Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Yong-inter, Jink, Seodong-dong, Kim Yong-gu, Kang Jong-young, Yitami

1. Regarding ground of appeal No. 1

Examining the contents and structure of Article 50(1) and (2), Articles 53(1), 55, and 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018; hereinafter referred to as the “former Labor Standards Act”); Article 30 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 29010, Jun. 29, 2018); legislative intent and purpose revealed through the history and purpose of the enactment and amendment of the former Labor Standards Act; awareness of the parties in labor relations; and the Addenda of the amended Labor Standards Act (amended by Act No. 15513, Jun. 2018; hereinafter referred to as the “former Labor Standards Act”); thus, holiday work hours under the former Labor Standards Act are not included in “40 hours of weekly standard work and “12 hours of weekly overtime work”; thus, additional wages and overtime work hours cannot be paid in duplicate (see Supreme Court en banc Decision 2011Da13191, Jun. 21, 2019).

Nevertheless, the lower court determined otherwise on the grounds indicated in its reasoning that premium pay and overtime allowance should be paid for holiday work concurrently. In so doing, the lower court erred by misapprehending the meaning of “one week” as stipulated in Articles 50 and 53 of the former Labor Standards Act, and by misapprehending the legal doctrine on the payment of premium pay for holiday work and overtime work under Article 56 of the former Labor Standards Act. The allegation contained in the grounds of appeal on this point is with merit.

2. As to the ground of appeal No. 2, where an employer intends to pay money and valuables to an employee as wages, the said money and valuables should first be paid as the employee’s work. Thus, even if the money and valuables were continuously and regularly paid as the employee’s work, if it cannot be deemed that they were paid as the employee’s work. In determining whether certain money and valuables were paid as the employee’s work, the occurrence of the obligation to pay money and valuables should be deemed directly related to the provision of labor or closely related thereto (see, e.g., Supreme Court Decisions 94Da55934, May 12, 1995; 201Da23149, Jul. 14, 2011). From among various welfare items, the employer’s selective welfare program that receives welfare benefits by voluntarily choosing welfare benefits according to his/her own preference and needs, and the amount of money and valuables purchased at the employee-only online shopping site does not constitute ordinary wages, and it does not constitute wages under the collective agreement, 20182.

According to the reasoning of the lower judgment and the record, the Defendant, as part of the selective welfare program, paid the amount of welfare cards (hereinafter referred to as “welfare card fee”) set by the limit of 40,000 won per annum to 2009,000 won per annum to 2010,000 won, and 1.2 million won from 2011 to 2012) to all regular workers including the Plaintiff as part of the selective welfare program (hereinafter referred to as “the limit of use of welfare cards”), and the amount of welfare cards was limited to the use of health care, self-development, and cultural life for the sake of welfare, and the employee was voluntarily selected within the limited scope of items, and the amount of goods, etc. to be purchased according to the limited purpose of use is not carried over or refunded to the financial institution issuing the welfare card.

According to the above facts, the welfare card costs that the Defendant allocated to regular employees including the Plaintiff do not differ from the welfare points and their substance stated in the above legal principles. Thus, it does not constitute wages under the Labor Standards Act, but does not constitute ordinary wages.

Nevertheless, the lower court, based on the circumstances indicated in its reasoning, determined that the instant welfare card expense constituted ordinary wages. In so determining, the lower court erred by misapprehending the legal doctrine on the wage nature of the welfare card expense or the ordinary wage, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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.

Chief Justice Kim Jong-il

Justices Lee Dong-won

Justices Kim Gin-soo