Whether or not bonuses are included in the average wage on the basis of the calculation of retirement allowances;

In light of all circumstances, such as the employee wage system of Defendant Corporation, the regularness of bonus paid by Defendant Corporation, and the confirmation of the amount, etc., bonuses paid by Defendant Corporation is not merely a mutually advantageous payment pursuant to the employer’s subparagraphs, but is interpreted to have the nature of wage paid as compensation for work for workers. Therefore, the bonus should be included in the concept of wage, which is the basis of calculating the average wage under Articles 19 and 28 of the Labor Standards Act, along with the basic wage and allowance.

Articles 19 and 28 of the Labor Standards Act

Supreme Court Decision 73Da105 Delivered on December 24, 1974 (Supreme Court Decision 10862Da10862, Supreme Court Decision 223Da185 Decided December 24, 197, Decision 28(12), Decision 505No. 8239 Decided December 24, 197)

Plaintiff 1 and 7 others

Korea Coal Corporation

Seoul Central District Court (75 Gohap1460) in the first instance trial

1. The part against the remaining plaintiffs except the plaintiff 2 who ordered payment of money exceeding the upper limit of cited amount in the original judgment is revoked and all of the plaintiffs' claims corresponding to this part are dismissed.

2. The defendant shall pay 203,822 won to the plaintiff 1 from February 20, 1973, 202,742 won to the plaintiff 3 from February 10, 1973, 164,350 won to the plaintiff 4 from August 18, 1973, 217,472 won to the plaintiff 5 from February 23, 1974, 102,48 won to the plaintiff 6 from March 24, 1974, 383,03,036 won to the plaintiff 7 from June 19, 1973, 1205 won to the plaintiff 8,54, and the rate from May 16, 197, respectively.

3. All remaining appeals against the plaintiffs except the plaintiffs, such as the defendant's appeal against the plaintiff 2 are dismissed.

4. Of the costs of lawsuit, the costs of lawsuit between the plaintiffs and the defendant except the part arising from the defendant's appeal against the plaintiff 2 and the remaining costs of lawsuit between the plaintiffs and the defendant are all borne by the defendant.

The defendant shall pay to the plaintiff 1 an amount of 203,836 won and the rate of 5 percent per annum from February 20, 1973 to the date of full payment; the amount of 202,747 won to the plaintiff 3; the amount of 5 percent per annum from February 10, 1973 to the date of full payment; the amount of 164,360 won to the plaintiff 4; the amount of 5 percent per annum from August 18, 1973 to the date of full payment; the amount of 217,479 won to the plaintiff 5; the amount of 5 percent per annum from February 23, 1974 to the date of full payment; the amount of 102,492 won to the plaintiff 6; the amount of 9.37 percent per annum from the annual provisional execution to the date of full payment; the amount of 9.37 percent per annum to the plaintiff 415 percent per annum; and the amount of 9.374.7 percent per annum to the plaintiff 57.4.7.

The judgment of the court below is revoked. All plaintiffs' claims are dismissed.

The judgment that the total costs of lawsuit shall be borne by the plaintiffs.

1. The plaintiffs' continuous service period of less than 1 to 3 years for less than 1 to 3 years, the number of their continuous service days for less than 1 to 3 years, the number of their continuous service days for less than 1 to 5 years, the number of their continuous service days for less than 1 to 3 years, the number of their continuous service days for less than 1 to 3 years, the number of their continuous service days for less than 1 to 5 years, the number of their continuous service days for less than 1 to 3 years, the total amount of their retirement allowances for less than 1 to 4 years, the number of their continuous service days for less than 1 to 3 years, the number of their continuous service days for less than 1 to 4 years, the number of their continuous service days for less than 1 to 3 years, the number of their total retirement allowances for less than 5 years and the amount of their retirement allowances for less than 2 years to be calculated as 1 to 3 years, each of the above categories of retirement allowances for less than 1 to 4 years.

2. The plaintiffs' calculation method of retirement allowances, such as the fact that there is no dispute over the above facts, are erroneous in that it excludes bonuses in calculating average wages, and the amount of retirement allowances to be actually received by the plaintiffs shall be calculated by multiplying the average wages calculated by including bonuses received by the plaintiffs for the three months prior to their retirement by the number of payment days calculated according to the above criteria according to the plaintiffs' continuous service period. Thus, the plaintiffs asserts that the defendant is obliged to additionally pay to the plaintiffs each amount of money stated in the claim, such as the amount of taxes

3. Therefore, we examine whether bonuses should be included in calculating the average wage which is the basis for calculating the above retirement pay.

