutual Aid Fees paid from April 2009 to January 201, 201” and “Unpaid basic pay.” The grounds of appeal submitted by the Plaintiffs merely state “reasonableness” as to “driver’s Mutual Aid Fees paid from April 2009 to January 201” and “Unpaid basic pay” as “the grounds of appeal” in the appellate brief submitted by the Plaintiffs stating “the summary of the lower judgment and the summary of the grounds of appeal.” Specific grounds of appeal do not state any of the lower judgment as to “driver’s Mutual Aid Fees paid from April 2009 to January 201” and “Unpaid basic pay” in the appellate brief submitted by the Plaintiffs.

In light of the legal principles as seen earlier, it is difficult to view the statement in the grounds of appeal as a legitimate ground of appeal, because it did not state specific and explicit grounds as to what portion of the judgment below is in violation of the law.

7. Judgment on the grounds of appeal regarding the Defendant’s agreement on the comprehensive wage system

In full view of the wage system under the instant collective agreement and each of the wage agreements, the details thereof, and the Defendant’s method of paying wages, the lower court determined that it is difficult to deem that there was an agreement on the comprehensive wage system solely on the sole basis that the prior agreement was reached on working

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the establishment of a comprehensive wage system, or by exceeding the bounds of the free evaluation

8. Scope of reversal

Of the part of the judgment below against the plaintiffs, there exist grounds for reversal as to the remaining parts, excluding the part of the plaintiffs' full attendance allowance, paid holiday allowance for paid holidays other than the Workers' Day, and claim for basic pay. The defendant appealed against the part of the judgment below against the defendant, and argued that the plaintiffs' claim seeking additional legal allowances calculated by including bonuses in ordinary wages is in violation of the good faith principle. Such defendant's assertion of the good faith principle needs to be deliberated and determined together with the plaintiffs' claim, which is reversed for the above reasons. Thus, the part against the

9. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below excluding the plaintiffs' full attendance allowances, paid holiday allowances for paid holidays other than the Workers' Day, and claims for basic wages is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiffs are all dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for the dissenting opinion by Justice Lee Ki-taik-taik-taik-taik-taik-soo-soo-soo-soo, Justice Min You-sook-sook-sook-sook and Justice Kim Seon-soo-soo-soo-soo

10. Dissenting Opinion by Justice Lee Ki-taik as to the method for calculating hourly ordinary wages

A. First, we examine the Plaintiffs’ grounds of appeal on this part.

1) The Majority Opinion determined that, in principle, the premium rates for calculation of premium pay should not be considered when aggregating extended working hours and night work hours included in the number of total working hours to calculate the hourly ordinary wage of a fixed allowance paid as wages for agreed working hours in excess of standard working hours. However, the logic of the Majority Opinion is unreasonable on the following grounds.

A) In a case where the hourly rate of a fixed allowance paid in the form of a monthly salary or daily rate is not specifically prescribed in a collective agreement or labor contract, the Majority Opinion that is reasonable and reasonable to divide the fixed allowance into the number of hours agreed to provide labor upon the conversion of an hourly rate of a fixed allowance into that of a fixed allowance into that of a collective agreement or labor contract is unreasonable, since the Majority Opinion does not consider the intention

(1) Matters concerning wages, such as the contents, payment criteria, and method of calculation of fixed allowances, are the areas in which parties can freely determine by applying the freedom of contract and autonomy thereof, insofar as they do not conflict with the mandatory law. Determination of how to pay and receive a fixed allowance according to any of the criteria ought to be freely decided by the parties through collective agreements or labor contracts. Ultimately, how to convert a fixed allowance at issue in the instant case into an hourly rate is merely a matter of confirming the parties’ intent regarding the contents, method, etc. of calculation of fixed allowances by interpreting a collective agreement or labor contract, which provides the basis for the payment of the fixed allowance between the parties. Even if a collective agreement or labor contract does not expressly stipulate an hourly rate of a fixed allowance and such intent is not clearly expressed, it is reasonable to interpret the parties’ intent to pay and pay the fixed allowance in an objective and reasonable manner, manner of calculation of the fixed allowance, wage payment practices, type of work at the workplace, etc. In principle, if the Majority Opinion intends to divide the contents, method, and method of calculation of the fixed allowance between the parties in question and the agreed rate of night work.

