Plaintiff 1 and 34 others (Attorneys Kim Ho-woo et al., Counsel for the plaintiff-appellant)

Sung-nam City (Law Firm Mo, Attorney Park Jong-young, Counsel for the plaintiff-appellant)

June 19, 2009

1. The defendant shall pay to the plaintiffs 5% interest per annum from September 23, 2008 to February 19, 2009 and 20% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are recognized in accordance with the respective descriptions of Gap evidence 1 to 8 (including each number), and the purport of the whole pleadings, unless there is a dispute between the parties or by the whole purport of arguments.

A. The Plaintiffs (excluding Plaintiffs 29, 30, 31, 32, 33, 34, and 35) and non-party 2 and non-party 3, who were employed by and worked as street cleaners before their retirement (hereinafter the Plaintiffs, etc.), were members of the Korea Federation of Labor Unions of the Korea Federation of Trade Union (hereinafter the Union).

B. The working conditions of the Plaintiffs, etc. before their retirement were determined by the collective agreement and guidelines of the Ministry of Government Administration and Home Affairs that were concluded between the said union and the Sungnam market. From 2005 to 2007, the said collective agreement concluded concluded with the said union limited the scope of the Plaintiffs’ ordinary wages to “basic pay, special service allowance, work encouragement allowance, household subsidy, and fixed meal allowance,” and excluded the Plaintiffs’ ordinary wages from the scope of ordinary wages (However, in the case of the wage, it was recognized as the scope of ordinary wages by absorbing the fixed meal allowance from 2007 to the fixed meal allowance).

다. 그러나 원고들 등은 피고로부터 위 단체협약상 통상임금에서 배제된 ‘근속가산금, 교통보조비, 위생수당, 위험수당, 급량비를 정기적·일률적으로 지급받아 왔으므로 근로기준법에 따른 통상임금의 범위에는 위 단체협약이 규정하는 ‘기본급, 특수업무수당, 직업장려수당, 가계보조비, 정액급식비’ 외에 원고들 등이 정기적 일률적으로 지급받는 ‘근속가산금, 급량비, 교통보조비, 위생수당, 위험수당’이 포함되고, 원고들 등이 피고로부터 2005. 10.부터 각 퇴직하기 전까지 지급받은 근로기준법에 따른 통상임금의 범위에 포함되는 각 항목별 지급액은 별지 2 목록 ⓐ 내지 ⓙ 항목 기재와 같다.

라. 별지 2 목록 ⓐ 내지 ⓙ 항목을 기초로 하고 위 단체협약에 따라 원고들이 실제로 지급받은 휴일근무수당, 연차휴가근무수당, 시간외근무수당의 기준이 된 통상임금은 별지 3 목록 ㉠ 내지 ㉢ 항목 기재와 같고, 근로기준법에 따라 원고들이 지급받아야 휴일근무수당, 연차휴가근무수당, 시간외 근무수당의 기준이 되는 통상임금은 별지 3 목록 ㉣ 내지 ㉥ 항목 기재와 같다.

E. From October 2005 to the retirement of the plaintiffs, etc., the number of relevant holidays, (unusedd) number of days of annual leave, overtime hours, and continuous service years (including military service years) are as shown in attached Table 2 List i to v).

F. Based on the attached list 2, the Plaintiffs, etc. were paid holiday work allowances, annual leave work allowances, and overtime work allowances pursuant to the ordinary wages calculated under the above collective agreement from the Defendant before their retirement. The actual paid holiday work allowances, actual received annual leave work allowances, and overtime work allowances, which are not paid by the Plaintiffs, etc. are listed in the attached Table 4 list 2, 4, 6, and 6, and the paid holiday work allowances that are paid according to the ordinary wages calculated under the Labor Standards Act (Provided, That as seen below, holiday work allowances are calculated on the basis of daily wage (daily wage), annual leave work allowances, and overtime work allowances are listed in the attached Table 4 list 1, 3, and 5.

G. The Plaintiffs, etc. also received retirement allowances according to the average wage calculated on the basis of the ordinary wage calculated pursuant to the above group negotiation. The retirement allowances calculated and paid by the Plaintiffs according to the above method are as indicated in the attached Table 5 list. The amount of the retirement allowances that the Plaintiffs should receive according to the average wage calculated on the basis of the ordinary wage calculated pursuant to the Labor Standards Act as seen above is as indicated in the attached Table 5 list (in this case, the basis for calculation of the retirement allowances is as indicated in the attached Table 6).

