[1] The standard for determining which wage belongs to ordinary wages and the meaning of "daily rate" as the conceptual requisition of ordinary wages

[2] Standard for determining whether money and other valuables paid by an employer as a qualification allowance to workers with certain qualifications constitutes ordinary wages

[3] In a case where Gap corporation operating a domestic and foreign air transportation business, etc. set a class of language qualification for international vessel crew on the basis of the acquisition score of the authorized language qualification examination for international vessel crew, and paid monthly allowances according to the class, and Eul et al., who worked as an international vessel crew member, sought an additional statutory allowances including the flick language allowances as ordinary wages, the case holding that the judgment below erred by misapprehending the legal principle in holding that the flick language allowances do not constitute ordinary wages

[4] In a case where a collective agreement, etc. provides that a certain holiday specified in the collective agreement, etc. shall be a working day and the ordinary working day shall be replaced by a holiday, or where a worker’s consent is obtained, whether an employer is exempted from the duty to pay holiday allowances if a prior notice is given by specifying a holiday to replace the worker (affirmative in principle

[5] In a case where Eul et al., an employee of Gap corporation running domestic and foreign air transportation business, etc., sought additional statutory allowances including bonuses in ordinary wages against the principle of trust and good faith, the case affirming the judgment below which held that Eul et al.'s claim cannot be permitted because it violated the principle of trust and good faith, on the ground that if Gap corporation pays additional statutory allowances in light of its management status, etc., it may cause serious managerial difficulties to erase unexpected financial burdens.

[1] Whether a certain wage falls under ordinary wages shall be determined based on the objective nature of the wage, which is the money and valuables paid to an employee as a consideration for a contractual work, and shall not be determined by the name of the wage, the period of payment, etc. In this context, remuneration for contractual work refers to the money and valuables agreed to be paid by an employer and an employee with respect to the work ordinarily prescribed in contractual work hours. The wage paid to an employee by providing labor exceeding contractual work hours or by providing labor other than those prescribed in a labor contract cannot be deemed as the remuneration for contractual work, and thus, does not fall under ordinary wages. Determination of the above remuneration for contractual work ought to be made based on how the employee and an employer evaluates the value of the employee’s work ordinarily prescribed in the contractual work hours, and how much money and valuables are paid.

In order for a certain wage to belong to ordinary wages, it must be uniformly paid. The payment of a certain wage as a uniform includes not only the payment to all workers, but also the payment to all workers who meet a certain condition or standard. The term “specified condition” in this context refers to a fixed condition in light of the concept of ordinary wage intended to compute a fixed and average wage. Meanwhile, in light of the fact that ordinary wage is the concept of assessing the value of the contractual work, the standard for determining whether the wage paid to all workers within a certain scope has a daily rate, “specified condition or standard,” which is the standard for determining whether the ordinary wage has a daily rate, must be a condition related to the assessment of the value of the contractual work, such as the contents, skills

[2] In a case where an employer pays money and valuables to a worker with a certain qualification as a qualification allowance, if the existence or content of such qualification may affect the quality or content of the contractual work provided to the employer, barring any special circumstance, it may be deemed as a certain condition related to the assessment of the value of the contractual work. Thus, the money and valuables paid as a qualification allowance may constitute ordinary wages.

[3] In a case where Gap corporation operating domestic and foreign air transportation business, etc. granted the class of language qualification to international vessel crew members on the basis of the acquisition score of the authorized language qualification examination and the oral test passing, and paid monthly allowances according to the grade, and Eul et al., who worked as an international vessel crew member of Gap company Eul et al. sought an additional statutory allowances including the ordinary wage, the case held that the judgment below erred by misapprehending the legal principles on the part of the judgment below, in a case where Eul et al. sought an additional statutory allowances including the ordinary wage, since the duties of foreign vessel crew Eul et al., such as the international vessel crew member Eul et al., can be deemed as a work ordinarily provided for the contractual work hours to Gap company, and the quality and contents of the contractual work hours such as the foreign vessel customer response offered to Eul et al. according to the wage agreement can vary, and it is difficult to readily conclude that the galian allowances regularly and continuously paid under the wage agreement were paid only at the same level of motive selection and encouragement regardless of the value of the contractual work.