(2) Meanwhile, the Majority Opinion, as in the instant case, states that in cases where an employer and a trade union agreed not to include a fixed allowance in the form of a monthly salary or daily salary in ordinary wages in calculating and paying statutory allowances, such as overtime and night work allowances (hereinafter “ordinary wage exclusion agreement”), it is difficult to deem that the parties’ intent on the method of calculating the hourly rate of a fixed allowance has been formed.

However, an agreement on the exclusion of ordinary wages between an employer and a trade union is merely the fact that the fixed allowance is converted into an hourly rate and does not serve as the basis for the calculation of various statutory allowances. Rather, it is reasonable to deem that there exists a mutual agreement between the parties regarding the contents, method, etc. of calculation of the fixed allowance at the wage determination stage related to the fixed allowance, even if impliedly regarding the contents, method, etc. of calculation thereof

Furthermore, even if there is an agreement to exclude ordinary allowances as stated in the Majority Opinion, even if the intent of the parties to the hourly rate of fixed allowances is not formed, the lack of the parties to the hourly rate of fixed allowances, which occurred in the process of determining the intention of the parties to the hourly rate of fixed allowances, is merely a matter of supplementing the intent of the parties by objectively and reasonably consuming the intent of the parties, comprehensively taking into account the various circumstances related to the fixed allowances, unless there is any other discretionary provision applicable thereto. As long as such lack of intent is not to invalidate a collective agreement or an agreement on the payment of fixed allowances in accordance with employment contracts, the parties’ intent to the hourly rate

Ultimately, even if there is an agreement to exclude ordinary wages, there is no reason to change the method of calculating the hourly ordinary wage of a fixed allowance. The Majority Opinion is difficult to accept.

(3) We examine the instant case as an example. First of all, a fixed allowance in the form of a monthly salary or daily rate is paid in consideration of remuneration for extension and night work exceeding standard working hours. However, the hourly rate of the fixed allowance under the instant collective agreement or each wage agreement is not specified. However, when the organization of the “daily rate” constituting the Plaintiffs’ basic salary, it can be determined that the basic hourly rate is ordinarily prevailing, and the extension and night work, which are agreed in advance to the employees, are paid 1.5 times the basic hourly rate. As can be seen, it is objective and reasonable to interpret that the parties’ intent to pay 1.5 times the basic hourly rate for extension and night work is reflected in the fixed allowance. There is no special circumstance to view that only the parties’ intention on the basic salary structure is different from the fixed allowance. Accordingly, it is not unreasonable to view that the fixed allowance is an agreed allowance not for legal allowances. Accordingly, the calculation of the hourly rate of the total hourly working hours, which is the basis for overtime and night work hours, should not be considered differently from the total hourly working hours.

Ultimately, as seen in the instant case, the Majority Opinion is unreasonable that the hourly rate should be converted in such a way as to divide fixed allowances into the number of working hours agreed to provide labor, in principle, without confirming the intent of the parties.

(4) The extent to which the hourly rate of a fixed allowance is determined by the agreement between the parties in a labor relationship is merely a matter that is to be determined in accordance with the Majority Opinion. Even if the Majority declares the legal doctrine in accordance with the Majority Opinion, there is no room to apply the relevant legal doctrine if the labor and management specifically determines the hourly rate of a fixed allowance by a collective agreement. The key issue of the instant case is to confirm the parties’ intent, and

B) It is difficult to agree with the Majority Opinion in terms of legitimate evaluation of the value of labor.

(1) Article 56 of the Labor Standards Act provides that an employer shall pay an employee for overtime work and night work plus at least 50 percent of ordinary wages. Of course, as pointed out in the Majority Opinion, the above provision is a provision setting forth a premium rate at the time of paying statutory premium, and it is not a provision to determine the number of overtime and night work hours necessary to calculate the hourly ordinary wages of fixed allowances.

However, given that overtime work and night work are more than those performed within the standard working hours and limited to the worker’s freedom of living, seeking monetary compensation corresponding thereto is one of the important legislative intent of Article 56 of the Labor Standards Act (see, e.g., Supreme Court Decisions 90Meu12493, supra; 2012Da89399, supra). Considering such purport, Article 56 of the Labor Standards Act can be understood as having declared that in terms of the value of work, the value of overtime work and night work hours per hour has the value of 1.5 hours or more within the standard working hours, and that in terms of the value of work, overtime work and night work hours per hour has the value of 1.5 hours or more within the standard working hours. Moreover, given the above characteristics of work, it cannot be deemed that weekly work within the standard working hours have the same value as overtime work and night work hours in general. Ultimately, the Majority Opinion’s interpretation does not coincide with the premise that overtime work and night work hours within the standard working hours are basically identical to overtime work hours.

