March 21, 2017

The defendant shall pay to the plaintiff 1 1,316,143 won, 3,029,01 won, 2,050,663 won to the plaintiff 3, 4,985,543 won, 751,059 won to the plaintiff 5, and 6% per annum from September 23, 2012 to May 23, 2017, and 15% per annum from the next day to the day of full payment.

2. The plaintiffs' appeal and the claim extended in the trial and the defendant's remaining appeals are all dismissed.

3. 5/6 of the total litigation costs are assessed against the Plaintiffs, and the remainder are assessed against the Defendant.

1. Purport of claim

The defendant paid to the plaintiff 1 7,081,103 won, 20,866,461 won to the plaintiff 2, 15,47,532 won to the plaintiff 3, 37,872,771 won to the plaintiff 4, 6,090,806 won to the plaintiff 5, and 20% per annum from September 23, 2012 to January 13, 2015 to the day of full payment (the plaintiff extended his claim in the trial).

2. Purport of appeal

A. The plaintiffs

The part of the judgment of the court of first instance against the plaintiffs shall be revoked. The defendant shall pay to plaintiffs 1 4,646,309 won, 3,211,419 won, 3,419 won to plaintiffs 3, 6,461,798 won, 1,290,958 won to plaintiffs 5, and 6% per annum from September 23, 2012 to January 13, 2015, and 20% per annum from the next day to the date of full payment.

B. Defendant

The part of the judgment of the court of first instance against the defendant shall be revoked, and all plaintiffs' claims corresponding to the revoked part shall be dismissed.

A. Defendant Company is a transportation business entity engaged in passenger transport service, and Plaintiff 1 served as a bus driver at Defendant Company, and the rest of the Plaintiffs served as a bus driver at Defendant Company.

B. Wages paid to the employees of the Defendant Company are determined by collective agreements and wage agreements concluded between the Defendant and the labor union. The main contents are as follows.

< The collective agreement>

[Working Hours]

In principle, working hours shall be 40 hours a week, but may be extended by up to 52 hours a week due to special circumstances of public-interest transportation business.

Article 9 [Extended, Holiday, Night Work]

(1) A company may, upon consultation between labor and management, engage in illumination, extension, holidays, and night work.

Article 10 (Food Hours)

The company shall provide members working on board with meals of not less than 30 minutes each time for not less than three times a day, and the adjustment of meal hours shall be determined by the Labor-Management Council.

Article 11 (Service System of Drivers)

The work system shall be a two-day system, which is based on 40-hour work per week, and the work shall be based on the order of the company to work on board for 5 hours per week, and the one-day holiday system shall be an overtime work and one-day holiday work per day per shooting week.

Article 11-3 (Extended Work Date)

(1) The Central Labor Relations Commission shall set standards for the rate of application, etc. of the working hours curtailment system at the National Labor Relations Commission, and shall be determined by the Labor Relations Council to ensure that the operation of ships and ships is not interrupted according to the characteristics of each company and each route.

(2) Work days of overtime work shall be performed for inside and outside five hours a week: Provided, That in order to minimize inconvenience for citizens who wish to engage in overtime work due to the reduction of overtime work days, workers who wish to engage in additional overtime work may be given an opportunity to engage in overtime work for not less

(3) Where working hours of an extended working day fall short of five hours or exceeds five hours, they shall be offset by a monthly unit.

Article 22 (Reward)

(1) A company shall be divided into six times a year (600% a year) for its members, and shall pay them according to their service performance as follows: Provided, That it shall not pay them for six months from the date of their membership:

The amount of bonus paid on January 1, 1, through February 3, 15, or 100% of the total monthly salary paid on the basis of each payment period from March 1 to March 15, or 100% each time, included in the main sentence, shall be calculated on the basis of 2.3.1, to May 15, to May 15, or 100% of the end of May 1, 2.3, 100% from May 1 to June 7, 100% from July 15 to September 15, 2.8, 10% of the total monthly salary paid on the basis of the payment period each time. < Amended by Presidential Decree No. 10741, Nov. 15, 2005>

(2) No bonus shall be paid to interim retirees during the period for calculating the payment of bonuses.