Article 3 of the Employee Wage Rules of the defendant Corporation provides that "The wage system of the defendant corporation shall be three minutes of basic pay, allowances and bonuses, and the bonus may be calculated four times a year based on business performance, and one hundred percent or less of ordinary wages," and Article 24 of the Rules provides that "the bonus shall be paid with the approval of the Minister of Trade, Industry and Energy: Provided, That Article 17 of the collective agreement that applies to the members of the labor union belonging to the defendant corporation, which provides that "the Corporation shall pay the bonus within four times a year based on business performance, and one hundred percent or less of ordinary wages" shall be provided that "the average wage shall be paid within 100 cent a year based on the average wage" and "the average wage shall be paid within 100 cent a year based on the average wage" shall be provided that the above collective agreement provides that "the wage shall be paid within 160 cent a year based on the average wage or 100 cent a year based on the business performance, and the wage shall not apply to the defendant corporation's average wage shall be paid to each member."

As acknowledged above, in light of the overall circumstances such as the regular nature of the employee wage system of the defendant corporation or the bonus paid by the defendant corporation, the bonus paid by the defendant corporation is not merely a mutually advantageous payment under the subparagraphs of the employer, but it is interpreted that the nature of the wage paid in consideration of the worker's work. Thus, the bonus is included in the concept of the wage, which is the basis for calculating the average wage under Articles 19 and 28 of the Labor Standards Act, along with the basic salary and re-paid allowance. Meanwhile, the average wage under Article 6 of the Rules on Retirement Allowance of the defendant corporation should be deemed to refer to the average wage under Article 28 of the Labor Standards Act, in light of the wage regulations of the defendant corporation or the relationship with the Labor Standards Act, as seen above, in calculating the average wage at the time of retirement, the bonus paid by the defendant corporation shall be included in the wage.

However, according to the evidence evidence No. 8 and evidence No. 1 (established Rules for Calculation of Average Wage) without dispute over the establishment, the defendant Corporation established and implemented the Rules for Calculation of Average Wage for the calculation of retirement pay, etc. from March 7, 198. The above Rules for Calculation of Average Wage, etc. provide that "total amount of wages" received for three months retroactively from the initial date of calculation of retirement pay, etc., which was received for three months later, by unilaterally amending the Rules for the same period, shall be "total amount of basic wages and allowances" which the defendant received during the same period, and it can be recognized that the above Rules for Calculation of Average Wage is excluded from bonuses from the above basic wages. However, it is nothing more than that which provides detailed matters necessary to enforce the Rules for the provision on wages or retirement pay corresponding to the Rules for the Rules for Employment, which is the above Rules for Employment, and therefore, it cannot be viewed as null and void as being inconsistent with the concept of the Rules for Employment under Article 95 of the Labor Standards Act, which does not constitute an amendment to the Rules for Employment.

The defendant's wage rules, retirement allowance rules, etc. were established by the agreement between the labor and management, and there was no objection that the average wage which is the basis of the calculation of retirement allowances does not include bonuses at the time of the enactment of the above rules, and the amendment of the rules as of April 1, 1973 is nothing more than embodying and clarifying the original contents of the rules on retirement allowances, and the payment of retirement allowances excluding bonuses has already been established in a customary manner, which is a fact, since it has been implemented without objection so far. However, although subparagraph 2-1 and subparagraph 2-2 of the above provision are not sufficient evidence to support this, some of the above evidence No. 3 (certified copy of the examination of witness) were stated in the above evidence, and there is no other evidence to support this, even if the defendant's intent in the examination at the time of the establishment of the above rules were so argued, it cannot be viewed that the defendant's claim for the payment of bonuses or the objective interpretation of the rules on retirement allowances received by the time of the retirement allowance payment without reasonable basis of the above.

4. Ultimately, the amount of retirement benefits to be paid to the plaintiffs shall be the amount calculated by multiplying the average wage at the time of retirement including bonuses by the number of days of payment as calculated under the above criteria as set forth in the above provision of the retirement allowance provision of the defendant corporation. It is clear in the calculation that the average bonus per day received from the plaintiffs for three months before retirement by the number of days of the three months before retirement in the column 8 shall be the amount of 9. Thus, each average wage of the plaintiffs calculated including bonuses shall be 10. The amount of retirement benefits of the plaintiffs shall be 11. The amount calculated by multiplying the number of payment days written in the column 12 by the number of payment days written in the column 9. The defendant's claim shall be dismissed for the remaining portion of the plaintiff's appeal after deducting the amount of taxes written in the column 13 from the above determination of provisional execution from the above 9. The defendant's claim shall be dismissed for the remaining portion of the plaintiff's remaining amount after deducting the amount of the plaintiff's remaining amount of 6.

Judges Lee Chang-chul (Presiding Judge)