Furthermore, such an assessment of value for overtime work and night work ought to be taken into account in the course of calculating the hourly rate of a fixed allowance paid in return for agreed work hours exceeding standard work hours. Although a fixed allowance is not the Labor Standards Act, but the agreed allowance paid in return for the assessment of the amount and quality of work provided by an employee, so long as it is the wage granted in return for work based on the assessment of the amount and quality of work provided by an employee, the amount of allowances cannot be determined regardless of the value of work. In other words, insofar as there is no other data to clearly verify the intent of the parties to the hourly rate of a fixed allowance, it is the most reasonable to calculate the hourly rate of a fixed allowance, which is an agreed allowance, based on the

In addition, considering such valuation of value as to overtime and night work, it is reasonable to view that the hourly remuneration for overtime and night work among fixed allowances is at least 1.5 times the hourly remuneration for overtime and night work within standard work hours, compared to the hourly remuneration for work performed within standard work hours. Therefore, the reasonable hourly ordinary wage for fixed allowances cannot be calculated by dividing the fixed allowances by the number of agreed work hours without considering the premium rate in itself.

As can be seen, the logic of the Majority Opinion does not comply with the regulatory content and purport of Article 56 of the Labor Standards Act for overtime and night work, and does not coincide with the characteristics of overtime and night work. Without considering such circumstances at all, it is difficult to accept the Majority Opinion that the daily value of overtime and night work and standard work hours per hour is generally identical, and that both are basically the same work.

(2) Meanwhile, the Majority Opinion deems that the method of calculating the hourly ordinary wage of a fixed allowance according to the previous judgment rather contravenes the purpose of protecting workers under Article 56 of the Labor Standards Act, but is also unreasonable.

Specifically, the Majority Opinion, in comparison with the case where working hours are agreed in excess of standard working hours as seen in the instant case in accordance with the previous legal doctrine, compared with the case where working hours are agreed within the scope of standard working hours, it is unreasonable to deem that the number of hours actually worked exceeds the urgent reduction in the calculation of the hourly ordinary wages, and thereby, the number of working hours is increased as the number of agreed working hours exceeds the standard working hours increases in proportion to the premium rate, and accordingly, it is understood that the remuneration for fixed allowances per hour exceeds the bounds of the purpose of Article 56 of the Labor Standards Act, as the number of working hours is unreasonable.

However, in light of the purport of Article 56 of the Labor Standards Act, the term “the value of overtime and night work and the value of weekly work within standard working hours should be evaluated differently” as seen earlier. Furthermore, in a case where the parties in a labor relationship have already assessed the fixed allowances by reflecting the premium rate compared with the remuneration for overtime and night work within standard working hours in accordance with the purport of Article 56 of the Labor Standards Act when determining and paying the fixed allowances, if the parties in a labor relationship have already assessed the fixed allowances by reflecting the premium rate for each hour of overtime and night work within standard working hours, it is reasonable to consider the premium rate as well in the course of calculating the hourly rate of such fixed allowances. The method of calculating the hourly rate

Ultimately, this part of the Majority Opinion’s logic that criticizes the previous judgment is merely a reasonable discussion on the premise that the premium rate is not considered at all when calculating remuneration for overtime and night work exceeding standard work hours among fixed allowances paid pursuant to the agreement. However, as noted earlier, it is difficult to accept such premise in terms of the parties’ intention in labor relations with respect to fixed allowances, including remuneration for overtime and night work, or in terms of the justifiable value assessment of overtime and night work.

The logic of the Majority Opinion that, without considering the method of calculating fixed allowances in the course of converting fixed allowances into an hourly rate, and without considering the intentions of the parties surrounding the method of calculating fixed allowances and the value of overtime and night work, if a previous judgment is based on the foregoing previous judgment, unfair consequences would arise in the calculation of the hourly rate of fixed allowances. It is unreasonable to mean that the previous judgment contravenes the purpose of protecting workers under Article 56 of the Labor Standards Act. In such cases, the Majority Opinion, which does not consider the premium rate, is rather unfair hourly rate calculation method.

C) We examine the problems of the Majority Opinion based on a simple case.