[4] If a collective agreement provides that certain holidays specified in the collective agreement, etc. shall be replaced by working days and instead by working days, or if the employee’s consent is obtained even if not, barring any special circumstance, if the employee’s consent is specified in advance to replace workers, it shall be deemed a legitimate holiday substitution. The original holiday becomes an ordinary working day and the employee’s work is not a holiday work, and thus, the employer is not obliged to pay holiday allowances to the employee.

[5] In a case where Gap company Eul et al., an employee of Gap company running domestic and foreign air transportation business, etc., sought additional legal allowances including bonuses in ordinary wages against the principle of good faith, the case affirming the judgment below that Gap company's claim for additional legal allowances can not be made in light of the principle of good faith since Gap company's total net income is still bearing considerable obligations despite Gap company's voluntary agreement with creditors and restructuring procedures through joint management by creditors, Gap company's establishment, Gap company's cumulative net income amount has not been fluored, and recently its net income amount has not been much advanced in the amount of net income, Gap company's debt ratio has failed to achieve the goal stipulated in the voluntary agreement, and it is expected that the total debt ratio and debt ratio of Gap company's company's employees will increase continuously considering the operating leases used for the introduction of new aircraft, etc., and it is difficult to expect Gap company's profit improvement for a short time due to competition with low-cost navigation, Gap company's amendment of employment regulations to reduce bonus payment with the majority employees' consent, etc.

[1] Article 2(1)5 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [2] Article 2(1)5 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [3] Articles 2(1)5 and 56 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [4] Articles 55 and 56 of the Labor Standards Act / [5] Articles 2(1)5 and 56 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act, Article 2(1)

[1] Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 (Gong2014Sang, 236) / [4] Supreme Court Decision 99Da7367 Decided September 22, 200 (Gong200Ha, 2171)

See Attached List of Plaintiffs (Law Firm Korea Law Firm, Attorneys Kim Han-tae et al., Counsel for the plaintiff-appellant)

Asian Air Co., Ltd. (Attorneys Lee Jae-de et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na32153 decided August 28, 2015

Of the part of the lower judgment against Plaintiffs 1, 2, 3, and 4, the part on the remaining claims except for the part on the claim for holiday allowance is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by Plaintiffs 1, 2, 3, and 4 and all remaining appeals by the rest of the Plaintiffs are dismissed. The costs of appeal between Plaintiffs 1, 2, 3, and 4 are assessed against the rest of the Plaintiffs and the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. Whether a certain wage constitutes ordinary wages ought to be determined based on the objective nature of the wage, which is the money and valuables paid to an employee as a consideration for a contractual work, and not by the name of the wage or the end of the period of payment. The term “compensation for contractual work” refers to money and valuables agreed to be paid by an employer and an employee with respect to the work ordinarily prescribed in contractual work hours. The wage paid to an employee by providing labor exceeding contractual work hours or by providing labor other than those prescribed in a labor contract cannot be deemed as the remuneration for contractual work, and thus does not constitute ordinary wages. Determination of the remuneration for contractual work ought to be based on how the employee and an employer evaluates the value of the employee’s work ordinarily prescribed by the contractual work hours and determines to pay money and valuables for that time.

In order for a certain wage to belong to ordinary wages, it shall have the same nature as a uniform payment. The payment of a certain wage as a uniform payment includes not only the payment to all workers, but also the payment to all workers who meet a certain condition or standard. The term “specified condition” in this context refers to a fixed condition in light of the concept of ordinary wages intended to compute a fixed and average wage. Meanwhile, in light of the fact that ordinary wages are the concepts of ordinary wages that evaluate the value of the contractual work, the standard for determining whether the wage paid to all workers within a certain scope has a daily rate, “specified condition or standard,” which is the standard for determining whether the ordinary wage has a daily rate, must be a condition related to the assessment of the value of the contractual work, such as the contents, skills, and experience (Supreme Court en banc Decision 2012Da89399 Decided December 18, 20

Meanwhile, in a case where an employer pays money and valuables to a worker with a certain qualification as a qualification allowance, if the existence or content of such qualification may affect the quality or content of the contractual work provided to an employer, barring any special circumstance, it may be deemed that it is related to the assessment of the value of contractual work, barring any special circumstance. Therefore, the money and valuables paid as a qualification allowance, etc.