아. 근로기준법에 따른 통상임금을 기준으로 산정할 경우 원고들 등이 기지급받은 법정수당을 제외하고 지급받지 못한 체불 휴일근무수당(휴일글로수당은 일급통상임금을 기준으로 한다), 체불 연차휴가근무수당, 체불 시간외근무수당은 별지 4 목록 (A), (B), (C)항목 기재와 같고, 같은 방법으로 근로기준법에 따른 평균임금을 지준으로 산정할 경우 원고들 등이 지급받지 못한 체불 퇴직금은 별지 5 목록 ㉳항목 기재와 같으며, 위 체불 법정수당과 체불 퇴직금의 합계는 별지 1 목록 ‘청구금액’항목 기재와 같다.

I. Meanwhile, Plaintiffs 29, 30, 31, and 32 are the successors of the deceased non-party 2, among the plaintiffs, etc., and their inheritance share ratio is 3:2:2, and Plaintiffs 33, 34, and 35 are the successors of the deceased non-party 3, among the plaintiffs, and their inheritance share ratio is 3:2:2.

2. Determination as to the calculation standard of holiday work allowances

A. The parties' assertion

The plaintiffs claim that, in a collective agreement, holiday allowances shall be paid 150% of the ordinary wages, and that, inasmuch as the ordinary wages under the collective agreement refer to the daily ordinary wages, the amount equivalent to 150% of the daily ordinary wages should be paid as holiday allowances even in cases where the ordinary wages are calculated in the manner prescribed by the Labor Standards Act. Accordingly, the defendant asserts that, in calculating holiday allowances, the amount calculated by the rate of 150% of the hourly ordinary wages should be calculated as holiday allowances, not daily ordinary wages, rather than daily ordinary wages, and that, in calculating holiday allowances, the amount calculated by the rate of 150% of the hourly ordinary wages should be calculated as holiday allowances.

B. Determination

In the event that the collective agreement entered into between the union and the Sungnam market is based on the aforementioned collective agreement, paid holiday work shall be early cleaning each day (in principle, 4 hours from 6:0 a.m. to 10:0 a.m.), and in this case, holiday work allowances shall be paid 150% of ordinary wages. The method of calculating holiday work under the above collective agreement is on the premise of 4 hours, and it does not clearly indicate the method of calculating the allowance as “ordinary wages” as “daily ordinary wages.” However, in light of the fact that the Defendant paid 150% of ordinary wages to the Plaintiffs, etc. when they actually attend holiday work without relation to the quantity of holiday work hours before the conclusion of the collective agreement in 2008, the Defendant paid 150% of ordinary wages as daily ordinary wages. Thus, it is reasonable to deem that there was an implied agreement between the parties to holiday work allowances on the basis of daily ordinary wages. The above Plaintiffs’ assertion is without merit.

3. Determination as to the plaintiffs' claims

In calculating holiday work allowances, the calculation shall be based on the daily ordinary wages as seen earlier. The scope of the ordinary wages to be paid by the Plaintiffs under the Labor Standards Act shall be calculated based on the calculation of statutory allowances or retirement allowances to be paid by the Plaintiffs. Accordingly, the amount of the unpaid holiday work allowance, the annual holiday work allowance in arrears, the overtime work allowance in arrears, and the retirement allowance in arrears, which were not paid by the Defendant even though the Plaintiffs, etc. were entitled to receive by the Plaintiffs, shall be as seen earlier (in the calculation of holiday work allowance based on the daily ordinary wages, such calculation shall be made as above, and there is no dispute between the parties as to the fact that the Plaintiffs, etc. have the right

Therefore, the defendant is obligated to pay to the plaintiffs each corresponding amount in the separate sheet No. 1, which is the sum of the statutory allowances in arrears and retirement allowances in arrears (However, the amount calculated by the ratio of inheritance shares of plaintiffs 29, 30, 31, 32, 33, 34, and 35, who are the deceased non-party 2 and non-party 3's successors), and to pay 20% amount per annum under the Civil Act from September 23, 2008 to February 14, 2009, which is the day following the date of service of a duplicate of the complaint in this case, as the plaintiffs seek, as requested by the plaintiffs.

4. Conclusion

Therefore, the plaintiffs' claim against the defendant of this case is justified and it is so decided as per Disposition with the assent of all.

[Attachment]

Judges O Jae-sung (Presiding Judge)