(1) In the same workplace, workers Gap (a) who work for 20 hours a week, 10 hours a week, and 35 hours a week, and workers Eul (a) who work for 35 hours a week. In this case, both workers must receive wages exceeding 35 hours a week ordinary wage. The employer’s payment of fixed allowances for the same amount is unreasonable in that both workers consider “work with a value equivalent to 35 hours a week.” Rather, considering the characteristics of night work separate from weekly work within standard working hours, it is a reasonable method of calculation pursuant to Article 56 of the Labor Standards Act. If an employer pays different amount of fixed allowances to Gap and Eul without any special circumstance, it appears difficult for the employer to accept in terms of justifiable evaluation of the value of labor, and it is difficult for both the employer and Eul, who are employers and two workers, and the labor union to which they belong. Unless there is a special provision between Gap and Eul, it is difficult to fully understand that the employer would pay different amount of fixed allowances in proportion to the hourly ordinary wage, and thus, it is difficult in the Majority Opinion’s position that it is unreasonable.

(2) In such a virtual case, an employer paid the same fixed allowances to a worker A and a worker B without expressly stipulating the hourly rate of the fixed allowances, and the said fixed allowances are deemed to have the nature of ordinary wages. According to the Majority Opinion that only convert the fixed allowances into the number of working hours without considering the value of labor. As a result, the hourly ordinary wage of an employee A would vary even if the employee A received the fixed allowances equivalent to the value of 35 hours of hourly ordinary wages by providing labor equivalent to the same amount as the hourly ordinary wage of an employee B. As a result, an employee A would receive a higher number of statutory allowances calculated based on the ordinary wage than the employee A. As a result, the Majority Opinion results in an unreasonable outcome than the employee A. The Majority Opinion emphasizess only the number of working hours provided without considering the value of night work that is distinguishable from the weekly working hours within the standard working hours, which would result in such improper outcome. Not only the parties in a labor relationship but also the members of the society would make it difficult for the Majority Opinion to agree with the method of calculating the hourly ordinary wage.

(3) Furthermore, by modifying the aforementioned virtual case, an employer would consider the case in which the employer paid a fixed allowance in proportion to the work hours per week to the employee A and the employee B, as in the logic and logic of the Majority Opinion. In such a case, the hourly ordinary wage of two workers who receive different fixed allowances is equally calculated. As a result, various statutory allowances related to the fixed allowances calculated based on ordinary wages are equally calculated as long as other conditions are different. However, in comparison with the total amount of wages of both workers, the difference in the amount of fixed allowances would result in the conclusion that the employee A constitutes a low-income worker who receives less wages than the employee B

According to the Majority Opinion, in cases where an employer grants the same fixed allowances to two employees as in the former virtual case, as in the latter virtual case, the employer becomes an employee with higher wages compared to the latter, while on the other hand, in cases where an employer grants a different fixed allowances to two employees as in the latter virtual case, it would result in the formation of a very natural legal relationship with which the employer becomes an employee with lower wages. It is difficult to understand whether the Majority recognizes that such conclusion would result in the Majority Opinion, and whether such result would be normatively acceptable.

(4) In conclusion, considering all the purport of Article 56 of the Labor Standards Act and the value of work performed through night work, it is reasonable to deem that the value of work performed by two workers per hour is the same, and that the same wage, including the same fixed allowance, is paid to two workers. It is difficult to agree with the Majority Opinion deriving from the different outcome.

2) The previous judgment did not expressly state the reasons for the determination of premium rate when adding up the number of overtime hours and night work hours included in the number of total working hours to calculate the hourly ordinary wage of a fixed allowance paid as wages for agreed working hours in excess of standard working hours. However, as in the instant case, the previous judgment was a case where the parties’ intent in a labor relationship should be interpreted that the payment for overtime and night work should be made in consideration of the premium rate prescribed in the Labor Standards Act for fixed allowances paid for agreed working hours in excess of standard working hours. As a result, it was reasonable to convert the fixed allowance into an hourly rate with the number of overtime and night work hours in consideration of the premium rate and night work hours in consideration of the premium rate. Of course, it is reasonable to conclude the previous judgment that considers the premium rate in terms of the justifiable evaluation of the value of labor. Accordingly, the previous judgment is justifiable, and there is no need

B. Next, we examine the Defendant’s ground of appeal on this part.

The Majority Opinion held that the legal doctrine that the premium rate for calculation of premium pay should not be considered when adding the number of overtime work hours and the number of night work hours is equally applied even in cases where the premium rate has been set in the weekly paid leave allowance. In this case, the Majority determined that the basic weekly paid leave hours (8 hours) without considering the premium rate should be added when calculating the number of total work hours in the instant case. However, it is difficult to agree with the Majority Opinion. The reasons are as follows.

