[2] Criteria to determine whether an agreement on the comprehensive wage system was established

[3] Whether an employer is allowed to dispute working hours on the ground that working hours fall short of the actual working hours agreed upon (negative)

[4] The method of calculating the amount of a monthly salary or fixed allowance as an hourly ordinary wage in a case where a worker received a monthly wage as a wage for the agreed working hours exceeding the standard working hours under Article 50 of the Labor Standards Act, or received a monthly fixed allowance along with the basic hourly wage

[5] Criteria for determining whether a certain wage constitutes "ordinary wage"

[6] In a case where a certain amount per year continuous service was paid to a worker who has been employed for more than one year by adding a certain amount according to an increase in the number of years of continuous service, the case affirming the judgment below that the above continuous service additional amount is included in ordinary wages

[7] The case holding that the court below erred by misapprehending the legal principles, in a case where there is room to regard the bonus as ordinary wages in a case where there is room to regard it as a case where the above bonus as ordinary wages in a case where a worker who has been employed for more than six months has paid quarterly a " bonus" calculated by applying each rate which was set in advance according to the increase in the number of years of service

[8] Whether the “daily leave allowance” under Article 55 of the Labor Standards Act or the “monthly leave allowance” under the former Labor Standards Act is an allowance calculated based on ordinary wages (affirmative)

1. As to the Defendant’s ground of appeal

A. As to the grounds of appeal Nos. 1 and 2

(1) In principle, when an employer concludes a labor contract, it is reasonable to determine the basic wage for the employee and pay the total sum of various allowances based on that determination (see Supreme Court Decision 96Da24699, Mar. 24, 1998). However, even if a wage payment contract or collective agreement was concluded under the so-called comprehensive wage system with the contents that the total sum of various allowances is determined as monthly wage or daily wage without calculating the basic wage, or that a certain amount is paid as various allowances, it shall be valid unless it is disadvantageous to the employee, such as including working conditions that do not meet the standard prescribed under the Labor Standards Act.

However, whether an agreement on the comprehensive wage system was established shall be determined specifically by comprehensively and comprehensively taking into account various circumstances, such as working hours, form and nature of work, unit for wage calculation, details of collective agreement and rules of employment, and actual conditions of the same workplace as the same kind of work, etc. In individual cases, even if it is naturally anticipated that overtime, night, and holiday work will be performed by nature of work, cases where a collective agreement, rules of employment, wage regulations, etc. stipulate that overtime, night, and holiday work allowances, etc. are clearly divided and paid separately from basic pay, do not constitute the comprehensive wage system, and it cannot be readily concluded that there was an agreement on the comprehensive wage system as above, solely on the ground that there was an agreement on overtime hours exceeding a certain working hours in a collective agreement, etc., or that there was an agreement on the comprehensive wage system, including basic pay, etc., and that the wage rate was set based on the amount including allowances (see Supreme Court Decision 2008Da578

According to the reasoning of the lower judgment, the lower court determined that the instant collective agreement and wage agreements concluded between the border area motor vehicle trade union (hereinafter “trade union”) and the border area bus transport business association (hereinafter “business cooperative”) to which the Defendant belongs as a member could not be deemed as an agreement on the comprehensive wage system, after comprehensively taking into account the adopted evidence.

In light of the above legal principles and records, the above judgment of the court below is just, and it did not err by misapprehending the legal principles as to the comprehensive wage system as otherwise alleged in the ground of appeal by the defendant.

(2) If a labor-management agreed to consider a certain number of hours as an extension work hours regardless of the actual extension work hours, an employer is not allowed to dispute work hours on the ground that the actual overtime work hours do not reach the actual overtime work hours agreed (see Supreme Court Decision 2006Da81523, Nov. 29, 2007).

According to the reasoning of the lower judgment and the record, the Defendant is aware of the fact that: (a) it is difficult for the Defendant to accurately calculate working hours in light of the nature of the work of bus operation under the instant wage agreement; (b) it agreed 12 hours in total, 8 hours in basic work and 4 hours in overtime work regardless of actual working hours (1 hours in night work, 8 hours in overtime work; and (c) and paid the corresponding overtime work and night work allowances. Examining these facts in light of the aforementioned legal principles, the Defendant cannot assert that the Defendant calculated allowances according to the actual working hours and night work hours on the ground that the actual working hours of the Plaintiffs fall short of the hours agreed upon. The Defendant’s allegation in the grounds of appeal on this part is unacceptable.

