[2] In a case where Gap corporation operating bus passenger transport business constitutes ordinary wages, regardless of whether it is actually used as actual expenses through labor-management consultation, the issue of whether the daily expenses paid to all drivers who provided labor constitutes ordinary wages, the case holding that the judgment below erred by misapprehending the legal principles that the daily expenses do not constitute welfare expenses, on the ground that it constitutes ordinary wages, etc.

[3] In a case where the labor and management agreed to exclude a regular bonus from the ordinary wage and set the wage level on the premise thereof, whether an employee’s assertion that the labor-management agreement becomes invalid and claims additional statutory allowances calculated by including a regular bonus in the ordinary wage violates the principle of trust and good faith, and whether the employee’s claim for additional statutory allowances should be carefully and strictly determined as to whether the employer’s management difficulty or endanger the company’s existence (affirmative)

[4] In a case where Eul, who worked as a driver of a bus passenger transport business company Gap, engaged in regular bonuses, sought additional retirement allowances calculated by including regular bonuses in ordinary wages, violates the principle of good faith, the case holding that Eul's claim for additional retirement allowances cannot be deemed as violating the principle of good faith, on the grounds that it cannot be readily concluded that the regular bonuses are included in ordinary wages, thereby causing serious business difficulties or endangering the existence of the company Gap and thus, it cannot be concluded that Eul'

[5] Whether a trade union's collective agreement with an employer without the employee's individual consent or authorization can conduct such act as waiver or postponement of payment of wages or retirement allowances for which the right to claim specific payment has already occurred (negative)

Whether a certain wage falls under ordinary wages shall be determined according to the objective nature based on whether the wage is paid as money or goods to an employee for a contractual work, which is regularly, uniformly, and fixedly, and not by the formal criteria, such as the name of the wage or the length of the payment cycle.

On the other hand, if an employer pays a certain amount to workers for each working day regardless of whether they are actually employed as such, it shall not be excluded from the wages or ordinary wages on the ground that the money paid as above constitutes actual expenses compensation.

[2] In a case where Gap corporation operating bus passenger transport business constitutes ordinary wages, regardless of whether it is actually used as actual expenses through labor-management consultation, the issue is whether daily expenses paid to all drivers who provided labor constitutes ordinary wages, the case held that the judgment below erred by misapprehending the legal principles that daily expenses do not constitute ordinary wages on the ground that daily expenses were not paid or reduced due to actual expenses, in light of the fact that there are no materials to deem that Gap did not actually use it as expenses, and that daily expenses were paid to the drivers who worked on the same day, and that daily expenses were paid to the drivers who worked on the same day, and that the daily expenses were uniformly paid to the employees who provided the fixed working hours on the working day, but the payment was determined depending on the number of working days, but only if they provided the fixed working hours on the working day, it can be deemed that daily expenses were paid periodically, uniformly, and fixed as compensation for the fixed working hours.

[3] The principle of trust and good faith (hereinafter “the principle of trust and good faith”) refers to an abstract norm that a party to a legal relationship should not exercise a right or perform an obligation in a manner that violates the principle of trust and good faith, taking into account the other party’s interest. In order to deny the exercise of a right on the ground that it violates the principle of trust and good faith, it should have been given to the other party or objectively deemed that the other party has a good faith, and the exercise of a right against such other party’s trust should have reached the degree that it is not acceptable in light of the concept of justice.

If the contents of a labor-management agreement, such as a collective agreement, are null and void in violation of the Labor Standards Act’s compulsory provisions, it would result in denying the legislative intent of the labor-management agreement that violates the principle of good faith. Therefore, such assertion is not a violation of the principle of good faith. However, the application of the principle of good faith is not excluded without exception to the assertion that the labor-management agreement is null and void on the ground that the contents of the labor-management agreement violate the compulsory provisions of the Labor Standards Act. Not only is it necessary to satisfy the general requirements for applying the principle of good faith but also exceptional cases where there are special circumstances to accept the preferential application of the principle of good faith despite the compulsory nature of the Labor Standards Act, the assertion that the labor-management agreement is null and void cannot

Under the premise that a regular bonus in a labor-management agreement does not per se constitute ordinary wages, if the labor-management agreement agrees to exclude a regular bonus from the calculation standard of ordinary wages and sets the level of wages on the premise thereof, the labor-management agreement demands the payment of an additional statutory allowance, etc. based on the regular bonus added to ordinary wages, thereby causing serious managerial difficulties or endanger the existence of the company, may be substantially contrary to the concept of justice and equity.