1) A fixed allowance in the form of monthly salary includes the part corresponding to paid holidays under Article 55 of the former Labor Standards Act. Therefore, in order to seek an hourly ordinary wage of a fixed allowance, the part remaining after excluding the part corresponding to paid holidays shall be divided into the number of contractual work hours per month. If it is difficult to exclude the corresponding part, the hourly ordinary wage can be calculated by the method of dividing the fixed allowance paid in the form of monthly salary by the number of total work hours after calculating the monthly total work hours in addition to the agreed work hours (see Supreme Court Decision 97Da28421, Apr. 24, 1998, etc.).

Of fixed allowances in the form of monthly pay, “the part corresponding to paid holidays” under Article 55 of the former Labor Standards Act refers to “the part corresponding to the hours treated at pay.” Therefore, the scope of exclusion from fixed allowances ought to be determined depending on the number of hours paid during paid holidays, and the calculation of the number of total working hours ought to be reflected in the calculation of the number of total working hours. The Majority Opinion on different premise is difficult to accept.

Examining the instant case as examples, each of the instant wage agreements clearly stipulate that weekly paid holiday allowances is “12 hours (basic pay rate).” This means that the Defendant would pay the 12-hour basic rate as weekly paid holiday allowances, and that, in other words, the number of hours paid during weekly paid hours is 12 hours. Therefore, in order to calculate the hourly ordinary rate of fixed allowances in the form of monthly paid pay, the total number of hours of working ought to be calculated by aggregating the 12 hours per week paid during weekly paid holiday allowances.

2) The Majority Opinion seems to have understood that each of the instant wage agreements determined weekly holiday allowances as “(basic rate of eight hours) eight-hours” and that the premium rate of 150% shall apply when paying weekly holiday allowances. However, the Majority Opinion is unreasonable for the following reasons.

First, each of the instant wage agreements provides that “12 hours (8 hours + 4 hours)” and “8 hours x 150/100 = 12 hours.” If the collective agreement provides that “ weekly holiday allowances are “12 hours based on the basic hourly rate,” there is no difference in the fact that the weekly holiday working hours should be reflected in calculating hourly ordinary wages. However, it is difficult to find out that the aforementioned provisions of each of the instant wage agreements are different from those of “12 hours based on the basic hourly rate.”

Second, the same applies to the understanding of each of the instant wage agreements with the Majority Opinion. The weekly paid hours refer to the number of hours treated as paid during weekly paid holidays because the employer actually did not provide labor, but the employer pays weekly paid paid holiday allowances. If the premium rate is set in weekly paid holiday allowances, the weekly paid holiday allowances are increased accordingly, and the number of paid hours is increased accordingly, so the number of paid hours during which the premium rate is considered should be reflected in the calculation of hourly ordinary wages.

C. We think of the meaning of the legal interpretation of the court to deal with the case of claiming wages of workers and give up the direction of the correct interpretation.

First of all, in terms of determining the rights and duties related to past legal relations, the court’s ruling may result in the result of an unreasonable payment to workers, depending on which the court takes a certain position on individual issues related to the claim for wages. If it takes the same opinion as the majority opinion while modifying the previous ruling in relation to the method of calculating hourly ordinary wages, which is the issue of this case, the Plaintiffs, who are workers, may receive more wages from the employer for the past certain period for which a variety of statutory allowances are sought. It

However, in view of the fact that a court ruling has an important function to determine the legal principles on individual issues and form a legal order, it cannot be said that the court’s position on individual issues is necessarily directly connected to the Plaintiffs’ pay interest, which is the workers. This is because, based on the legal principles declared by the Supreme Court, parties in labor relations in the future will newly enter into collective agreements or labor contracts, and in the process, to determine new working conditions in accordance with their legal principles based on their premise. For example, when the legal principles that the hourly ordinary wage of fixed allowances should be calculated in a way that does not consider additional rates in relation to the calculation of total working hours in accordance with the Majority Opinion are declared in this case, an employer who becomes aware of the burden of wage cost increase has a strong incentive to form new working conditions by reducing various fixed allowances or delaying the time of increase, and as a result, under the working conditions determined accordingly, it would not substantially enjoy benefits of increase in various legal allowances for workers in the future. Likewise, even if the State, with the intent of wage increase in the future, is able to establish a minimum wage rate for workers in accordance with the legislative wage law.