(3) When calculating an hourly ordinary wage as a monthly wage, the amount shall be calculated by dividing that monthly ordinary wage by the standard number of hours for calculation of the monthly ordinary wage (which means the number of hours calculated by multiplying the standard number of hours for calculation of weekly ordinary wage by 12). Thus, in order to calculate that hourly ordinary wage, the ordinary wage as a monthly wage must be first determined. However, in cases where an employee received a monthly wage as a wage for the agreed working hours in excess of the standard working hours under Article 50 of the Labor Standards Act, or received a monthly fixed allowance along with the basic hourly wage, the fixed allowance paid in the form of the monthly wage or the monthly ordinary wage shall not be considered as ordinary wage, and it is difficult to determine the ordinary wage because it includes the wage for the paid holiday under Article 55 of the Labor Standards Act and the overtime and night work under Article 56 of the same Act, and in such cases, it is difficult to determine the ordinary wage by calculating the hourly ordinary wage as a paid holiday and the hourly ordinary wage as a total number of hours calculated by adding that to the agreed wage and night work hours.

According to the reasoning of the judgment below and the records, the collective agreement of this case provides that "working hours are 8 hours per day and 8 hours under a separate labor-management agreement." The monthly working hours are 22 days before June 30, 2006 and 21 days thereafter. The wage agreement also provides that monthly working hours are 12 hours including basic working hours and 8 hours and 4 hours, and one hour of overtime work is deemed to have night work, and one hour of overtime work is deemed to have worked overtime work, and 4 hours a month and 16 hours a month are deemed to have worked overtime work." Thus, it can be known that the collective agreement of this case provides that monthly working hours are subject to wage calculation in excess of the standard working hours stipulated in the Labor Standards Act. Thus, in order to calculate the monthly average working hours and night work hours as remuneration for overtime work and night work hours, the monthly average overtime working hours and overtime work hours should be included in the ordinary wage calculation standard.

On the contrary, the court below calculated hourly ordinary wages by dividing the number of working hours calculated by adding only the weekly working hours to the standard working hours under the Labor Standards Act, without considering overtime working hours and night work hours included in the working hours subject to wage calculation stipulated in the wage agreement of this case, and then dividing the hourly ordinary wages by the number of working hours per month. The court below erred by misapprehending the legal principles as to the interpretation of a collective agreement or the calculation of ordinary wages. The defendant'

B. Regarding ground of appeal No. 3

If a certain wage constitutes ordinary wage in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wage, if a certain wage constitutes ordinary wage, it shall belong to a fixed wage paid periodically or uniformly. Thus, it does not constitute ordinary wage if a certain wage is not paid periodically or uniformly, or if a certain wage comes to vary depending on actual work performance, it does not constitute ordinary wage. Here, the term “a uniform payment” includes not only the payment to all workers, but also the payment to all workers who reach a certain condition or standard. The term “specified condition” in this context refers to not only the payment to all workers, but also the payment to all workers who have reached a certain condition or standard. In light of the concept of ordinary wage to calculate “regular and average wage” (see, e.g., Supreme Court Decisions 2006Da13070, Jun. 15, 2007; 2004Da41479, Jan. 28, 2010).

After compiling the adopted evidence, the court below acknowledged facts as stated in its holding, and determined that the additional charges for continuous service for one year, adding a certain amount to the employees who have continuously worked for more than one year, was paid every month in addition to a certain amount, regardless of work performance, and was a fixed wage regularly and uniformly paid, and thus included in ordinary wages.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to ordinary wages as otherwise alleged in the ground of appeal

2. Regarding the plaintiffs' grounds of appeal

A. Regarding ground of appeal No. 1

Inasmuch as ordinary wages refer to fixed wages determined to be paid periodically and uniformly to workers as workers subject to contractual labor or total labor, the wage does not constitute ordinary wages as a fixed wage, and thus, it does not fall under ordinary wages. However, even if the wage for workers exceeds one month, if it is paid periodically and uniformly (see, e.g., Supreme Court Decisions 94Da19501, Feb. 9, 1996; 2002Da74282, Jun. 13, 2003).

According to the reasoning of the judgment below, the court below found the following facts in light of the adopted evidence: "350% when bonuses work for not less than six months on the basis of the basic salary of full-time workers, 50% when bonuses work for not less than three years, 650% when they work for not less than three years, 650% when they work for not less than eight years, and 12 years or more," and "the payment of bonuses shall be made quarterly and shall be made by the end of each quarter, and the retirement worker shall be paid monthly calculation; and the defendant determined that the payment of bonuses is not included in ordinary wages on the basis of this case's collective agreement.

However, the above judgment of the court below is hard to accept for the following reasons.