Article 23 (Retirement Allowances)

A company shall pay a retirement allowance to a person who has served continuously for at least one year as follows at a progressive rate:

The average wage for the continuous service year included in the main sentence shall be 130 days' 275 days' x 3120 days' x 435 days' x 435 days' x 625 days' x 6255 days' x 7300 days' x 8345 days' x 8345 days' x 435 days' x 935 days' x 435 days'

(1) Notwithstanding the main sentence, a member who was employed on or after June 1, 1999 shall be paid statutory retirement allowances in accordance with the Labor Standards Act.

(2) Where any member makes a written request for interim settlement of a retirement allowance, the company shall make an interim settlement of the retirement allowance. Where at least one member makes a request for interim settlement each month, the company shall make an interim settlement, and where at least one member makes a request for interim settlement, it shall make a decision on the interim settlement of the retirement allowance by the Labor-Management Council: Provided, That the terms

Ethical Wage Agreement>

Article 2 (Time for Calculation of Wages)

(1) Five days a week shall be nine hours a week including eight hours of basic work and one hour of overtime work.

(2) For working hours less than nine hours in the morning or in excess of nine hours in light of the characteristics of operation, they shall be offset on a monthly basis, instead of on a daily basis.

Article 4 【Labor System】

The number of years of continuous service by Si salary, ordinary wage, monthly basic wage, and salary grade: In accordance with the following salary table:

At least 19 years from not less than 13 years to less than 16 years from less than 10 years from less than 13 years from less than 10 years from less than 7 years from less than 10 years from less than 7 years from less than 7 years from less than 10 years from less than 10 years from less than 13 years from less than 16 years from less than 16 years from less than 16 years of salary grade 3 of salary grade 4 of salary grade 5 of salary grade 6 of salary grade 7 of the Gu, which

Article 5 [Overtime Work Allowances and Additional Benefits for Standard Hours)

(1) Extended work allowances.

150% of the Si wage shall be paid for overtime work.

(2) Night work allowances.

A. Workers: 2 hours in the morning and 3 hours in addition to those (day wage x 50%) shall be paid.

(3) Week allowances.

1. A basic wage (excluding extended working days) shall be paid to persons who have worked for a prescribed number of days of work per week (excluding extended working days);

2. The period of paid leave per week shall be regarded as a opening period;

[Reward]

Bonuses shall be paid in accordance with Article 22 of the collective agreement.

Article 9 [Basic Daily Adjustments]

A person who falls under any of the following subparagraphs in the monthly basic salary grade for each salary grade of a employed driver shall be adjusted to work:

(1) A person who enters or leaves a school during a month.

(2) Unauthorized absences from office

(3) A person who is in the suspension period of driver license.

(4) The number of days of absence from work due to an injury or disease (in cases of hospitalized or an advanced patient, paid for 20 days).

(5) Number of days exceeding the designated period of paid leave.

(6) Where any crime other than business is committed by law.

(7) If the perpetrator has an accident (excluding cases where he/she has no ability to compensate);

(8) Voluntary security period for a license (excluding a police station).

(9) A person who is unable to drive a motor vehicle according to qualifications for its driver under Article 49 of the Enforcement Rule of the Passenger Transport Service Act

(10) The period of compensation or temporary layoff benefits under the Industrial Accident Compensation Insurance Act.

C. 1) The Defendant Company paid wages to its employees on the 10th day of each month, and paid a monthly basic pay calculated on the basis of the actual number of working days in the event of Article 9 of the Wage Agreement.

2) In addition, the Defendant Company paid the amount equivalent to 1/2 of the total basic salary actually paid during the calculation period of each bonus as bonus (hereinafter “instant bonus”) six times a year to an employee for whom six months have not passed since the date of entry, and the employee who retired during the calculation period of the bonus did not pay all the amount of the bonus corresponding to that period.

D. The Defendant Company calculated and paid overtime work allowances, night work allowances, weekly paid holiday allowances, holiday work allowances, 7 major holiday work allowances, e.g., soft work allowances (hereinafter collectively referred to as “all kinds of allowances”), and annual leave allowances (hereinafter collectively referred to as “all kinds of allowances”), based only on the basic hourly wage except the instant bonus (hereinafter referred to as “basic hourly wage”), to the Plaintiffs. The Defendant Company calculated and paid the monthly basic wage, various allowances, and the instant bonus, based on the basic hourly wage paid during the three months immediately before retirement to Plaintiffs 2, 3, 4, and 5, and paid the retirement allowance accordingly.

