2016Da39545 (Consolidated Wage)

It is as shown in the attached list of plaintiffs.

[Defendant-Appellant] Defendant 1

Attorney Son Ji-yol, Kim Won-won, Choi Hong-ho, Counsel for the plaintiff-appellant-appellant

Judgment

1. Regarding the plaintiffs' grounds of appeal

(1) The court below acknowledged the fact that the defendant paid to the plaintiffs an amount equivalent to 100% of the standard amount of payment stipulated in the collective agreement as bonus (hereinafter "the bonus in this case") for each even number of months, and determined that the defendant is liable to pay legal allowances calculated by adding the bonus in this case to ordinary wages.

On the other hand, the court below rejected the plaintiffs' assertion that the defendant paid wages to production workers, including the plaintiffs, in the form of monthly salary, including weekly holiday allowances as prescribed by the Labor Standards Act and holiday allowances for workers' day, and that the bonus paid every two months already included weekly holiday allowances and holiday allowances for workers' day, and that the bonus paid every two months already included weekly holiday allowances and workers' day, it sought the difference between weekly holiday allowances calculated by including the bonus in the ordinary wage and paid holiday allowances for workers' day, and rejected the plaintiffs' assertion that the difference between the weekly holiday allowances and paid holiday allowances based on the average wage including weekly holiday allowances and paid holiday allowances for workers' day as above.

(2) However, it is difficult to accept the above determination by the lower court.

Among fixed allowances paid to an employee on a daily basis or on a daily basis for a monthly basis or for a period exceeding one month in addition to the basic hourly wage or basic daily wage, there are no statutory allowances, which are paid deeming as working even if he/she actually does not work on paid holidays granted under Article 55 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018). Therefore, in a case of an employee on a hourly basis or on a daily basis, a claim for the difference between an hourly paid allowance and an weekly paid holiday allowance calculated based on the hourly ordinary wage newly calculated, including a fixed allowance paid on a monthly basis or for a period exceeding one month under the Labor Standards Act, and the amount of paid weekly paid holiday allowance may not be deemed as overlapping a claim for weekly paid holiday allowance (see, e.g., Supreme Court Decisions 2009Da74144, Jan. 28, 2010; 200Da1575, Aug. 2014). 205.

According to the reasoning of the judgment below and the records, it can be seen that there are monthly salary and daily salary system for workers belonging to the defendant, and that the basic salary for the plaintiffs in the defendant's wage ledger for the plaintiffs is calculated by multiplying the principal salary determined on a daily basis by the actual working days. Thus, it is reasonable to view that the plaintiffs' wages were paid on the one-time date determined each month, even if they were paid the wages, they constitute daily salary system workers.

Examining these circumstances in light of the aforementioned legal principles, the lower court should have deliberated as to whether the Plaintiffs constitute a daily rate worker, and determined whether the lower court could claim the difference between the interim settlement of accounts based on the average wage, including the weekly paid holiday allowance and the paid holiday allowance, calculated based on the hourly ordinary wage calculated based on the calculation of the bonus of this case, as the bonus of this case constitutes a fixed allowance paid at a certain period exceeding one month, in addition to the basic daily rate, and the weekly paid holiday allowance and the paid holiday allowance, calculated based on the hourly ordinary wage, and the difference between the paid amount.

Nevertheless, solely based on its stated reasoning, the lower court erred by misapprehending the legal doctrine on weekly holiday allowances, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. In the Defendant’s grounds of appeal, regarding the part concerning overtime work allowances for overtime work hours exceeding 40 hours a week, the lower court determined that, on the grounds stated in its reasoning, the overtime work hours exceeding 40 hours a week should be paid in addition to 50% of overtime work allowances for overtime work hours exceeding 40 hours a week, and that, on the other hand, overtime work allowances should be paid in duplicate for overtime work hours exceeding 40 hours a week.

In addition, the lower court determined to the effect that, when calculating the unpaid interim retirement allowance against the Plaintiffs as indicated in the [Attachment 4] of the lower judgment, overtime allowance calculated in duplicate as above is included in the average wage for calculating the interim retirement allowance.

(2) However, it is difficult to accept the above determination by the lower court.

The hours of holiday work under the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018; hereinafter “former Labor Standards Act”) shall be deemed not to be included in standard weekly working hours and weekly overtime working hours. As such, premium pay for holiday work and overtime work cannot be paid in duplicate (see Supreme Court en banc Decision 2011Da12391, Jun. 21, 2018).

Therefore, this part of the judgment of the court below is erroneous by misapprehending the meaning of "one week" as stipulated in Articles 50 and 53 of the former Labor Standards Act, and the legal principles on the payment of each additional wage for holiday work and overtime work, which affected the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Chief Justice Cho Jae-hee

Justices Kim Jae-in

Justices Lee Jae-hwan

A person shall be appointed.

A person shall be appointed.