[1] The meaning of ordinary wages and the standard for determining which wages belong to ordinary wages

[2] Whether welfare points continuously and regularly allocated to workers based on collective agreements, employment rules, etc. when implementing the selective welfare program constitutes wages and ordinary wages under the Labor Standards Act (negative)

[1] Articles 2(1)5 and 2(2), 26, 56, and 60 of the Labor Standards Act; Article 6(1) of the Enforcement Decree of the Labor Standards Act / [2] Articles 2(1)5 and 43(1) of the Labor Standards Act; Article 6 of the Enforcement Decree of the Labor Standards Act; Articles 1, 3(1), 81, and 82 of the Framework Act on Labor Welfare

[1] Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 (Gong2014Sang, 236) / [2] Supreme Court Decision 94Da55934 Decided May 12, 1995 (Gong195Sang, 2111), Supreme Court Decision 201Da23149 Decided July 14, 201 (Gong2011Ha, 1621Ha, 1621), Supreme Court en banc Decision 2016Da48785 Decided August 22, 2019 (Gong2019Ha, 1740)

See Attached List of Plaintiffs (Law Firm citizens, Attorneys Kim Nam-nam et al., Counsel for the plaintiff-appellant)

National Health Insurance Corporation (Law Firm, Attorneys Hy-jin et al., Counsel for defendant-appellant)

Seoul High Court Decision 2016Na2083847 decided April 19, 2017

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The standard for calculating additional wages for overtime, night, and holiday work, pre-announcement allowances for dismissal, annual leave allowances, etc., and the minimum amount of average wages is the money and valuables agreed to be paid as remuneration for contractual work ordinarily provided by an employee during contractual work hours, which are regularly, uniformly, and fixedly paid.

In this context, the term “fixed working hours” refers to money and valuables agreed to be paid by an employer and an employee with respect to the labor ordinarily provided for in contractual work hours. Wages paid in addition to wages paid by an employer by providing labor exceeding contractual work hours or by providing labor other than those prescribed in a labor contract or wages paid without relation to the labor of contractual work hours cannot be deemed as remuneration for contractual work, and thus does not constitute ordinary wages.

In order for a certain wage to belong to ordinary wages, it shall have the nature of uniform payment, and uniform payment includes not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards.

Furthermore, a certain wage must be paid fixed to ordinary wages. This refers to the “a fixed nature in which it is confirmed that it will be naturally paid for work provided by an employee regardless of his/her achievements, achievements, or other additional conditions,” and “fixed wage” refers to the minimum wage that a worker who has worked on a voluntary day and worked on the next day regardless of the name of the wage, is entitled to receive as a reward for such daily work even if he/she retires on the next day. Therefore, if an employee provided contractual work on a voluntary day, regardless of whether the additional conditions are met, it can be deemed that the payment was planned to be made naturally and the amount determined in advance is fixed (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

B. The lower court, based on the circumstances indicated in its reasoning, determined that bonuses under Article 23 of the Defendant’s Remuneration Regulations are regularly, uniformly, and uniformly paid to workers, and thus constitutes ordinary wages under the Labor Standards Act.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower court did not err by misapprehending the legal doctrine on ordinary wages under the Labor Standards Act.

2. Regarding ground of appeal No. 2

A. If an employer’s money and valuables paid to an employee constitute wages, the said money and valuables should first be paid as remuneration for work. Thus, even if the money and valuables were paid continuously and regularly, if such money and valuables were not considered to have been paid as remuneration for work, it cannot be deemed as wages. Here, in determining whether certain money and valuables were paid as remuneration for work, the occurrence of the obligation to pay money and valuables should be deemed to have been directly related to, or closely related to, the provision of labor (see, e.g., Supreme Court Decisions 94Da55934, May 12, 1995; 201Da23149, Jul. 14, 2011).

In a case where an employer implements a selective welfare program under which an employee receives welfare benefits by voluntarily choosing welfare benefits according to his/her own preference and needs among various welfare items, and where welfare points that can be used as a means of purchasing goods at an employee-only online shopping site are continuously and regularly allocated to employees based on collective agreements, employment rules, etc., such welfare points do not constitute wages under the Labor Standards Act, and as a result, do not constitute ordinary wages (see Supreme Court en banc Decision 2016Da48785, Aug. 22, 2019).

B. The lower court, on the grounds indicated in its reasoning, determined that the basic welfare points that the Defendant allocated to employees of class 3 or below each year in accordance with the guidelines for operating the customized welfare system constituted ordinary wages.

However, in light of the legal principles as seen earlier, welfare points do not constitute wages, and do not constitute ordinary wages.

Therefore, the court below erred by misapprehending the legal principles as to the wages or ordinary wages, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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.

[Attachment] List of Plaintiffs: Omitted

Justices Park Sang-ok (Presiding Justice)