E. In addition, pursuant to Article 2 of the Wage Agreement and Article 11-3 of the collective agreement, the Defendant Company: (a) deemed that the Plaintiffs deemed “five day per week work (five hours in basic work; eight hours in overtime work; one hour in overtime work); and (b) paid one-hour overtime allowance (50%) for weekly work regardless of actual work hours to the Plaintiffs; and (c) paid five-hour overtime work allowances (50%) for extended work days.

[Ground of recognition] Facts without dispute, entries in Gap evidence 1 through 9 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the plaintiffs' assertion

1) Unpaid allowances of this case

The instant bonus is a fixed wage to be paid regularly, uniformly, and continuously in return for work, and includes in calculating ordinary wages and average wages under the Labor Standards Act, and various allowances and retirement allowances should be calculated based on the ordinary wages calculated as above. However, as the Defendant Company calculated ordinary wages except the instant bonus and paid various allowances, it is obliged to additionally pay various allowances calculated based on ordinary wages calculated based on the increase in the calculation of the said bonus (hereinafter “instant unpaid allowances”).

2) The unpaid overtime work allowance in the instant case

Article 11-3(3) of the collective agreement and Article 2(2) of the Wage Agreement (hereinafter referred to as “monthly set-off provision”) to set off working hours exceeding or short of the agreed working hours on a monthly basis are null and void in violation of the Labor Standards Act, which is a mandatory provision. Thus, the Plaintiffs’ weekly and extended working hours should be calculated on a daily basis. Although the starting and finishing time of work in accordance with the allocation of the dispatch time, the Defendant Company calculated the starting and finishing time of work in accordance with the bus operation schedule but provided labor by the Plaintiffs while preparing or finishing the bus operation even before or after the dispatch time, such preparation and finishing time (hereinafter referred to as “working preparation time”) should also be included in calculating the above excessive working hours. Accordingly, the Defendant Company is obliged to additionally pay to the Plaintiffs overtime allowances for working hours exceeding the agreed working hours (hereinafter referred to as “unpaid overtime allowances”).

3) Unpaid retirement pay of this case

When calculating the average wage of Plaintiffs 2, 3, 4, and 5 for the three months immediately preceding the retirement date of Plaintiffs 2, 3, 4, and 5, the unpaid and overtime work allowances that should be additionally paid as above should be included. However, as the Defendant Company calculated the average wage without including it, it is obligated to additionally pay the difference in the retirement allowance already paid (hereinafter “instant unpaid retirement allowance”) from the inherited retirement allowance in accordance with the above criteria to the said Plaintiffs.

B. Whether the bonus in this case constitutes ordinary wages

1) Relevant legal principles

The term “ordinary wage” under the Labor Standards Act, which provides for the criteria for calculating premium pay for overtime, night, and holiday work, pre-announcement of dismissal, annual leave allowance, etc., and the minimum amount of average wage, refers to the wage regularly, uniformly, and fixedly paid as remuneration for contractual work, which is ordinarily provided by an employee for contractual work hours. A wage paid at a period exceeding one month may be included in ordinary wage if it is regularly, uniformly, and regularly paid.

The term “fixed wage” refers to a minimum wage that a worker who has worked on a voluntary day regardless of the name of the wage, retires from office on the following day, and is entitled to a reasonable and conclusive wage for the daily work, even if he/she retires from office. As such, if an employee provided contractual work on a voluntary day, regardless of the additional conditions, it can be deemed that the payment is planned to be made as a matter of course and the amount determined in advance is fixed.

In this context, “ condition” refers to a condition that is not yet determined at the time of providing an extended, night, or holiday work on a voluntary date. As such, if the fulfillment of the condition is added on the basis of facts established at the time of the extension, night, or holiday work, such as having a specific career or a certain period of continuous service, it does not hinder the recognition of fixedness. However, regardless of whether a worker has provided a contractual work, the wage that is to be paid only to an employee who is in office at the specified time is in office at the specified time is qualified to receive wages. Such wages are not paid to a person who has provided his/her work at the specified time, but are generally paid without asking him/her of the contents of the provision of the work at the specified time. If the wage is paid on such condition, it is difficult to view that the wage has the nature of remuneration for the so-called “contractual work”, and even if it is provided on a voluntary date, it is difficult to view that the worker has the nature of payment for the work at will prior to the arrival of the specified period, and thus, it should be deemed as 131.