Therefore, from the perspective of the formation of legal order, which can be seen as the core of the court's trial, the proper interpretation of the parties' intent in labor relations within the framework of the mandatory law and the relevant laws and regulations premised on the objective and reasonable interpretation is basically required. However, without considering the overall relationship between the structure and process of the overall determination of working conditions, such as wages, and the labor conditions, the worker's failure to pay attention to individual issues should not be the standard of interpretation.

D. We examine the conclusion of the instant case.

In order to calculate the hourly ordinary wage of a fixed allowance paid in the form of a monthly or daily rate, the lower court did not err by misapprehending the legal doctrine regarding the calculation of hourly ordinary wage in its total working hours, including overtime working hours and night work hours taking into account each additional rate, and did not adversely affect the conclusion of the judgment, contrary to what is alleged in the grounds of appeal. Meanwhile, the lower court erred by misapprehending the legal doctrine on the calculation of hourly ordinary wage, thereby failing to take into account the premium rate for weekly paid leave allowances, while including the monthly average weekly paid hours in total working hours for calculating the hourly ordinary wage, which is paid in the form of a monthly wage, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal on this part

For the foregoing reasons, we express our concurrence with the Majority Opinion.

11. Concurrence with the Majority by Justice Park Sang-ok, Justice Min You-sook, and Justice Kim Dong-soo

We supplement the Majority Opinion on the method of calculating hourly ordinary wages.

A. We review the issues of this case in light of the significance and function of ordinary wages.

The Labor Standards Act provides “ordinary wage” as the basis wage for guaranteeing the minimum level of average wage and calculating premium for overtime, night, and holiday work, pre-announcement of dismissal, annual leave allowance, etc. In determining whether certain wages belong to ordinary wage, it shall be determined according to its objective nature based on whether the said wage is regularly, uniformly, and fixed as money and other valuables paid to workers as remuneration for contractual work, and it shall not be determined by formal standards, such as the name of the wage or the length of the payment cycle thereof, etc. (Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013).

The Labor Standards Act grants functions as the standard wage for calculating premium pay for overtime, night, and holiday work. Accordingly, the wage for extended, night, and holiday work under the Labor Standards Act shall be at least [hour ordinary wage x the number of extended, night, and holiday work hours x the additional rate (150%).

In such a case, the term “ordinary wage” means that the “total amount of ordinary wage” during a specific period is calculated by dividing the “total amount of ordinary wage” into the “total amount of standard hours for the calculation of the ordinary wage during the specific period.” In such a case, the total amount of the ordinary wage becomes more than the amount of the hourly ordinary wage as the “total amount of the ordinary wage” is stated, and the total amount of the ordinary wage is less than the amount of the hourly ordinary wage as the “total amount of the ordinary wage calculation standard hours” is stated, and the “total amount of the ordinary wage” is less than the amount of the hourly ordinary wage. The key issue in litigation related to ordinary wage raised by an employee is whether a specific wage item constitutes ordinary wage falls under the “total amount of ordinary wage.” On the other hand, the issue in the instant

B. We examine the Dissent’s validity of the grounds of appeal by the Plaintiffs.

1) The Dissenting Opinion’s assertion that the Majority Opinion neglected the parties’ intent regarding the method of calculating hourly ordinary wages is unreasonable.

A) The Dissenting Opinion argues that the Majority Opinion did not consider the intent of the parties in a labor relationship with respect to the determination and payment of fixed allowances. As long as matters concerning wages are not contrary to the mandatory law, the parties are freely able to determine as long as they are not in conflict with the mandatory law, and how to convert fixed allowances into an hourly rate is also the issue that the parties ought to confirm their intent by interpreting collective agreements or labor contracts, which serve as the basis for the payment of fixed allowances. If the intent of the parties is confirmed, it is reasonable

However, the legal doctrine of the Majority Opinion is premised on a matter in which it is difficult to deem that an employer has formed the intent of a party to the method of calculating the hourly rate of a fixed allowance. The reason for determining the hourly rate of the ordinary wage or determining the method of calculating the hourly rate is to accurately calculate and pay statutory allowances. However, in cases of a fixed allowance not treated as ordinary wage, the employer does not need to determine the hourly rate of a fixed allowance or form an intent on the method of calculating the hourly rate of a fixed allowance. Therefore, barring any other circumstances, it cannot be interpreted that the parties in a labor relationship have formed an intent on the method of calculating the hourly rate of a fixed allowance between the parties in a labor relationship, barring any other circumstance. Furthermore, it is inevitable to deem that the parties’ intention on the method of calculating the hourly rate of a fixed allowance was not determined on a hourly basis, not on a daily basis, on a daily basis or monthly basis, and on the other hand, on the other hand, the Majority Opinion’s criticism that the parties in a labor relationship already