B. Examining the following circumstances revealed by the reasoning of the lower judgment and the record, in light of the foregoing legal doctrine, the instant glinology allowance constitutes ordinary wages.

1) The Defendant granted 30,000 won to the first-class holders, 200 won to the second-class holders, and 10,000 won to the third-class holders, on the basis of the acquisition score and oral test of English, Japanese, Chinese, Chinese, Chinese, and Chinese, and the passing score and the oral test.

2) Since Plaintiffs 1, 2, 3, and 4 worked as an international crew member of the Defendant, the said Plaintiffs’ duties, including foreign customer response units, shall be deemed to be ordinarily provided to the Defendant for contractual work hours.

3) According to the existence of the above plaintiffs' qualification rating for foreign language language and the level of the acquired class, the quality or content of contractual work, such as foreign customer response which the above plaintiffs provide to the defendant, may vary.

4) It is difficult to readily conclude that the instant glare allowance that is regularly and continuously paid pursuant to the wage agreement was paid solely at a motive grant and encouragement level regardless of the assessment of the contractual value.

C. Nevertheless, the lower court, on the grounds indicated in its reasoning, determined that the instant capital gains did not constitute ordinary wages, on the grounds as indicated in its reasoning, on the grounds that there is no evidence to acknowledge that the said class of language qualification was related to the assessment of the contractual value of the glare crew members. In so doing, the lower court erred by misapprehending the

2. Regarding ground of appeal No. 2

The lower court determined that the standard time for calculating ordinary wages was 26 hours a month on the grounds stated in its reasoning, including that the Defendant deemed four hours a Saturday as paid holiday through a collective agreement, etc. and appears to have calculated ordinary wages.

Examining the record in accordance with the relevant legal doctrine, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules regarding the standard hours for calculating ordinary wages, contrary to what is alleged in the

3. As to the third ground for appeal

In a case where a collective agreement provides that certain holidays specified in a collective agreement shall be replaced by working days and shall be replaced by a holiday, or where employees’ consent is obtained even if they are not so, barring any circumstances to be deemed different if a prior notice is given by specifying a holiday to be replaced by an employee, this would be a legitimate holiday substitution. The original holiday becomes an ordinary working day, and the employer is not obliged to pay holiday allowances to the employee (see Supreme Court Decision 9Da7367, Sept. 22, 2000).

The lower court determined that the Defendant did not have a duty to pay holiday allowances to the Plaintiffs on the grounds as stated in its reasoning, including the fact that the first holiday work took place in a legitimate manner with the consent of the workers, and that the Defendant had no duty

Examining the record in accordance with the relevant legal doctrine, the lower court did not err by misapprehending the legal doctrine on the substitution of holidays, contrary to what is alleged in the grounds of appeal.

4. As to the fourth ground for appeal

The court below determined as follows: (a) since 2010, the defendant has entered into an autonomous agreement with the creditor group and had gone through restructuring procedures through joint management by the creditor group, and still has a considerable amount of debt; (b) the defendant still has a cumulative net income after its establishment, and the amount of net income has been significantly advanced in the scale of net income; (c) the defendant's debt ratio is not more than 600-700% of the target amount set forth in the autonomous agreement; and (d) the defendant's loan ratio is not more than 400% of the target amount set forth in the new aircraft; (e) considering the operating risks used by the defendant for the introduction of new aircraft, it is expected that the increase in the total amount of debt and the debt ratio will increase; (d) the rate of interest reimbursement during the entire period from 2008 is more than 60%, and it is difficult to expect that the defendant's improvement would be made in a short time due to the defendant's interest due to the combination with low-cost construction works; and (e.

Examining the record in accordance with the relevant legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine on the good faith or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

5. Conclusion

Therefore, the remaining claims of Plaintiffs 1, 2, 3, and 4, excluding the part of the judgment below regarding the claim for holiday work allowance, are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the above plaintiffs and the remaining appeals by the plaintiffs are all dismissed. The costs of appeal between the remaining plaintiffs and the defendant are assessed against the remaining plaintiffs. It is so decided as per Disposition by the assent of all participating

[Attachment] List of Plaintiffs: Omitted

Justices Kwon Soon-il (Presiding Justice)