2) Determination

First of all, with respect to whether the bonus in this case is regularly and uniformly paid, the bonus in this case is regularly paid at the time prescribed in Article 22 of the collective agreement, and the payment of bonus only to workers for whom six months have passed after their membership is set forth in certain conditions under which bonus can be paid, and as a worker meeting such conditions is paid a bonus, it cannot be deemed that the bonus in this case is not uniformly paid to workers for less than six months of their membership.

However, in light of the following circumstances as to whether the bonus in this case is paid and the amount of the bonus in this case is determined regardless of actual work performance, and whether the bonus in this case constitutes a fixed wage, i.e., the bonus in this case is calculated based on the basic salary actually paid during the bonus calculation period, and the basic salary actually paid is calculated and paid according to the actual work days under Article 9 of the Wage Agreement. Thus, the bonus in this case is calculated based on the actual work days and the actual work days, and the amount of the bonus in this case is changed depending on the actual work days. ② The bonus in this case differs depending on whether the retired person was paid at all during the bonus calculation period (the amount of the bonus in this case is not paid by the day of retirement) and whether the employee was employed until the expiration of the bonus calculation period. In light of the above circumstances, the bonus in this case differs depending on actual work performance, and thus, it cannot be deemed as a fixed wage.

Therefore, this case’s bonus cannot be deemed as “fixed wages,” and it does not constitute ordinary wages.

C. Determination as to the claim for unpaid allowances of this case

Since the bonus in this case does not constitute ordinary wages, this part of the plaintiffs' assertion based on this premise is without merit to further examine.

D. Determination as to the claim for overtime allowances payable in the instant case

1) Effect of the monthly set-off provision

In full view of the aforementioned evidence, the following circumstances, i.e., (i) the Plaintiffs are somewhat changed depending on the route in charge and time, but the Plaintiffs were working for more than 8 hours less than 12 hours based on weekly labor as stated in the attached Table 1. The details of overtime work hours; (iii) even if the actual working hours fall short of 5 hours per Agreement, the Defendant Company considers the Plaintiffs’ actual working hours to have provided 8 hours per week, 1 hour overtime, 5 hours per hour overtime, and 5 hours overtime, and paid overtime allowances, and ② the Defendant Company considered to have provided 2 hours per hour, 3 hours per week, and night work, and paid night work allowances. However, the Plaintiffs’ actual night work hours fall short of 8 hours per week, as indicated in the attached Table 1. Night work hours, and the extended work hours do not fall short of 3 hours per month, and it can be deemed that the employer’s provision can be deemed that the employer’s provision was invalid by considering the overall purpose of set-off under the Labor Standards Act.

2) Whether the hours of operation are recognized

The following facts can be acknowledged in full view of the statement No. 10 and the non-party witness testimony of the first instance trial. According to this, it is reasonable to view that the plaintiffs provided labor for 20 minutes average of the working day in preparing and finishing the operation hours other than the operation hours stated in the dispatch time table. Thus, the time when the plaintiffs' operation hours include 20 minutes as the preparation time of operation shall be deemed to be the "total working hours" of the plaintiffs.

① The Plaintiffs, who worked at a bus time prior to operation hours under the schedule, sign and seal on the work on board in the bus room, take a drinking test, and receive a ticket and move the fare to a deposit room with a distance of 50 through 60 meters from the bus room, and then install the fare box and the vehicle key to the bus and operate the Seoul Bus Transport System (Bms).

(2) When bus operation hours vary, the Plaintiffs are moving from the departure of a vehicle in front of the dispatch room to the waiting point, and they start work to return to the Defendant Company after the operation has been completed, return of the dispatch ticket, deposit storage, maintenance status, checking of the condition of maintenance, cleaning, etc.

③ Workers of the Defendant Company need to set up gas charging stations within a distance of about 40 minutes for bus gas filling.

