[2] Whether the average wage, which serves as the basis for the calculation of a retirement allowance, is limited to the part that an employer can manage or control the total income earned by an employee (affirmative), and whether the excess taxi commission is included in the average wage that serves as the basis for the calculation of a retirement allowance in cases where an operator of a transportation company directly reverts the excess taxi commission to his/her individual income (negative)

[3] In a case where an operator of a transportation company pays a transportation company a portion exceeding the taxi commission out of the transportation income, and then receives it again from the transportation company, whether the excess taxi commission is included in the average wage, which serves as the basis for calculating the amount of retirement pay (affirmative)

[4] The validity of the above agreement in a case where the amount of retirement calculated by an agreement between the labor and management, which is not based on the calculation of retirement allowances, is less than the minimum amount guaranteed by the Labor Standards Act (negative)

[2] Even if wages are paid within the period for calculating the average wage, in calculating the amount of the average wage, the part of the average wage, which serves as the basis for calculating the amount of the retirement allowance, should be excluded from the scope of the part that can be managed or controlled by the employer in order to ensure predictability in the employee’s contribution to the amount of the retirement allowance. Therefore, in a case where the employee directly reverts the excess of the taxi commission to the employee himself/herself, the existence of the individual income or the scope of the amount thereof is not specified, and therefore, it is difficult for the transportation company to find out that the individual income portion of the employee is too much, and thus, there is no possibility or control over it.

[3] In a case where a worker pays a total transport earnings to a transportation company, unlike the case where the worker directly reverts the excess taxi commission to his/her own individual himself/herself, the transportation company can clearly confirm and specify whether the excess taxi commission occurred and the scope of the amount, and thereby manage and control over the excess taxi commission. It does not change from the fact that the transportation company later paid the worker the amount equivalent to the excess taxi commission paid to the worker. Thus, the excess of the taxi commission paid by the worker shall be deemed to be included in the average wage, which serves as the basis for the calculation of the amount of retirement allowances.

[4] The provisions of the Labor Standards Act on retirement pay provide the lowest limit of the amount of retirement to be paid by the employee to the retired employee. Thus, in a case where there exists a separate agreement between the employer and the employee not to calculate the amount of retirement allowance which can be included in the average wage as stipulated in the Labor Standards Act in light of the nature of the benefits, if the amount of retirement allowance calculated under the agreement exceeds the lowest limit guaranteed by the Labor Standards Act, such agreement shall not be deemed null and void as it violates Article 34 of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005). However, if the amount of retirement allowance calculated under the agreement is less than the lowest limit guaranteed by the Labor Standards Act, the agreement is null and void as it violates

1. In addition to the payment of a certain amount according to the number of days of actual work each month by a transportation company to its employees, if the employee free disposal of the balance after deducting a certain amount of taxi commission paid to the company, out of daily transportation earnings, taking into account the unique characteristics of the employee’s work form and the convenience of calculation, is deemed to constitute an individual employee’s income and thus, the excess amount of taxi commission constitutes an amount of wages, which is the basis for calculating retirement allowances, barring special circumstances. However, even if the amount of wages are paid within the period for calculating the average wage, such excess amount of taxi commission shall be deemed to be included in the average wage, which serves as the basis for calculating the amount of retirement allowances, barring special circumstances. However, in calculating the average wage that serves as the basis for calculating the amount of retirement allowances, if the employee directly reverts to his/her individual employee’s income, whether the excess amount of taxi commission occurred or the scope of the amount is not certain, and thus, it should be deemed that the employee’s excess amount of excess taxi commission should not be included in the total amount of retirement allowances.

On the other hand, since the provisions of the Labor Standards Act on retirement pay provide the lowest limit of the amount of retirement to be paid by the employee to the retired employee, in case where there exists a separate agreement between the employer and the employee not to pay the wages that may be included in the average wage as stipulated in the Labor Standards Act in light of the nature of the wages, if the agreement is reached, if the amount of retirement allowance calculated under the agreement reaches the lowest limit guaranteed by the Labor Standards Act, it shall not be deemed null and void as it violates Article 34 of the former Labor Standards Act (amended by Act No. 7379 of Jan. 27, 2005; hereinafter “former Labor Standards Act”). However, if the amount of retirement allowance calculated under the agreement falls short of the lowest limit guaranteed by the Labor Standards Act, such agreement shall be deemed null and void as it violates Article 34 of the former Labor Standards Act.

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance, and held that the defendant company and the labor union have originally adopted the monthly wage system, but the government abolished the taxi commission scheme in relation to taxi transportation business and implemented the total management system for taxi transportation income to pay the taxi company in full. The defendant company entered into a wage agreement with the labor union on June 21, 199. According to the above wage agreement, the worker must deposit the total amount of taxi rate meter weather income with the defendant company. The defendant company shall pay the total amount of the taxi commission (standard transportation income) exceeding the taxi commission rate on the basis of 7 hours and 20 minutes of working hours. The defendant company and the labor union agreed to pay the monthly wage separately. Although the defendant company did not include the average wage which is the basis for calculating the excess taxi commission, the amount calculated by applying the above wage agreement falls short of the minimum amount guaranteed by Article 34 (1) of the former Labor Standards Act, and the part of the above wage agreement which was null and void in light of the legal principles as seen above.

2. The court below, after compiling the evidence adopted in its judgment, found facts as stated in its reasoning, and rejected the defendant company's assertion that the defendant company agreed to provide overtime work hours exceeding the standard working hours with the plaintiffs as a kind of contract, on the ground that there is insufficient evidence to acknowledge it, and there is no error of law such as misconception of facts due to violation of the rules of evidence, as alleged in the grounds of appeal

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)