[1] The concept and scope of ordinary wages under Article 6 (1) of the Enforcement Decree of the former Labor Standards Act

[2] The validity of an agreement between the labor and management that, when calculating bonus without any standard under the Labor Standards Act, the concept and scope of ordinary wages are different from that under the Labor Standards Act as a means of calculating bonus and excludes various allowances to be included in ordinary wages from ordinary wages for calculating bonus (=effective)

[1] Article 6 of the former Enforcement Decree of the Labor Standards Act (wholly amended by Presidential Decree No. 20142, Jun. 29, 2007) / [2] Article 6 of the former Enforcement Decree of the Labor Standards Act (wholly amended by Presidential Decree No. 20142, Jun. 29, 2007)

[1] Supreme Court Decision 90Meu14758 Decided June 28, 1991 (Gong1991, 2015), Supreme Court Decision 97Da28421 Decided April 24, 1998 (Gong1998Sang, 1438), Supreme Court Decision 2000Da29370 Decided July 23, 2002 (Gong2002Ha, 2017) / [2] Supreme Court Decision 2006Da81523 Decided November 29, 2007

Plaintiff 1 and two others (Attorney Kim Dong-ho, Counsel for the plaintiff-appellant)

Korea Coal Corporation (Attorney Jeong Sung-sung et al., Counsel for defendant-appellee)

Suwon District Court Decision 2009Na7862 decided August 25, 2011

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 6(1) of the former Enforcement Decree of the Labor Standards Act (wholly amended by Presidential Decree No. 20142, Jun. 29, 2007) provides that “ordinary wage refers to hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract wage determined to be paid to an employee regularly or uniformly for a fixed amount of work or a total amount of work.” If an ordinary wage is paid to an employee regularly or uniformly for a prescribed amount of work or a total amount of work, the amount of the wage, in principle, falls under ordinary wage. However, in light of the legislative intent of the Labor Standards Act and the function and necessity of the ordinary wage, a certain wage falls under ordinary wage, if the wage falls under ordinary wage, it shall fall under a fixed wage which is regularly or uniformly paid (see Supreme Court Decision 97Da28421, Apr. 24, 198; Supreme Court Decision 200Da284278, Jun. 27, 2008; 200Da3757, Jun. 27, 2007).

In light of the above legal principles and records, the court below is justified in holding that the promotion price of this case against Plaintiffs 1 and 3, who are employees of Defendant Corporation, does not belong to the fixed wage paid periodically and uniformly, since all of the special area service allowances, fuel support expenses, heavy food support expenses, and the special service allowances against Plaintiff 2, who are employees of Defendant Corporation, do not belong to the regular and uniform payment, and therefore, it does not constitute an ordinary wage. In so doing, contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence, exceeding the bounds of the principle of logic and experience, by misapprehending the legal principles on ordinary wage, or by omitting necessary judgment, thereby affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

The lower court determined that the Defendant’s obligation to pay the difference between the Plaintiff 1 and 3’s ordinary wages under the Enforcement Decree of the Labor Standards Act and the daily ordinary wages under the Labor Standards Act and the Enforcement Decree thereof (including, after January 1, 2007, special duty allowance, special area work allowance, technical allowance, production management allowance, and special area work allowance for Plaintiff 1 and 3 belonging to ordinary wages in light of the nature of each of the instant allowances) calculated the Plaintiffs’ hourly ordinary wages as stated in its reasoning. As a result, the lower court determined that the Defendant calculated the difference between the Plaintiff 1 and 3’s hourly ordinary wages as calculated by the Defendant’s wage management guidelines and the daily ordinary wages as calculated under the Labor Standards Act and its Enforcement Decree exceeds the amount of the hourly ordinary wages calculated under the Labor Standards Act, since the amount of the hourly ordinary wages for Plaintiff 1 and 3’s daily ordinary wages does not fall short of the difference between the Plaintiff 1 and 3’s daily ordinary wages, the Defendant calculated the difference between the Plaintiff 1 and 3’s daily ordinary wages as calculated under the above provision of the Labor Standards Act.

In addition, the court below rejected the plaintiffs' assertion that the provision of Article 5 of the Labor Standards Act for the calculation of the hourly ordinary wage should not be invalidated because it is favorable for the plaintiffs, and that the provision of the Labor Standards Act for the calculation of the hourly ordinary wage should be applied as it is. If the scope of the hourly ordinary wage is based on the agreement between the labor and management with respect to the contractual work hours that are the basis for the calculation of the hourly ordinary wage, it would allow the individual comparison of the various elements included in one working condition, which would be contrary to the legal interpretation of the Labor Standards Act, and it would not be allowed to select only those favorable to the workers under different provisions, and it would not be reasonable to separately determine whether each element of the calculation of the hourly ordinary wage violates the Labor Standards Act, but to compare the hourly ordinary wage amount calculated in accordance with the Labor Standards Act with

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of logic and experience and the principle of free evaluation of evidence, or by misapprehending the legal principles on the validity of a contract, which stipulates working conditions

3. As to the third ground for appeal

In calculating bonuses without any criteria under the Labor Standards Act, the concept or scope of ordinary wages under the Labor Standards Act and other ordinary wages are to be calculated in accordance with an agreement between the labor and management, and as a means of calculating such bonuses, the above agreement is valid even if it was agreed to exclude various allowances to be included in ordinary wages under the Labor Standards Act from the above ordinary wages for calculating bonuses (see Supreme Court Decision 2006Da81523, Nov. 29, 2007).

The judgment of the court below to the same purport is just, and there is no error of law as alleged in the grounds of appeal.

4. Conclusion

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 Park Poe-dae (Presiding Justice)