2. The costs of lawsuit shall be borne by the Plaintiff.

A. The Defendant is a company engaged in the aircraft manufacturing business, etc., and the Plaintiff is a person who was employed and worked for the Defendant on December 1, 200 after receiving a diagnosis of unstable disorder caused by occupational stress on December 1, 200, and was under long-term care from the 13th to July 31, 2012 of the same month.

B. During the long-term care period, the Plaintiff received 70% of average wages directly from the Korea Labor Welfare Corporation and 30% of ordinary wages as stipulated in the collective agreement from the Defendant, respectively.

C. Relevant provisions

1) Labor Standards Act

Article 2 (Definitions) (1) The definitions of terms used in this Court shall be as follows:

6. The term "average wage" means the amount calculated by dividing the total amount of wages paid to a relevant worker during three months immediately before the day on which a cause for calculating his/her average wage occurred by the total number of calendar days during that three months. This shall apply mutatis mutandis to the employment of less than three months;

Article 60 (Annual Paid Leave) (1) Every employer shall grant any worker who has worked not less than 80 percent of one year a paid leave of 15 days.

(6) In applying the provisions of paragraphs (1) through (3), any of the following periods shall be deemed the period of attendance at work:

1. A period during which a worker suffers from an occupational injury or disease;

Article 79 (Compensation for Suspension of Work) (1) An employer shall pay a worker who is under medical treatment pursuant to Article 78 a compensation for suspension of work equivalent to sixty percent of his/her average wages during the period of medical treatment.

2) Enforcement Decree of the Labor Standards Act

Article 6 (Ordinary Wage) (1) The Act and this Decree “ordinary wage” means hourly wage, daily wage, weekly wage, monthly wage, or contract amount to be paid to a worker for a prescribed or total work on a regular and uniform basis.

3) Industrial Accident Compensation Insurance Act

Article 52 (Temporary Disability Compensation Benefits) The temporary disability compensation benefits shall be paid to any worker who suffers from an injury or disease for a period during which he/she is unable to work as a medical care for his/her occupational reason, and the daily amount paid shall be an amount equivalent to 70/100 of his/her average wage: Provided, That if the period for which he

Article 80 (Relation to Other Compensation or Indemnity) (1) If a beneficiary has received or is entitled to receive insurance benefits under this Act, an insured person shall be exempted from liability for accident compensation under the Labor Standards Act for the same reason.

4) Rules of employment that was enforced after June 1, 2006 by the defendant

Article 31 (Grounds for Temporary Retirement) Where a member falls under any of the following subparagraphs, the member may order the temporary retirement for a fixed period:

1. When he/she is unable to continue to serve due to an official injury or disease;

Article 85 (Annual Paid Leave) (1) Where any member goes to work at least 80 percent of a year, 22 days of paid leave shall be granted.

(2) Members who have worked continuously for not less than two years shall be granted paid leave after adding one day to one year for each year of continuous working years in excess of the first one year during the leave under the provisions of paragraph (1).

(6) The period during which a member suspends from an occupational injury or disease and the period of suspension from a leave before and after childbirth under this Rule shall be deemed to have worked in the application of the provisions of paragraph (1).

Article 108 (Benefits for Temporary Retirement)

(2) Wages during the period of temporary retirement shall be unpaid and shall not be promoted: Provided, That in cases of temporary retirement for an injury or disease, wages shall be as prescribed separately, and in cases of temporary retirement for an injury or disease, compensation under the Industrial Accident Compensation Insurance Act shall be paid on the grounds referred to in subparagraph 1 of

Article 117 (Definition of Ordinary Wages) The term "ordinary wages" means the amount determined to be paid periodically, uniformly to members for contractual work hours or total labor: Provided, That the standard items of allowances included in ordinary wages shall be separately determined.

Article 119 (Annual Leave Allowances) An allowance shall be paid for the number of days of unused leave during annual paid leave: Provided, That the method of calculating the annual allowance shall be separately determined.

5) The Defendant’s collective agreement from June 16, 2008 to June 18, 2013

Article 22 (Standards and Definition of Wages)

3. Monthly wages, regular bonuses, supplementary allowances, and retirement allowances shall be in accordance with a separate agreement, and a labor-management agreement shall be implemented at the time of revision or abolition;

4. Ordinary wages shall be basic wages, production allowances, position allowances, environment, statutory/general qualifications, aviation, and licensing allowances (this provision was amended from December 30, 2009 to be "ordinary wages shall be the basic wages, self-development expenses, production allowances, job allowances, job allowances, environment, legal/general qualifications, aviation licenses, and bonded goods caretaker allowances."

Article 26 (Reward, etc.) Company shall pay bonuses as follows:

1. Regular bonuses;

(a) Criteria for payment: The basic bonus amount (basic pay + self-development cost + production allowance + duty allowance); and

(ii) Payment rate: 700 percent;

(c) Persons eligible for payment: All members.

Provided, That the bonus of a person who has less than one year of continuous service shall be governed by a separate agreement.

