[1] The concept and scope of ordinary wages

[2] The case holding that bonuses, monthly allowances, and weekly allowances are not included in ordinary wages

[1] Article 18 of the Labor Standards Act, Article 6 of the Enforcement Decree of the Labor Standards Act / [2] Article 18 of the Labor Standards Act, Article 6 of the Enforcement Decree

[1] Supreme Court Decision 97Da28421 delivered on April 24, 1998 (Gong1998Sang, 1438) Supreme Court Decision 2003Da10650 Delivered on April 22, 2003 (Gong2003Sang, 1197)

Plaintiff 1 and 22 others (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Ha & Yang, Attorneys Yang Ho-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na4627 decided Nov. 10, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. Without being asserted in the lower court, any assertion that is newly made in the final appeal cannot be a legitimate ground of appeal against the lower judgment (see, e.g., Supreme Court Decisions 92Da24325, Sept. 25, 1992; 2001Da63575, Jan. 25, 2002).

In light of the records, the argument in the grounds of appeal that the rules of employment (No. 10 evidence No. 10) enforced from February 1, 1999 with the conclusion of a collective agreement in 2002 lost its effect, or that the labor contract (No. 13-1 and No. 2) is not in violation of the above collective agreement and the wage agreement in 2001 to 203 is a new argument that is asserted only in the final appeal. Thus, this part is not a legitimate ground of appeal.

2. Where money and valuables are paid to an employee as the object of the prescribed labor or the total amount of labor, and they are paid periodically and uniformly, in principle, wages constituting ordinary wages. However, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wages, if a certain amount of wages falls under ordinary wages, it shall belong to a fixed wage which is paid periodically and uniformly (see Supreme Court Decision 97Da28421, Apr. 24, 1998). Thus, if a certain amount of wages falls under ordinary wages, it shall not be paid periodically and uniformly, or if it is not fixed wage, such as whether it is paid periodically or uniformly, and the amount of payment varies depending on actual work performance, it does not constitute ordinary wages (see Supreme Court Decision 2003Da10650, Apr. 22, 2003).

According to the facts acknowledged by the court below, the bonus in this case is a non-fixed wage with the actual work performance, such as whether the worker has worked until the payment date of the bonus and whether the payment has met the one-year continuous work period, and it does not constitute ordinary wages. Therefore, the court below is just in holding that the bonus in calculating the plaintiffs' ordinary wages does not constitute ordinary wages, and there is no violation of the rules of evidence or misunderstanding of legal principles.

In addition, the court below is just in finding facts as stated in its reasoning after compiling the evidence of the employment, and judged that the payment of the monthly allowance and the weekly paid leave allowance determined depending on whether or not the worker is to work on the monthly paid leave day, is not included in the ordinary wage, and there is no error in the misapprehension of legal principles as to the ordinary wage, as alleged in the grounds of appeal.

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 Ahn Dai-hee (Presiding Justice)