However, when determining whether to preferentially apply the principle of good faith rather than the mandatory provisions governing labor relations, it is necessary to fully consider the legislative intent of the Labor Standards Act, etc. in order to set the minimum standard of working conditions and guarantee and improve the basic livelihood of workers. Moreover, the management status of an enterprise is an employer, and an employer may change from time to time according to various economic and social circumstances inside and outside the enterprise. Thus, rejection of a worker’s additional legal allowances due to the determination of ordinary wage, etc. on the ground that the company’s additional legal allowances, etc. may cause serious managerial difficulties or endanger the existence of the enterprise, may lead to the actual transfer of risks arising from the management of the enterprise to workers. Therefore, it should be carefully and strictly determined whether the employer’s additional legal allowances, etc.

[4] In a case where the issue is whether it is against the good faith principle to seek additional retirement allowances calculated by including regular bonuses as ordinary wages by Gap's operator who worked as Gap's operator of a bus passenger transport business was against Eul's obligation to seek additional retirement allowances including regular bonuses, the case held that the judgment below erred by misapprehending the legal principles on the ground that Gap's claim for additional retirement allowances should not be determined otherwise because it does not contain any assertion or proof against Gap's annual sales and 6.7% of its capital, while Gap continued to have been in a state of profit and net income for several years, and Gap continued to receive additional retirement allowances including regular bonuses and paid additional retirement allowances, etc., the amount of additional retirement allowances to Gap company should be specified, excluding the part for which the extinctive prescription has already been completed, and how Gap company's cash assets are, and how Gap company's cash flows are different as of the date of closing argument in fact-finding.

[5] Wages or retirement allowances for which specific right to claim payment has already occurred are transferred to the worker's private property area and entrusted to the worker's disposition. Thus, unless an individual consent or authorization is obtained from the worker, the trade union cannot take such action as waiver or postponement of payment only by the collective agreement with the employer.

1. Judgment on the Defendant’s grounds of appeal

A. Regarding ground of appeal No. 1

The lower court, on the grounds indicated in its reasoning, determined that the instant collective agreement should be applied to the tenure of office from the Plaintiff’s membership to the date prior to the amendment of the instant collective agreement.

Examining the record in accordance with the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on disadvantageous changes in collective agreement, contrary to what is alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

The lower court determined that the continuous service allowance and work allowance are fixed wages that are regularly and uniformly paid, and thus, included in ordinary wages.

Examining the record in accordance with the relevant legal doctrine, the lower court did not err by misapprehending the legal doctrine on ordinary wages, contrary to what is alleged in the grounds of appeal.

C. Regarding ground of appeal No. 3

The lower court determined that the Defendant should pay the Plaintiff additional retirement allowance according to the re-calculated ordinary wages, including continuous service allowances and work allowances.

Examining the record in accordance with the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on the principle of trust and good faith, or by inconsistent reasoning, etc.

2. Judgment on the Plaintiff’s grounds of incidental appeal

A. Regarding ground of appeal No. 1

(1) If an employer’s money and valuables paid to an employee constitute wages, such money and valuables are paid as compensation for work, and the employee’s obligation to pay should be continuously and regularly paid as compensation for work, and the employer should be deleted in accordance with the collective agreement, employment rules, etc. In addition, money and valuables that can be deemed as directly related to, or closely related to, the provision of labor may be deemed as compensation for work (see, e.g., Supreme Court Decisions 94Da55934, May 12, 1995; 201Da23149, Jul. 14, 2011).

Whether a certain wage falls under ordinary wages shall be determined based on the objective nature, based on whether the wage is paid as money or goods to an employee for a contractual work, which is regularly, uniformly, and fixedly, and not determined by formal standards, such as the name of the wage or the length of the payment cycle (Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013).