2. On June 26, 201, the Company shall pay travel expenses of KRW 500,000 for the staying home and the next holiday (this provision was amended as follows: “The Company shall pay KRW 1 million for the travel expenses for the staying home and the next holiday expenses for the Company from June 26, 201.”

Article 34 (Annual Paid Leave)

1. Members who have worked at least 80 percent of one year shall be granted paid leave for 22 days;

5. For members who have worked continuously for not less than 2 years, one day’s paid leave shall be granted for each year of the continuous employment years in excess of the first year’s paid leave under paragraph (1); and

§ 80 (Compensation for Occupational Accidents) If a member of the company has been determined by an occupational accident, the company shall pay the following compensation:

1. A company shall pay medical care or temporary layoff benefits to any member who is receiving medical care or suspending business due to an occupational injury or disease in accordance with the standards prescribed by the relevant Acts: Provided, That the temporary layoff benefits are amended as follows: (a) the average wage of 70% prior to the suspension of business and the ordinary wage of 30% prior to the suspension of business (if he/she does not attend the office on the preceding day of a year and the preceding day of a month, he/she shall be paid annual allowances); and (b) the temporary layoff benefits paid to him/her by the relevant institution shall be reverted to the company [in cases of temporary layoff benefits, 70% of the average wage prior to the suspension of business shall be directly received by the relevant institution and 30% of the ordinary wage (if he/she

6) The Defendant’s other wage-related regulations (the wage management agreement was enacted and implemented from September 1, 2007, and the wage management regulations were enacted and implemented from May 1, 2012; hereinafter “this case’s wage regulations” in combination with rules of employment and collective agreements).

Article 3 (Definitions of Terms)

(3) Ordinary wages: Only basic wages, position allowances, production allowances, environmental allowances, statutory/general qualification allowances, air, and license allowances as fixed wages to be paid in the period of wage calculation for the prescribed working hours under the Labor Standards Act and the Enforcement Decree of the same Act (including self-development expenses and bonded goods caretaker allowances, which are added according to the wage management regulations from May 1, 2012).

Article 5 (Regular Bonuses) The Company shall pay a regular bonus of 700% per annum in order to inspire the desire to work and improve productivity.

(2) Bonuses shall be calculated as bonus based 】 payment rate -, and the basic amount of bonus shall be limited to basic pay, position allowances, production allowances, and self-development expenses.

(4) A regular bonus in common service shall be paid monthly on the payment date of monthly salary.

Article 6 (Additional Payments)

(1) Persons eligible shall be

Additional payment shall be made to the employees who hold office as of the payment date, and no additional payment shall be made to the employees other than on-duty leave, temporary retirement from office, temporary retirement from office, temporary retirement from office, childcare leave, and ex post facto leave before and after childbirth (excluding the unpaid leave after childbirth according to the wage management regulations from May 1, 2012): Provided, That the probationary worker shall not be paid only on piece rates

(2) Payment standards

140% (10% from May 1, 2012 to 100%) in the second half of each 70% (10% from May 1, 2012) in the second half of each 70% (100%) for the year of non-high-rate rate (P.I) payment included in the main sentence: Provided, That this shall be limited to the year of 500,000 won (50,000 won for the first half of each 90% of each 90% prior to the commencement of labor-management on a daily basis of a middle-run company.

Article 7 (Change of Annual Leave Allowance and Benefit Management Regulations into Article 8)

(1) Operation of annual paid leave:

2. Where he has worked at least 80 percent per year, a paid leave of 22 days shall be granted: Provided, That in cases falling short of 80 percent, basic leave and leave for continuous service shall not occur;

5. Where a person has worked continuously for not less than two years, the person shall grant the leave under paragraph (2) plus one day for each year of continuous employment years in excess of the first year; and

8. Where the annual paid leave is not made on the preceding day due to business suspension, official leave, etc., no annual paid leave for the relevant period shall occur;

(2) Payment of annual allowances.

1. If the annual paid leave, which occurred in the preceding year, is not used, it shall be settled as the initial allowance in the following year;

3. Annual allowances shall be calculated as bonus, basic amount ± 183HR 】 8HR 】 150% 】 remaining number of days;

Article 16 (Suspension and Temporary Retirement of Workers and Payment Management Regulations) Where a company suspends its business due to a cause attributable to the company, the relevant laws shall apply, and in cases of the industrial accident compensation benefits, the average wage of 70% and the ordinary wage of 30% shall be paid to the company and the temporary layoff benefits paid to the company

2. The plaintiff's assertion

A. The Plaintiff received monthly salary equivalent to 70% of average wages and 30% of ordinary wages from the Defendant during the period of medical care due to occupational disease in accordance with the standard prescribed in the wage regulations of this case. The Defendant asserted that, in addition to the basic salary, the Defendant has the obligation to pay the workers a total of 104,284,390 won of temporary layoff benefits calculated on the basis of ordinary wages including the above bonus, etc. and compensation for delay in payment thereof, in a fixed and uniform manner. The Defendant had calculated ordinary wages and paid temporary layoff benefits based on the amount including the above bonus, etc. under the Labor Standards Act, but did not include them in ordinary wages. Thus, the Defendant has the obligation to pay the Plaintiff a total of 104,284,390 won and delay in payment thereof, which have not been completed from September 2009 to July 2012.