As can be seen, there is no special intent between the parties regarding the method of calculating the hourly rate of a fixed allowance when converting a fixed allowance paid in return for agreed working hours in excess of standard working hours, and furthermore, insofar as there is no statutory provision on the method of calculating the hourly rate of a fixed allowance, it is reasonable and reasonable to divide the number of working

B) The Dissenting Opinion derived from the perception that the same intent is reflected in a fixed allowance, given that the Dissenting Opinion had determined one point five times the basic hourly rate for overtime and night work in this case. However, the fact that the employer had paid statutory allowances based on the basic hourly rate, and that linking the intent of the hourly rate for fixed allowances is a logical compromise. This is because the former is based on the outcome of compelling the former to pay 150% or more of the ordinary wage per hour for statutory allowances, such as overtime and night work allowances, under Article 56 of the Labor Standards Act, and thus, it cannot be interpreted as an intent for the hourly rate for fixed allowances, which are agreed allowances.

As noted earlier, in the instant case where each wage agreement in the instant case excluded various types of fixed allowances in the form of a monthly salary or daily rate from ordinary wages, it is interpreted that there is no intent of the parties to the method of calculating the hourly ordinary wage with respect to such fixed allowances. Nevertheless, the Dissenting Opinion emphasizing the parties’ intent as to the hourly rate of fixed allowances does not mean that “the specific intent regarding the hourly rate of fixed allowances is confirmed” under the instant collective agreement and each wage agreement, but rather, that “the specific intention regarding the hourly rate of fixed allowances ought to be confirmed.” The Dissenting Opinion argues that the parties’ intention should be objectively and reasonably inferred, but it would be the fiction of a specific intention. Ultimately, it is difficult to accept as the Dissenting Opinion’s assertion that the parties’ intention should be expressed without a clear legal basis.

C) The Dissenting Opinion’s logic is inappropriate in light of the process of the instant lawsuit. In the instant lawsuit process, neither the Plaintiffs nor the Defendant asserted nor proven indirect circumstances to support the intent of the parties, nor did the lower court have deliberated on the content thereof. However, it is doubtful whether the Supreme Court’s “party’s intention” can be recognized as any content.

2) The Dissenting Opinion’s logic is unreasonable even in light of the just evaluation of the value of labor.

A) Article 56 of the Labor Standards Act provides that statutory allowances shall be minimum, and in other words, overtime and night work allowances shall be at least 1.5 times the ordinary wage. Therefore, overtime and night work allowances, which are statutory allowances, shall be paid at an amount equal to or more than 1.5 times the ordinary wage determined, considering the hourly rate of various fixed allowances included in ordinary wages. On the other hand, it is unreasonable to view that Article 56 of the Labor Standards Act should be understood as the provision on the value of labor, and that such value evaluation should be reflected in the fixed allowances, which are naturally agreed upon. According to the Dissenting Opinion, an employer shall pay a fixed allowance, other than legal allowances, in which the hourly rate of night work, among the fixed allowances, is at least 1.5 times the hourly rate of the fixed allowances, and that such restriction is unlawful. However, it is doubtful whether the agreed allowances, other than legal allowances, are subject to any ground.

B) According to the Dissenting Opinion, the Dissenting Opinion assumes that “an employer understood both two workers’ work as “work having a value equivalent to 35 hours per week” and pays a fixed allowance of the same amount as “work having a value equivalent to 35 hours per week,” as examples of “a worker A who works for 20 hours per week, night 10 hours per week, and worker B who works for 35 hours per week.”

The Dissenting Opinion is premised on the premise that the payment of the same fixed allowances to two workers who work the same hours as in the instant virtual case is natural in terms of the reasonable evaluation of the value of labor. However, in principle, it is possible to pay a different amount of fixed allowances according to collective agreements, labor contracts, etc. in consideration of the difference in the form of labor between two workers. As mentioned earlier, it is difficult to agree with the logical premise of the Dissenting Opinion.