In light of the legal principles on ordinary wages as seen earlier, first of all, the bonus in this case is to be paid quarterly by applying each rate set in advance to the worker who has been employed for more than six months according to the increase in the number of years of service, and it is not enough to conclude that such circumstance alone is not ordinary wages. Furthermore, even if Article 27 of the collective agreement of this case provides that “the payment of bonuses shall be made on a monthly basis until the end of each quarter,” it cannot be deemed that the worker is excluded from the person who has retired during the period of payment of bonuses, and the meaning of the above provision on the payment of bonuses cannot be paid bonuses for the period after retirement, even if the worker retires during the period of payment of bonuses, but would be paid bonuses in proportion to the period of service. Rather, it cannot be deemed that the payment of bonuses in this case is determined based on the actual work performance, etc. of the worker, and thus, it can be deemed that the payment of bonuses in this case constitutes ordinary wages regularly and uniformly, which constitutes a fixed amount of bonuses under Article 27 of the collective agreement.

B. Regarding ground of appeal No. 2

(1) Of the grounds of appeal by the plaintiffs, there is no evidence to prove that the court below, among industrial cooperatives and trade unions, has agreed to pay monthly leave allowances and weekly leave allowances under the wage agreement of this case, and thus rejected the plaintiffs' primary arguments on the criteria for calculating monthly leave allowances and weekly leave allowances, the allegation that it is unlawful to reject the plaintiffs' primary arguments regarding the criteria for calculating monthly leave allowances and weekly leave allowances is erroneous, and therefore, it cannot be viewed as legitimate grounds of appeal, since it is erroneous

(2) Article 55 of the Labor Standards Act provides that “an employer shall grant an employee at least one paid holiday per week average.” Meanwhile, Article 57(1) of the former Labor Standards Act (amended by Act No. 6974 of September 15, 2003; hereinafter “former Labor Standards Act”) provides that “an employer shall grant an employee one day’s paid leave for January” (Article 1 subparag. 3 of the Addenda of the Labor Standards Act, which was amended by Act No. 6974 of September 15, 203, deleted, and Article 1 subparag. 3 of the Addenda of the Labor Standards Act provides that the enforcement date of the said Act shall be 100 to 300 full-time workers, such as the Defendant, and the monthly paid leave allowance or monthly paid leave allowance based on the former Labor Standards Act shall also be deemed as allowance under the Labor Standards Act, and it is reasonable to determine that the employee is not paid one day’s paid for 200 days or monthly paid for 20 days.

Nevertheless, the judgment of the court below that there is no obligation to calculate weekly paid leave allowance or monthly paid leave allowance under the former Labor Standards Act based on ordinary wages is erroneous in the misapprehension of legal principles as to the allowances subject to ordinary wages. The plaintiffs' ground of appeal pointing this out is justified.

C. Regarding ground of appeal No. 3

A confession during a trial is a statement of facts unfavorable to himself/herself, consistent with the allegations by the other party on the date for pleading or at the date for preparatory pleading, and once a confession during a trial has been established, the court is bound to this unless it has been legally revoked. As such, the court may not admit by evidence the facts contrary to the facts that there is no dispute between the parties. Furthermore, the party who revokes a confession shall prove, in addition to the fact that the confession is contrary to the truth, that the confession was caused by mistake, and shall not be presumed to have been made by mistake on the ground that the confession was proven to be contrary to the truth (see Supreme Court Decision 2009Da8428, 84295, Feb. 11, 2010, etc.).

With respect to the plaintiffs' claims seeking the payment of unpaid weekly holiday allowances in an amount of four days each year, since the defendant paid only weekly holiday allowances equivalent to 4 times a month and 1 year and 48 days even though there was an average of 52 days of weekly holiday, the court below rejected the claims on the grounds that there is no evidence to find that the plaintiffs had opened the prescribed weekly holiday days as much as they could obtain paid holiday allowances in excess of 48 days each year.

However, the above judgment of the court below cannot be accepted in light of the records and the legal principles as seen earlier.

According to the records, the plaintiffs stated an application for amendment of the purport of the claim on March 5, 2009, stating the number of weekly holidays on which the date for preparatory pleading of the first instance trial is the basis for weekly holiday allowances and the paid weekly holiday allowances, etc., and the defendant stated that the ground for calculating the difference, such as the unpaid weekly holiday allowances, alleged by the plaintiffs in the application for amendment of the above purport of claim, is recognized if the ordinary wages are acknowledged as asserted by the plaintiff at the second date for preparatory pleading of the first instance trial. Thus, the facts that the number of weekly holidays, which are the basis for weekly holiday allowances to be paid to the plaintiffs, are as stated in the application for amendment of the above purport of claim are identical to each other.

Nevertheless, against the Defendant’s confession, the lower court rejected this part of the Plaintiffs’ assertion by determining that there is no evidence to acknowledge the number of weekly holidays exceeding 48 days a year as the basis for the Defendant’s additional payment of weekly holiday allowances. In so doing, the lower court erred by misapprehending the legal doctrine on confession, thereby adversely affecting the conclusion

3. Conclusion

Therefore, 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 on the bench.

Justices Kim Nung-hwan (Presiding Justice)