B

Attorney Jung-do et al., Counsel for defendant

Attorney Jeong Young-jin, Justice Song Jin-jin

E A.

Attorney Kim Yong-sik, Justice Hong-ho, Counsel for the defendant-appellant

1. Judgment on the Defendant’s grounds of appeal regarding the scope of ordinary wages

Based on its stated reasoning, the lower court determined that the Defendant’s continuous service allowances, food allowances, and bonuses paid to the Plaintiff constituted ordinary wages as a regular, uniform, and fixed wage.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the scope of ordinary wages, or by exceeding the bounds of the principle of free evaluation of evidence.

2. Determination of the Plaintiff’s grounds of incidental appeal concerning the determination of property at a basic time

The lower court rejected the Plaintiff’s assertion on the ground that, with regard to the Plaintiff’s assertion that the daily amount paid between one week is divided into the total number of hours of extension, night work hours, and weekly paid work hours without considering the standard work hours and additional rates, and that the basic pay should be determined by dividing the total number of hours of overtime, night work hours, and weekly paid work hours, and that the calculation of statutory allowances, such as overtime allowances, should be based on the fixed basic pay, it is difficult to deem the basic pay per week as in the collective agreement and wage agreement

Examining in light of the relevant legal principles, the lower court did not err by misapprehending the legal doctrine regarding hourly ordinary wages, contrary to what is alleged in the grounds of appeal.

3. Determination on the Plaintiff’s grounds of incidental appeal as to total working hours for calculation of hourly ordinary wages, and the Defendant’s grounds of appeal

A. In a case where a fixed allowance paid in the form of a monthly or daily rate as a wage for agreed working hours in excess of the standard working hours prescribed under the Labor Standards Act is converted into an hourly ordinary wage, the calculation of the number of agreed working hours that are included in the total working hours that serve as the basis for the calculation of hourly ordinary wage should, barring any special provision, be added up the number of hours actually agreed to provide labor by an employee, and the number of extended working hours and night work hours that take into account the premium rate for the calculation of premium allowances is not to be added up. In addition, in a case where a collective agreement provides a premium rate for weekly working hours in consideration of the premium rate for the calculation of premium allowances, this is merely the purport to pay the premium rate for weekly working hours by adding a certain rate to the basic weekly working hours when paying weekly working allowances (see, e.g., Supreme Court en banc Decision 2015Da73067, Jan. 22, 202).

B. The reasoning of the lower judgment reveals the following facts.

1) The collective agreement in 2009, the wage agreement in 2009, and the wage agreement in 2010 (hereinafter referred to as the “each of the instant wage agreements”) concluded between the Hague branch under the Chungcheongnam-nam branch to which the Plaintiff belongs and the Defendant determined as follows regarding working hours and wages.

A) Members’ working hours per day shall be eight hours per week, but may engage in overtime work of 30 hours per week, and the extended working hours include night work hours of 3 hours per week.

B) Daily working hours, which serves as the basis for wage calculation, are five hours of extended working hours (30 minutes of total working hours) for eight hours of basic working hours.

C) The structure and calculation basis of “wages”, part of each wage agreement of the instant case, is set at the following additional rates regarding weekly holiday allowances.

- Week leave allowances: 12 hours (8 hours + 4 hours) per week;

- Week allowances: 8 hours X 150/100 = 12 hours

2) The Defendant deemed the basic hourly wage calculated under each of the instant wage agreements as the hourly ordinary wage, and determined the “daily wage, including the basic wage, overtime allowance, night work allowance, and weekly holiday allowance, calculated on the basis of the basic hourly wage,” and paid the amount calculated by multiplying the number of days the Plaintiff worked by the daily wage as the basic monthly wage.

3) The Plaintiff worked for each working day in excess of the standard working hours stipulated in the Labor Standards Act, and received various fixed allowances in the form of a monthly or daily pay in addition to the monthly basic pay in return for the agreed working hours.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the number of total working hours for calculating the hourly normal wage of each of the fixed allowances ought to include extended working hours, night work hours, and weekly paid leave hours without considering the additional rate.

Unlike this, the lower court erred by misapprehending the legal doctrine regarding the calculation of hourly ordinary wages, thereby adversely affecting the conclusion of the judgment, in order to calculate the hourly ordinary wages of a fixed allowance paid in the form of a daily rate or a monthly rate, including overtime hours and night work hours in consideration of each additional rate. The Plaintiff’s ground of supplementary appeal assigning this error is with merit.

Meanwhile, the lower court’s determination that did not consider the premium rate for weekly paid holiday allowances in the number of total working hours for the calculation of the hourly ordinary wage of a fixed allowance paid in the form of a monthly salary, was partially erroneous in its reasoning, but is ultimately justifiable, and did not err by misapprehending the legal doctrine on the calculation of hourly ordinary wage.

4. Judgment on the Defendant’s ground of appeal on the agreement on the inclusive wage system

Based on its stated reasoning, the lower court determined that it is difficult to deem that there was an agreement on the inclusive wage system solely on the grounds that there was a prior agreement on working hours in excess of the prescribed working hours under each of the instant wage agreements.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err by misapprehending the legal doctrine regarding the establishment of a comprehensive wage system, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

5. Scope of reversal

The part of the lower judgment against the Plaintiff is reversed on the ground that there is a ground for reversal as seen earlier. The Defendant’s appeal against the part against the Defendant regarding the entire part of the lower judgment against the Defendant, and the Plaintiff’s claim seeking additional statutory allowances, etc. calculated by including bonuses in ordinary wages is in violation of the good faith principle. However, the Defendant’s assertion of the good faith principle needs to be deliberated and determined together with the Plaintiff’s claim that is reversed on the

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 on the bench.

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan