Plaintiff 1 and 15 others (Attorney Dong Dong-hwan, Counsel for the plaintiff-appellant)

Dong Transportation Co., Ltd. (Law Firm New Daily, Attorney Lee Han-hun, Counsel for the defendant-appellant)

April 29, 2014

Daejeon District Court Decision 2013Da22215 Decided November 1, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum on each of the amounts stated in the attached Table 1’s “the total amount of unpaid wages” and each of the amounts thereof from May 1, 2013 to the date of full payment.

2. Purport of appeal

A. The remaining plaintiffs except Plaintiff 14 shall be revoked the first instance judgment. The defendant shall pay to the remaining plaintiffs except Plaintiff 14 the amount calculated by applying the rate of 20% per annum from May 1, 2013 to the day of complete payment with respect to each of the amounts stated in the attached Table 2’s “the aggregate of unpaid wages” as well as each of the amounts.

B. Plaintiff 14: The judgment of the first instance court that ruled against Plaintiff 14 shall be revoked. The Defendant shall pay to Plaintiff 14 the amount calculated by the ratio of 20% per annum from May 1, 2013 to the date of full payment.

1. Basic facts

A. The defendant is a corporation that runs transportation business, and the plaintiffs are employees belonging to the defendant.

B. On June 30, 201, the Daejeon Metropolitan City Regional Bus Trade Union concluded a wage agreement between Daejeon Metropolitan City Bus Transport Business Association and the Daejeon Metropolitan City Bus Transport Business Association, which represented the Defendant, with the application period from February 1, 201 to January 31, 2012. On September 6, 2012, the said wage agreement was renewed and the application period was extended until January 31, 2013 (hereinafter “instant wage agreement”). The main contents of the instant wage agreement are as follows.

Article 1 (Retirement System)

2.It shall be calculated on the basis of the level of actual work performed by each worker, but the hours of work shall be uniformly determined on the basis of the special circumstances of the transport service as follows:

(i) 2 intersections per day;

(a) Basic working hours: 8 hours a day;

(b) Extension working hours: 1 hours a day;

Provided, That the number of hours per day shall be nine hours per overtime work after the full attendance.

(ii) a full-time working system;

Article 2 (Types of Work and Working Hours)

1. The form of work shall, in principle, be a two-way system per day and full-time work shall be conducted concurrently, but only those who wish to obtain an agreement of the worker in the workplace shall be conducted full-time work;

2. The basic working hours shall be forty hours a week;

3. Holidays may be changed depending on the special conditions of urban buses for the public interest;

4. The number of monthly working days shall be 22 full-time days (20 days in February);

An employer shall, when a worker requests two (22 days or more but 2 days) overtime work, assign him/her to work for at least 24 days (22 days in case of February).

If an employer does not provide a worker with two-day overtime work due to a cause attributable to the employer, the company shall pay 24-day wages in the wage agreement including the overtime work day.

6. A payment shall be made in accordance with the wage calculation table when the service exceeds 22 days a month.

Article 6 (Extended, Night and Holiday Work Allowance)

1. For allowances, 50/100 shall be additionally paid by applying ordinary wages under Article 5 of the wage agreement, and where workers at midnight continue to work full-time to work until P.M., the number of working days shall be calculated as two days, and where the number of working days per month exceeds 22 days, it shall be paid in accordance with the wage calculation

Article 7 (Wel Leave Allowances)

The weekly holiday allowances shall be in accordance with Article 54 of the Labor Standards Act and Article 5 of the Agreement (ordinary wages), but paid holidays shall be paid in accordance with the following standards, to persons with perfect attendance of contractual working days per week:

The ordinary wage for one day, the 10-day ordinary wage for the worker, the 10-day ordinary wage for the worker, the 15-day ordinary wage for the worker, the 20-day ordinary wage for the worker who works for the 20-day ordinary wage, and the 4-day ordinary wage for the worker who works for the 5-day regular holiday allowance for the worker who works for the 5-day regular holiday allowance shall be paid to the worker who works for the 5-day regular holiday allowance, but it shall not exceed the 52-day weekly

Article 9 (Compensatory Holiday Allowances)

A company shall be a paid holiday for a worker on the Workers' Day ( May 1), Saturday, New Year's Day, and New Year's Day.

C. In accordance with the wage calculation schedule, the Defendant paid the Plaintiffs a holiday allowance separately from the weekly holiday allowance under Article 7 of the instant wage agreement. In the month other than two months, the Defendant paid the Plaintiffs a holiday allowance by adding 50% of the daily salary exceeding 26 days to those who have worked for at least 27 days in the month except two months, and the daily salary exceeding 24 days to those who have worked for at least 25 days in February.

D. The Plaintiffs and the Defendant set one day per week as a weekly holiday, and the Plaintiffs did not work on the said weekly holiday.

[Reasons for Recognition] Facts without a partial dispute, entry in Gap evidence 1, 2, and 3 (including each number in the case of additional number), the purport of the whole pleadings

2. The plaintiffs' assertion

A. The basic working hours are 40 hours per week, 22 days per month (20 days in February). The basic working hours per month are 176 hours per month (=8 hours x 22 hours, and 160 hours in February = 160 hours = 8 hours x 20 days) constitute overtime and holiday work.

B. However, the Defendant’s wage calculation table did not properly reflect the Defendant’s holiday work allowance to be paid under the Labor Standards Act, and concluded a wage agreement between labor and management in the state that the said wage calculation table was not prepared at the time of renewal of the wage agreement on September 6, 2012. As such, the said wage calculation table cannot be included in the contents of the wage agreement, it is invalid for the Plaintiffs.

C. The Defendant shall pay holiday allowances to the Plaintiffs in accordance with the instant wage agreement or the mandatory provisions of the Labor Standards Act. Nevertheless, the Defendant did not pay holiday allowances to the Plaintiffs for the number of working days exceeding 22 days each month from February 1, 2012 to January 31, 2013 (20 days each month). The Defendant is obligated to pay to the Plaintiffs each money indicated in the “paid wage” column of attached Table 2, which is the amount corresponding to holiday allowances, and any delay compensation therefor.

3. Judgment on the plaintiffs' claim for holiday work allowance

A. First, we examine whether the Defendant’s wage calculation table becomes effective as part of the wage agreement between the Plaintiffs and the Defendant.

In light of the purport of the evidence No. 1 and the purport of the argument No. 1, the fact that the wage calculation table is attached to the wage agreement written at the time the wage agreement is renewed on September 6, 2012 between the Daejeon Metropolitan City Local Bus Trade Union and the Defendant, and the parties to the said wage calculation table may be acknowledged. According to the above facts, it is reasonable to deem that the above wage calculation table was partially constituted by an agreement between the parties. As such, the above wage calculation table was not prepared at the time of the renewal of the wage agreement, and thus the above wage calculation table is not effective against the Plaintiffs, the above assertion by the Plaintiffs is without merit.

B. Next, we examine whether the work days after the full attendance falls under holidays for which holiday allowances shall be paid.

Article 55 of the Labor Standards Act provides that an employer shall grant an employee at least one paid holiday per week on average, and Article 56 of the same Act provides that an employer shall pay more than 50/100 of ordinary wages for holiday work. However, Article 56 of the Labor Standards Act stipulates that a holiday for which a holiday allowance is to be paid refers to a weekly holiday as prescribed in Article 55 of the Labor Standards Act, a legal holiday as prescribed in a collective agreement or employment rules (see, e.g., Supreme Court Decision 90Da14089, May 14, 1991), and that all working days after delivery fall under a holiday for which a holiday allowance is to be paid.

However, the facts that the plaintiffs and the defendant set the 1st day per week as weekly holidays and did not work on the weekly holidays are as seen earlier, and even according to the plaintiffs' assertion, the plaintiffs seek payment of holiday work allowances for the working days except for the above weekly holidays. In light of the aforementioned legal principles, as long as the plaintiffs did not work on the day specified by the collective agreement or rules of employment, it cannot be said that the defendant has the duty to pay holiday work allowances to the plaintiffs for the work days except for weekly holidays on the ground that they worked after the full attendance.

C. Furthermore, we examine whether the Defendant’s wage calculation table, which pays holiday allowances, violates Article 56 of the Labor Standards Act and is invalid for working days for not less than 27 days in the month except for two months, not less than 25 days in February, and not less than 26 days in February, respectively.

Unless there are special circumstances between labor and management, the remaining one day (for example, from a day to a day off a week, and on a day designated as a day off a week) on which a worker does not work for a week other than a day off a week under the weekly 40-hour work system constitutes unpaid work hours, barring special circumstances between labor and management. This is the day when a worker does not work naturally under the reduction of work hours, and if a worker has worked on this day, the overtime work allowance shall be paid for 40 hours a week on other day, regardless of the fact that a worker has to work for 40 hours a week, no holiday work allowance shall be paid.

In light of the above legal principles, as long as the plaintiffs did not work on a weekly holiday, 4 days in the case of the day excluding two months, 4 days in the case of the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day 27 days, and 25 days in the case of February excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding the day excluding

D. Therefore, the plaintiffs' claim for holiday work allowance cannot be accepted.

4. Determination on Plaintiff 14’s claim for overtime allowance

This court's explanation concerning the plaintiff 14's claim for overtime allowance is identical to the pertinent part of the judgment of the court of first instance, and thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act. Therefore, the plaintiff 14's claim for overtime allowance is justified.

5. Conclusion

Therefore, the judgment of the first instance court is just in conclusion, and the plaintiffs' appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Jeong-ok (Presiding Judge) Kim private-public promotion exchange