2015Da233586 (Counterclaim) Undue profit

Attorney Park Jong-chul, Counsel for the plaintiff-appellant

Law Firm Sung et al., Counsel for the defendant-appellant

(Counterclaim) Judgment

1. When an employer concludes a labor contract, he/she shall determine the basic wages for the worker;

Based on the principle of adding up various allowances (see Supreme Court Decision 196Da24699, Mar. 24, 1998). However, if an employer and an employee enter into a wage payment contract or collective agreement under the so-called comprehensive wage system with the content that the amount included in statutory allowances shall be determined as monthly wage or daily wage without setting the basic wage in advance, or the basic wage shall be determined in advance, and if the employer and an employee enter into an agreement to pay the specified amount as statutory allowances regardless of the number of working hours without distinguishing legal allowances, it shall be valid if it does not disadvantage workers, such as including working conditions that do not meet the standard prescribed by the Labor Standards Act, and it is deemed justifiable in light of various circumstances.

Whether an agreement on the comprehensive wage system has been established ought to be specifically determined by comprehensively taking into account various circumstances, including 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 in the same kind, etc. In an individual case, even if the extension, night, and holiday work is naturally anticipated in terms of the form of employment or nature of work, it does not constitute the comprehensive wage system, if the collective agreement, rules of employment, wage regulations, etc. stipulate that allowances for overtime, night, holiday, holiday work, etc. shall be paid separately from the basic pay by dividing them into detailed items. Furthermore, 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

2. A. We examine the reasoning of the lower judgment and the circumstances indicated in the record in light of such legal doctrine. (1) The wage agreement concluded between the labor union to which the Plaintiffs belong and the Defendant from 2009 to 2012 stipulates that overtime work allowances, night work allowances, etc. should be paid separately from the base pay. In addition, each of the above wage agreement stipulates that wages shall be paid in accordance with the wage table. The wage table represents the total amount of the above detailed items depending on the number of working days. Furthermore, the Defendant paid the Plaintiffs the wages as the monthly wage table, and the monthly wage statement also indicates the amount divided into the detailed items, and the amount of the detailed items in the wage statement corresponds to the wage amount by the detailed items in the wage table. Accordingly, the Defendant can be deemed to have actually paid the Plaintiffs’ wages in accordance with the detailed items in the wage agreement, the wage table, and the wage statement.

2) According to the wage agreement from 2009 to 2012, under the premise that drivers belonging to the defendant were working on five occasions a day-time basis in the form of daily work, the number of overtime work hours and night work hours are set in advance and the number of overtime work hours and night work hours. Furthermore, each of the above wage agreements separately determines the basic pay, taking into account the premium rate under the Labor Standards Act, based on the number of overtime work hours and night work hours as above, calculated overtime work allowances and night work allowances according to the number of overtime hours and night work hours as above, and included them in the monthly wage. Considering such circumstances, the wage system from 2009 to 2012 under the wage agreement merely includes the agreement on the standard monthly work hours and the total amount of monthly work hours to be paid in excess of the standard monthly work hours under the wage agreement, and also does not include the aforementioned comprehensive wage agreement on the standard monthly work hours under the wage agreement.

3) Each of the above wage agreements states "the above monthly wage includes all the legal allowances from to full attendance (the wage agreement in 2009, the wage agreement in 2010)" and "the wage is calculated on the basis of 19 hours a day according to the comprehensive wage system" (the wage agreement in 2011), and "the wage system is a comprehensive wage system including all the allowances that may arise from the operation of a day, and the wage table is merely divided into wage items for the convenience of the payment of wages (the wage agreement in 2012)" (the wage agreement in 2012). However, the above part is inconsistent with the defendant's wage practice, but the defendant has separately paid "the holiday allowance in 2010,000 won" to workers who provide labor on the agreed holiday, regardless of the fact that the wage is paid on the basis of 200,000 won per annum 10,000,0000 won per annum 20,000 won per annum 20,000.

B) The wage agreement in 2011 and 2012 has a separate provision that various allowances, such as bonuses, cut allowances, etc. that are not shown in the wage table, shall be paid in accordance with the relevant monthly payment standards.

C) The wage agreement in the year 2011 and the year 2012 does not provide for the monthly wage for which basic pay and allowances shall be paid collectively. In addition, the wage agreement in the year 2010 stipulates that the monthly inclusive wage is KRW 1,965,470. However, the wage agreement in the year 2010 does not stipulate that the monthly wage is KRW 1,965,470 on the monthly wage based on the number of days and the wage statement is written in accordance with the wage table. Therefore, it is difficult to deem that the comprehensive wage specified in the wage agreement in the year 2010 is the actual amount paid.

B. Nevertheless, the lower court determined that an inclusive wage agreement was explicitly established on the sole basis of the circumstances indicated in its reasoning, and rejected the Plaintiffs’ claim seeking the payment of additional statutory allowances following the determination of ordinary wages. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of an inclusive wage agreement, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Kwon Soon-il

Justices Lee Ki-taik

Justices Kim Jong-soo