In addition, the instant virtual case is the case where the employer’s intent is already determined as “the hourly rate of fixed allowances ± 35 hours.” The legal doctrine stated in the Majority Opinion on the premise that the employer’s intent is premised on such an employer’s intention is not reasonable. As seen earlier, the legal doctrine of the Majority Opinion is premised on the premise that the parties’ intention was not formed. In the instant case where the employer did not form the hourly rate of fixed allowances, and where the employer calculated the hourly rate of fixed allowances in accordance with the legal doctrine of the Majority Opinion on the premise that the hourly rate of fixed allowances would result in the outcome that the hourly ordinary rate of Party A would exceed the hourly ordinary rate of Party B. However, this is a natural consequence derived from the fact that Party A

3) Examining the special nature of the Defendant’s workplace that has agreed to work hours exceeding standard working hours, the Majority Opinion can easily understand the reasonableness of the Majority Opinion.

In a case where an employee and an employer have agreed on the working hours within standard working hours rather than night work hours, the total amount of fixed allowances paid in compensation therefor constitutes ordinary wages. Accordingly, the hourly ordinary wages are calculated when dividing the fixed allowances into contractual work hours. Therefore, there is no room for the Majority Opinion to apply the legal doctrine on hourly ordinary wages to the general working place that agrees on the working hours within standard working hours. However, the Defendant’s working place is a working place that has agreed on overtime work exceeding standard working hours. According to each of the instant wage agreements, daily working hours are 13 hours, and weekly working hours are 65 hours (=13 hours x 5 days). The average working hours of a working place that is 8 hours a day and weekly working 40 hours a week, which are 173.8 hours a day, and monthly average working hours of a working place that is 40 hours a week under each of the instant wage agreements. This is because, in fact, the average working hours of a defendant’s working place under each of the instant wage agreements reach approximately 282.

If an employee decided to work 173.8 hours per month, the monthly fixed allowances received by an employee are remuneration for work 173.8 hours in 173.8. However, in cases where the parties did not agree on the hourly rate of a fixed allowance and an employee decided to work for more than 173.8 hours and 282.44 hours in 282.4 hours, according to the Dissenting Opinion, the monthly fixed allowances are not remuneration for work 282.4 hours, but rather remuneration for work 342.18 hours in 342.18 hours in 282. The increase in the number of overtime hours in excess of the standard working hours, the number of hours corresponding to the standard working hours increases in proportion to the number of hours corresponding to the fixed allowances, and the amount of remuneration for the fixed allowances is reduced pro rata. As such, the Dissenting Opinion points out that the Dissenting Opinion is an unreasonable interpretation that is not easily understandable.

C. We examine the Dissent’s validity as to the Defendant’s grounds of appeal.

The Dissenting Opinion directly explains the instant case as an example. Since each of the instant wage agreements stipulates weekly holiday allowances as 12 hours per week, it is understood that the weekly holiday working hours are equal to 12 hours, which is not reasonable.

Each of the instant wage agreements does not stipulate weekly paid leave hours as 12 hours, but rather states that “ weekly paid leave allowances: 8 hours x 150/100 = 12 hours determined as basic weekly paid leave allowances, and that the premium rate of 150% shall be applied to the weekly paid leave allowances. It is conceptually distinguishable from setting the premium rate for weekly paid leave allowances, the number of hours paid during weekly paid leave hours, namely, the number of hours agreed on weekly paid leave hours, and the number of weekly paid leave allowances paid on weekly paid holidays. Ultimately, it is difficult to deem that the provision setting the premium rate for weekly paid leave allowances is a provision ordering the premium rate to be reflected in the weekly paid leave hours when calculating the hourly ordinary wage of the fixed allowances paid in the form of monthly pay.

(d) in lieu of the conclusion, agree as follows:

From the perspective of the formation of legal order, there is no opinion that the interpretation of the relevant Acts and subordinate statutes based on objective and reasonable interpretation of the parties’ intent and the premise thereof is basically required with respect to the resolution of individual issues of wage claims. From the same perspective, the Majority Opinion is intended to establish reasonable and reasonable standards by comprehensively taking into account the significance and function of ordinary wages, the intent of the parties expressed in the instant collective agreement and each of the wage agreements, the contents of the Labor Standards Act, etc., and it is not unreasonable to conclude a favorable conclusion for either party

On the other hand, the previous decision did not state the reason why the premium rate was considered on any ground, and it was not clear whether the premium rate was the premium rate under the Labor Standards Act or whether the party was the premium rate determined by the agreement. I think that the previous decision was a unreasonable interpretation difficult to find a reasonable ground. It is reasonable to revise the previous decision.

As above, I express my concurrence with the Majority Opinion.

Justices Jo Hee-de (Presiding Justice)