[퇴직금][공1998.3.1.(53),565]
The validity of an agreement under a collective agreement to exclude wage items that can be included in the average wage under Article 19 of the former Labor Standards Act from the "wages which form the basis for calculation of retirement allowances" (limited validity).
Article 28 of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) provides for the minimum limitation of retirement amount payable to the retired worker. Thus, in light of the nature of the benefits, there is a separate agreement between the labor and management to choose not to base the calculation of retirement allowance for the amount of wages that can be included in the average wage as stipulated in the Labor Standards Act, and if the agreement is reached between the retirement worker and the amount of retirement allowance calculated under the agreement exceeds the minimum limit guaranteed by the Labor Standards Act, the agreement shall not be deemed null and void as it
Articles 19 (see current Article 19 of the Labor Standards Act) and 28(1) (see current Article 34(1) of the Labor Standards Act) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997)
Supreme Court Decision 93Da31979 delivered on May 24, 1994 (Gong1994Ha, 1792) Supreme Court Decision 94Da28123 delivered on September 26, 1995 (Gong1995Ha, 3510) Supreme Court Decision 95Da49233 delivered on February 28, 1997 (Gong197Sang, 895)
Plaintiff 1 and nine others (Law Firm Han-ro, Attorneys Jeong Dong-ho et al., Counsel for the plaintiff-appellant)
Korea Telecommunication Corporation (Attorney Cho Young-il, Counsel for defendant-appellant)
Seoul High Court Decision 96Na39372 delivered on April 22, 1997
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The grounds of final appeal (the grounds of final appeal submitted after expiration of the period are to the extent of supplement) are examined.
1. As to the grounds of appeal Nos. 1 and 2
According to the reasoning of the judgment below, the court below determined that the average wage determined based on the calculation of retirement allowance in the first collective agreement or collective agreement in 1985 of the defendant corporation is different from the average wage under Article 19 of the former Labor Standards Act (amended by the repealed Act No. 5305 of March 13, 1997, Act No. 5305 of the same Act; hereinafter the same shall apply) by compiling the evidence adopted by the court below, and does not include the meal allowance, commuting allowance, physical training allowance, and monthly continuing allowance that the defendant corporation paid to workers. In comparison with the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation of collective agreement, etc., or in the misconception of facts or incomplete deliberation as discussed. There is no reason to
2. As to the third ground for appeal
Article 28 of the former Labor Standards Act provides the minimum limit of the amount of retirement allowance to be paid to the retired employee. As such, in light of the nature of the amount of retirement allowance, there was a separate agreement between the labor and management to choose not to be the basis for the calculation of the amount of retirement allowance which can be included in the average wage as stipulated in the Labor Standards Act. If the amount of retirement allowance calculated under the agreement exceeds the minimum limit guaranteed by the Labor Standards Act, such agreement shall not be deemed null and void because it violates Article 28 of the former Labor Standards Act (see, e.g., Supreme Court Decisions 94Da28123, Sept. 26, 1995; 95Da4923, Feb. 28, 1997). The court below’s decision to the same purport is just, and there is no error in the misapprehension of legal principles as to the average wage as
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 Final Young-young (Presiding Justice)