On the other hand, where an employer pays a certain amount to a worker for each working day regardless of whether he/she is actually employed as such, it shall not be excluded from the wages or ordinary wages on the ground that the money paid as above constitutes reimbursement for actual expenses.

(2) Examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, the instant daily allowance was paid periodically, uniformly, and fixed as consideration for contractual work, and thus, can be deemed as included in ordinary wages.

① The Defendant’s labor and management agreed to pay 7,00 won per day to drivers on the day of work, for the price of packing, locking, drinking water, cleaning, and other expenses incurred in working on board.

② According to the above agreement, the Defendant paid the instant daily expenses to all drivers who provided labor regardless of whether they are actually used as actual expenses, and there is no evidence to deem that the Defendant did not pay or reduced the daily expenses on the ground that they were not actually used as actual expenses. In light of these circumstances, it is reasonable to view that the instant daily expenses were paid as the object of labor in relation to the provision of labor to drivers.

③ In a uniform manner, drivers who work at work on the same day received the daily allowance of this case, and even if the amount of payment varies depending on the number of working days, it was determined to receive the daily allowance of this case only if they provide contractual work on the working day.

Nevertheless, the lower court determined that the instant daily expense did not constitute ordinary wages on the grounds stated in its reasoning, including that it constitutes welfare expenses. In so doing, the lower court erred by misapprehending the legal doctrine on ordinary wages, etc., thereby adversely affecting the conclusion

B. Regarding ground of appeal No. 2

(1) The principle of trust and good faith (hereinafter “the principle of trust and good faith”) refers to an abstract norm that a party to a legal relationship shall not exercise a right or perform an obligation in a manner that violates the principle of trust and good faith, taking into account the other party’s interests, by taking into account the other party’s interest. Here, in order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, it should have been given to the other party or objectively deemed that the other party has a good faith. The exercise of the right against the other party’s trust and good faith should have come to the extent that it

If the contents of a labor-management agreement, such as a collective agreement, are null and void in violation of the Labor Standards Act’s compulsory provisions, it would result in denying the legislative intent of the labor-management agreement that violates the principle of good faith, and thus, such assertion is not in violation of the principle of good faith. However, the application of the principle of good faith is not excluded without exception to the assertion that the labor-management agreement violates the compulsory provisions of the Labor Standards Act, on the ground that the contents of the labor-management agreement do not violate the principle of good faith. Not only is it necessary to satisfy the general requirements for applying the principle of good faith but also exceptional cases where there are special circumstances to accept the application of the principle of good faith prior to the application of the principle of good faith despite the compulsory provisions of the Labor Standards Act

Under the premise that a regular bonus in a labor-management agreement does not per se constitute ordinary wages, in cases where the labor-management agreement agrees to exclude a regular bonus from the standard for calculating ordinary wages and sets wage level on the premise thereof, the employer is entitled to pay an additional statutory allowance, etc. based on the ordinary wage by adding a regular bonus to ordinary wages, thereby causing serious managerial difficulties or endanger the existence of an enterprise, which would be remarkably contrary to good faith in light of the concept of justice and equity (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

However, in determining whether to preferentially apply the principle of good faith, rather than the mandatory provisions governing labor relations, it is necessary to sufficiently consider the legislative intent of the Labor Standards Act, etc. that intends to set the minimum standard of working conditions and guarantee and improve the basic livelihood of workers. Moreover, the employer is an employer, and the corporate management status may change from time to time according to various economic and social circumstances inside and outside the company. Thus, if rejection is made on the ground that the employee’s additional legal allowances due to the determination of ordinary wage would cause serious managerial difficulties or endanger the existence of the company, it may result in de facto transfer of risks to workers arising from the management of the company. Therefore, it should be carefully and strictly determined whether the employee’s additional legal allowances, etc. cause serious managerial difficulties to the employer or endanger the existence of the company (see Supreme Court Decision 2015Da217287, Feb. 14, 2019).

(2) Examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, it cannot be readily concluded that the payment of additional retirement allowances by including regular bonuses into ordinary wages would cause serious business difficulties to the Defendant or endanger the existence of the company. Therefore, the Plaintiff’s additional retirement allowance claim cannot be deemed as violating the good faith principle.