④ In addition to the parking lot in the Defendant Company, the buses of the Defendant Company are parked in a way that is divided into approximately 30 to 80 meters away from the Defendant Company’s parking lot, a plaza parking lot with approximately 100 to 150 meters away from the 1k away from the Defendant Company, and approximately 1k away from the original parking lot. In a case where a bus to be operated is parked in an outside place of the Defendant Company, or a bus operated is parked in the above outside parking lot, additional time is required for preparation for operation or completion.

⑤ Considering the above circumstances, the employees of the Defendant Company seem to work 30 minutes prior to the first operation hour.

3) Whether the waiting time is included in working hours

The defendant asserts that the waiting time between the starting time of operation and the starting time of operation should be deducted from working hours.

The working hours under the Labor Standards Act refer to the hours during which a worker provides labor under the direction and supervision of the employer. Even if a worker does not actually engage in work during working hours, such hours are not guaranteed to the worker free use as a rest time, but are actually under the direction and supervision of the employer. (See Supreme Court Decision 2006Da41990, Nov. 23, 2006, etc.).

In light of the following circumstances, the facts acknowledged earlier, Gap evidence No. 10, the testimony of the non-party witness of the first instance trial, and the overall purport of the pleadings, i.e., ① the waiting time is one time after the end of operation and the time before the start of operation following the end of operation, and the actual bus operation time is not secured due to changes in its nature, and ② the time when operation is delayed due to road circumstances, etc., even if workers are unable to rest in the waiting time, the waiting time should be prepared for the following operation even if the waiting time remains long, and ③ the waiting time remains long, the average of 30 minutes in the first, the end of the waiting time, the remaining about 10 minutes in the case of the stop, and the fact that the point of view is less than 20 minutes in the case of the first, the waiting time is less than 10 minutes, and the defendant company cannot be deemed to have freely used such waiting time, and all of the above waiting time should be deemed as working hours under the direction and supervision of the employer, and thus, the defendant's assertion is not reasonable.

4) Specific calculation

The Plaintiffs’ “working hours” by day, “total working hours” calculated by adding 20/20 of the hours of operation to the above operation hours, and “daily overtime working hours” exceeding or falling short of daily agreed working hours from the above total working hours are as indicated in the corresponding column for the details of excess working hours as stated in attached Form 1. The monthly overtime working hours calculated by offsetting the hours falling short of the monthly overtime hours by the monthly unit by applying the provisions of offsetting the said “daily overtime working hours” by the monthly unit are as indicated in the column for “total working hours” in the lower part of each corresponding month.

If the above-mentioned overtime work hours multiplied by 150% of the hourly wage and the plaintiffs are calculated with overtime work allowances to be paid in addition by 11,316,143 won, 22,291,895 won, 3273,978 won, 43,564,765 won, and 5642,504 won, as stated in the corresponding column for overtime work allowances.

E. Determination as to the claim for unpaid retirement benefits of this case

1) Facts of recognition

A) The remaining plaintiffs except the plaintiff 1's membership dates and retirement dates, the average wage payment days, and the basic salary, bonuses, and various allowances that the above plaintiffs received during the three immediately preceding months of retirement are as follows.

Plaintiff 9,624,328 won on March 1, 201, 201, which was included in the main sentence, for the total number of days of payment of the average wage for the day of retirement from office as of April 18, 201, Plaintiff 4, 10,290,102 won on April 55, 201, and KRW 8,057,782 won on February 58, 2012, 201, Plaintiff 395, Oct. 7, 2009, KRW 495,353,156 won on October 7, 2007, and Plaintiff 4, April 27, 2017, Plaintiff 10,290,102 won on April 55, 2012, and KRW 58,057,782 won on February 3, 2012.

B) The Defendant Company paid 28,872,984 won as retirement pay to Plaintiff 2, and 50,324,045 won to Plaintiff 3, and 62,758,312 won to Plaintiff 4, and 10,474,155 won to Plaintiff 5.

C) Meanwhile, Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff 5, as indicated in the attached Table 1. Meanwhile, as seen earlier, were to have worked in excess of the agreed working hours, as well as overtime allowances equivalent to overtime working hours, ordinary wage, and above overtime working hours during the three months immediately preceding the retirement of the Plaintiffs, are calculated as listed in the following table.