B. The Plaintiff asserts that, during the period of medical care due to occupational disease, annual leave allowances have occurred in accordance with the standard prescribed in the wage regulations of this case, and that the Defendant did not pay this. Thus, the Defendant is obligated to pay the Plaintiff the unpaid annual leave allowances of 39,962,360 won from the year 2008 to the year 2010, the extinctive prescription of which has not been completed, and the damages for delay.

3. Determination

A. Whether the Defendant should pay compensation for suspension of work under the wage provision of this case on the basis of ordinary wages under the Enforcement Decree of the Labor Standards Act

1) Ordinary wages are guaranteed as the minimum amount of average wages that can be increased or decreased according to actual working hours or performance pursuant to Article 19(2) of the former Labor Standards Act (amended by Act No. 2007, 4, 11; hereinafter the same purport of Article 2(2) of the current Labor Standards Act). Additional allowances for overtime hours, night and holiday work as prescribed in Article 55 of the same Act, and advance notice of dismissal as prescribed in Article 32 of the same Act are based on calculation of overtime hours, night and holiday work, etc., and each of the above provisions does not have a separate minimum standard other than premium rates or payment days, so if the agreement to exclude various allowances that should be included in ordinary wages from ordinary wages is recognized as having the effect of an agreement to exclude them from overtime hours, night and holiday work, each of the above provisions provides that workers shall be paid premium for a certain period of time, and thus, it shall be excluded from the ordinary wages under Article 2(2) of the Labor Standards Act. However, if it does not have any possibility of calculating the above statutory allowance under the Labor Standards Act as 20.

2) With respect to the instant case, the wage provision of the instant case limits ordinary wages to basic pay, self-development cost, production allowance, job allowance, environmental allowance, statutory/general qualification allowance, aviation license allowance, and bonded goods caretaker allowance. The fact that the Defendant paid 30% of ordinary wages calculated based on the wage provision of the instant case, not the ordinary wages defined in the Enforcement Decree of the Labor Standards Act, as part of compensation for suspension of work, is as seen earlier.

① However, the Labor Standards Act provides that “an employer shall pay a worker who is under medical care due to an occupational injury or disease a compensation for suspension of work equivalent to 60/100 of average wages during the medical care (Articles 78 and 79).” The Industrial Accident Compensation Insurance Act provides that temporary disability compensation benefits shall be paid to the worker who suffers from an occupational injury or disease for the period of non-employment due to medical care, and the daily amount of payment shall be the amount equivalent to 70/100 of average wages. If the beneficiary received or is eligible to receive insurance benefits under this Act, the policyholder shall be exempted from liability for accident compensation under the Labor Standards Act for the same reason (Articles 52 and 80). ② The wage provision of this case limits the worker’s payment of 30% of ordinary wages as defined in the Labor Standards Act or the Industrial Accident Compensation Insurance Act, and in fact, the Defendant’s payment of temporary disability compensation benefits beyond the scope of ordinary wages under the Labor Standards Act or the amount of the above ordinary wages under the Industrial Accident Compensation Insurance Act shall not be considered as one of the Plaintiff’s wage under the Labor Standards Act.

B. Whether the annual leave allowance is paid

The Labor Standards Act provides that "an employer shall grant a paid leave of 15 days to an employee who has worked not less than 80 percent of one year, and in this case, the period of suspension of work due to occupational injury or disease shall be deemed to have worked at work (Article 60)." The defendant's employment rules also provide that "where an employee has worked at least 80 percent of one year, the period of suspension of work due to occupational injury or disease shall be deemed to have worked at work, and the employee shall be deemed to have worked at work, and the period of suspension of work due to occupational injury or disease shall be deemed to have paid an allowance for the number of days of unused leave during the year (Articles 85 and 119), and the wage rules of this case provide that "if an employee fails to use the annual paid leave that occurred in the preceding year, the annual paid leave shall be paid at the beginning of the following year." However, if an employee stops for a long time due to occupational disease as seen earlier, it is doubtful that there is no annual paid leave for the days of unused leave.

However, the annual paid leave is significant to provide workers who have worked for a certain period of time with an opportunity for mental and physical recreation and to improve their cultural life (see Supreme Court Decision 2008Da41666, Oct. 9, 2008). In other words, the Defendant’s collective agreement states that “the Defendant shall pay 70% of the average wages before the temporary retirement of workers who have worked for medical treatment or due to occupational injury or disease and 30% of ordinary wages before and after the temporary retirement leave shall not be paid annual paid for the pertinent year” (Article 80), and that “the annual paid leave shall not be paid if the Plaintiff does not work for a certain period of time before and after the pertinent year of temporary retirement, it is difficult to recognize that the annual paid leave is in violation of the Labor Standards Act, even if the annual paid leave is not paid for the pertinent year after the date of temporary retirement, it is difficult to recognize that the annual paid leave is in violation of the Labor Standards Act, such as the wage management agreement and the annual paid leave after the date of temporary retirement.”

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Il-il (Presiding Judge)