2013Da37524 Wages

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J. 10

11, K

12. L.

13. M;

14.N

15.O

16. P;

Q. Q.

18. R

19. S;

20. Telecommunication

21. U;

22. V

W 23, W

Coup Passenger Transport Corporation

Seoul High Court Decision 2012Na85832 Decided April 26, 2013

March 26, 2015

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 (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The ordinary wages prescribed under the Labor Standards Act as the basis 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 are money and other valuables agreed to be paid as remuneration for contractual work ordinarily provided for the prescribed working hours, which are regularly, uniformly, and fixed. The wages paid at intervals exceeding one month may be included in ordinary wages if they are paid periodically, uniformly, and fixedly.

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

In addition, the term "fixed wage" refers to the minimum wage that a worker who has worked on a voluntary day regardless of the name of the wage, even if he/she retires on the day following the day, he/she is entitled to the fixed and conclusive payment for the daily work. Thus, if a worker provides contractual work on a voluntary day, regardless of the fulfillment of additional conditions, it can be deemed that the payment or the amount determined in advance is fixed.

Here, the condition stated in this context refers to a condition that is not yet determined at the time of providing work at night or holiday. As such, if a worker is added to the factual basis of the king, which has already been determined at the above time, such as having a specific career or having a certain continuous service period, it does not interfere with the recognition of fixedness. However, regardless of whether or not the worker has provided a contractual work, the wage, which is to be paid only to the worker at a specific time, is a qualification requirement that the worker is in office at the specific time. Such wage is not paid to the person who has provided his/her work at king, but is not paid to the person who is not at a specific time, at that specific time, without asking the contents of the offer of his/her work at king. If it is generally paid under such condition, it is difficult to view that the wage has the nature of remuneration for so-called "fixed work", and even if the worker has provided his/her work on a certain day, it shall be deemed that the worker has been paid at least 29 days prior to that time, 29.

2. A. First, the lower court’s determination is justifiable in light of the legal doctrine as seen earlier, that all of the wages regularly, uniformly, and fixed in consideration of the instant work on board, CCTV allowances, and continuous service allowances constitutes ordinary wages under the Labor Standards Act, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on ordinary wages.

B. However, the lower court determined that the lower court’s bonus constitutes ordinary wages. However, according to the records, it appears that the Defendant’s payment of the fixed amount to its employees as the bonus of the instant subcontractor was not made to the retired workers before the payment date. Thus, there is room to view that the instant bonus of this case was made explicitly or impliedly agreed to meet the qualification requirements for wage payment under the condition that the employee would be on the payment date between the labor and management, or that such a practice was established. If the wage is paid under such condition, the instant bonus of this case constitutes ordinary wages, which is the consideration for contractual work, in light of the legal principles as seen earlier.

It should not be considered that it does not exist.

Therefore, the court below should have deliberated on the details of the Defendant’s failure to pay the instant monthly leave allowance to the retired worker before the payment date and whether the labor union or workers raised an objection thereto, and examine whether the person who provided labor on the payment date was made an explicit or implied labor-management agreement that does not pay a person who does not hold his/her service on the payment date, or whether such a practice has been established.

Nevertheless, without examining the aforementioned circumstances, the lower court determined that the lower court’s lower court also fell under ordinary wages as well as the instant work on board allowance, CCTV allowances, and continuous service allowances. In so determining, the lower court erred by misapprehending the legal doctrine on ordinary wages, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. 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.

Justices Park Young-young

Justices Min Il-young

Justices Kim Jae-han

Chief Justice Kim Jong-il