Plaintiff 28.9 hours, 199 won, 35,426 won, 28.27 hours and 7,789 won, 330,292 won, Plaintiff 492 won, 49.85 hours and 8,703,022 won, 592 hours and 7,461 won, 84,160 won, each of which was 28.27 hours and 7.85 hours and 7,703 won per 91, and 23,022 won, Plaintiff 592 hours and 7,461 won per 592 days.

Note 1)

[Reasons for Recognition] The fact that there is no dispute, each entry in Gap evidence Nos. 4 through 9 (including the provisional lot number list), and the whole purport of the pleading.

2) Calculation of average wages

According to the above facts, the above plaintiffs shall be additionally paid KRW 235,426 as overtime pay during the calculation period of each retirement allowance, KRW 330,292 as well as KRW 423,02 as well as KRW 584,160 as the total amount paid during the three months immediately preceding the date of retirement. Thus, the above amount is calculated by adding the above amount to the total amount paid by the above plaintiffs during the three months immediately preceding the date of retirement.

A) Plaintiff 2 109,667

= (Total wage of KRW 9,624,328 + Additional work Allowance of KRW 355,426) ¡À91 days

B) Plaintiff 3 105,254

= (Total wage of KRW 9,353,156 + Additional overtime work allowances of KRW 330,292) ¡À92 days

C) Plaintiffs 4 115,638

= (Total amount of benefits = 10,290,102 + Additional amount of overtime pay: 233,022) ¡À91 days

D) Plaintiffs 58,499

= (Total wage = 8,057,782 + Additional work Allowance + 84,160 won) ¡À92 days

(iii)the calculation of retirement allowances;

If each retirement allowance is determined based on the average daily wage of the above plaintiffs as above, it is as follows.

A) Plaintiffs 29,610,090

= 109,667 won per day average wage ¡¿ 270 days per payment day of average wage.

B) Plaintiffs 352,100,730 won

= 105,254 won per day average wage ¡¿ the number of days paid as average wage 495 days;

C) Plaintiffs 464,179,090

= 115,638 won per day average wage ¡¿ 555 days per day average wage.

D) Plaintiffs 5 10,582,710

= 88,499 won per day average wage ¡¿ Number of days paid as average wage 19.58

4) Calculation of accrued retirement allowances of this case

Therefore, the unpaid retirement allowance that the defendant should pay to the above plaintiffs is as follows.

A) Plaintiffs 277,106

= 29,610,090 - Retirement allowances paid in = 28,872,984

B) Plaintiffs 31,776,685

= 52,100,730 - Retirement allowances already paid = 50,324,045 won

C) Plaintiffs 41,420,778

= 64,179,090 - Retirement allowances paid in = 62,758,312

D) Plaintiffs 5 108,55

= 10,582,710 - Retirement allowances paid in = 10,474,155 won;

F. Sub-committee

Therefore, the Defendant Company has an obligation to pay Plaintiff 1 3,029,001 as the unpaid overtime pay of KRW 1,316,143 as well as unpaid overtime pay of KRW 3,029,00 as the unpaid overtime pay of KRW 2,291,895 as well as KRW 737,106 as retirement pay + KRW 737,106 as well as KRW 2,050,663 as well as KRW 273,978 as retirement allowance + KRW 1,776,68 as well as KRW 1,985,543 as well as KRW 4,985,543 as well as KRW 3,565 as well as KRW 1,420,778 as well as KRW 751,059 as well as KRW 50 per annum from the following day to the 25th day of the 20th day of the instant lawsuit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims shall be dismissed for reasons. Since the judgment of the court of first instance is partially unfair, the part against the defendant company ordering payment in excess of the above amount among the judgment of the court of first instance shall be revoked, and the plaintiffs' claim corresponding to the revoked part shall be dismissed, and the plaintiffs' appeal shall be expanded from the appeal of the plaintiffs and the trial and the remaining appeal of the defendant company shall be dismissed for all reasons. It is so decided as per Disposition.

(attached Form omitted)

판사 김광섭(재판장) 홍은숙 임샛별

1) Excess working hours 】 Ordinary wage 】 150%