① In order to determine whether serious managerial difficulties arise to the Defendant by including a regular bonus in ordinary wages and paying additional retirement allowances, the amount of additional retirement allowances, etc. to be borne by the Defendant should be specified, except for the part for which extinctive prescription has already been completed. However, the Defendant does not assert or prove any assertion on the total amount of additional retirement allowances,

② Also, in order to determine how serious managerial difficulties may arise to the Defendant due to the payment of additional retirement allowances, etc., the Defendant’s cash assets as of the date of closing argument at the fact-finding court are important materials, and how the Defendant’s cash flow is important. The Defendant does not assert any assertion or prove.

③ Meanwhile, the Plaintiff’s claim for additional retirement allowances is merely about KRW 36 million. This is merely about KRW 0.9% of the Defendant’s annual sales, and about KRW 530 million of the Defendant’s capital. Therefore, barring any special circumstance, it is difficult to deem that the Plaintiff’s payment of the amount sought in this case would cause serious managerial difficulties to the Defendant.

④ The Defendant appears to have been in a state of deficit in operating profit and net income for several years before the date of closing argument in the lower court. However, the Defendant maintained a similar level of sales each year and received subsidies equivalent to the above operating loss, while there are no extenuating circumstances to deem the suspension of the above subsidies. Thus, it cannot be readily concluded that the payment of additional retirement benefits causes a serious managerial difficulty directly to the Defendant or the existence of the enterprise is in danger.

(3) Nevertheless, solely based on its stated reasoning, the lower court determined that the Plaintiff’s claim for additional retirement allowance was not permissible in violation of the good faith principle. In so determining, the lower court erred by misapprehending the legal doctrine regarding the good faith principle, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

C. As to the claim for overtime allowance under Paragraph 3 of the ground of appeal

The lower court rejected the Plaintiff’s assertion of unfair deduction for overtime allowance on the grounds stated in its reasoning, including that the Plaintiff consented individually to the deduction for overtime allowance.

Examining the record in accordance with the relevant legal doctrine, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in

D. As to the claim for unpaid overtime allowance among the third grounds for appeal

(1) As wages or retirement allowances for which the right to claim specific payment has already occurred are transferred to the employee’s private property area and entrusted to the employee’s disposition, barring an individual consent or authorization, the trade union cannot take such action as waiver or postponement of payment solely by the collective agreement concluded with the employer (see, e.g., Supreme Court Decisions 9Da67536, Sept. 29, 200; 2016Da32193, Feb. 15, 2017).

(2) Review of the reasoning of the lower judgment and the record reveals the following facts.

① On July 30, 1997, the Defendant entered into an agreement on the payment of overtime allowances (hereinafter “instant agreement”) with the trade union, and accordingly, paid 2,000 won overtime allowances to all drivers on a monthly basis.

② The Defendant did not pay overtime work allowances under the instant agreement to drivers from June 1, 2008, on the ground that the cause for payment of overtime work allowances under the instant agreement ceased to exist.

③ On May 31, 2009, the Defendant agreed with the trade union to not pay overtime work allowances under the instant agreement retroactively on June 1, 2008.

(3) Examining these facts in light of the above legal principles, the labor-management agreement to the effect that the overtime allowance already occurred from June 1, 2008, pursuant to the instant agreement, was transferred to a private property area of an employee and entrusted to the employee’s disposition is null and void, and as long as the Defendant did not assert and prove that the Plaintiff was individually consented or authorized, the Defendant is obligated to pay the above overtime allowance to the Plaintiff.

(4) Nevertheless, the lower court determined that the Defendant’s failure to pay the said overtime pay to the Plaintiff solely based on the circumstances indicated in its reasoning, including the circumstance that there was a labor-management agreement. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of application of the principle of autonomy of agreement or the normative effect of the collective agreement, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the part of the judgment below against the plaintiff except for the part on the claim for overtime allowance which was deducted from the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's remaining supplementary part and the defendant's appeal are dismissed as it is without merit. It is so decided as per Disposition

Justices Park Jung-hwa (Presiding Justice)