2011T 1088 Wages, etc.

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

14.N

15.O

16. P;

17. Qua

18. R

19. S;

20. Telecommunication

21. U;

22. V

23.W;

24. X

25. Y

26. Z;

27. AA

28. AB

29. AC

30. AD;

31. AE;

32. AF;

33. AG;

34. AH;

35. AI;

36. AJ

37. AK;

38. AL;

39. AM;

40,N.

Seoul High Court Decision 200

May 8, 2013

July 3, 2013

1. The defendant shall pay to the plaintiffs 5% interest per annum from May 1, 2011 to July 3, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiffs' respective remaining claims are dismissed.

3. 1/20 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum from May 1, 2011 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

A. Status of the parties

Defendant Company is the company that provides passenger transport service, and the plaintiffs are employed as the driver of Defendant Company and provide their labor until now.

(b) Details of collective agreement and wage table;

The labor relations of the employees of the defendant company, including the plaintiffs, are determined by the collective agreement and wage table concluded between the National Automatic Motor Vehicle Federation's Gangwon Branch and the defendant company (hereinafter "the collective agreement and wage table of this case"). The main contents of the collective agreement of this case and wage table of this case relating to this case are as follows.

Part III Work hours and holidays, Article 16 (1) (1) Work hours of workers engaged in transportation on board (crews) shall be deemed work hours regardless of the whole length, such as 30 minutes and basic work, overtime work, and waiting time to work on board (crew) at the time of working on board, and the company shall not extend work hours at will. (2) The number of monthly work hours shall be 16 full-time work hours. (3) The daily work hours shall be determined 8 hours and overtime work 6 hours, and the wage calculation shall be determined 14 hours and the daily work shall be paid in 26 hours. (4) The daily work hours shall be applied to 2 hours and the daily work shall not exceed average 26 hours.The company (legal allowance) shall be paid in addition to the weekly work days (applicable to 4.3 weeks), the statutory work days, the statutory work days, and the period recognized by the company as working on board in addition to the prescribed statutory allowance of 50% or more for each work on board (Article 27).

The period of service, etc. shall be aggregated but shall not be counted for a long period of time due to diseases other than their duties. Chapter V of wages, Article 42 (Definition of Wages) shall stipulate the following subparagraphs paid as consideration for labor force. (1) The legal allowances (3) paid as bonus and temporary bonus (a) - The weekly leave allowances (applicable 52 weeks per annum), the extension of weekly leave allowances, night leave allowances (b) - general allowances (a) - the specified holiday allowances, the number of hours, non-regular leave allowances, the extended number of hours, the extended number of days (c) - the date of the worker's day, the driver's day, the new period, the date of exercising the civil rights (d) x 10/60, = 3600 days = 460 days = 1640, 3600 days = 1460, 46000 (1) x 40% per annum640, 2814) 】 36140. x 14600 days per year.

8. Allowances for ordinary wages: 9,000 won for continuous service as an allowance for continuous service, 12,000 won for CCTV allowances, and 1,000 won for non-accident allowances for one year; and

(c) Payment of wages, etc.

The Defendant Company has paid the Plaintiffs with continuous service allowances, CCTV allowances, and even door allowances in accordance with the instant collective agreement and wage table. The Defendant Company did not include them in ordinary wages, but has calculated and paid overtime allowances, night work allowances, weekly holiday allowances, and paid paid holiday allowances (hereinafter referred to as “Various allowances”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 7 evidence, Eul evidence 3, Eul evidence 14-1 to 8, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

1) Under the instant collective agreement and wage table, the Plaintiffs recognized six hours of overtime work from the Defendant Company pursuant to the instant agreement and received the payment of overtime work allowances. The six hours of overtime work under the instant collective agreement and wage table do not reach the actual overtime work hours that the Plaintiffs actually worked. As such, the agreement that determined six hours of overtime work in the instant collective agreement and wage table is null and void as setting working conditions that do not meet the standard set by the Labor Standards Act. Therefore, the Defendant Company is obliged to pay the Plaintiffs overtime work allowances, which were paid to the Plaintiffs by re-determinationing the Plaintiffs’ overtime work allowances to eight hours of overtime work and 19 minutes of the actual overtime work hours.

2) In calculating ordinary wages, the Defendant Company calculated ordinary wages without including continuous service allowances, CCTV allowances, and even door allowances. The above continuous service allowances, CCTV allowances, and even door allowances are fixed wages regularly and uniformly paid, and thus, the Defendant Company is obligated to pay various allowances, including them, to the Plaintiffs.

B. The defendant company's assertion

1) The collective agreement and wage table of this case agreed to apply the total working hours uniformly to avoid the complexity of the calculation of individual working hours between the Defendant company and its employees. Such agreement is valid as a comprehensive wage agreement since it does not disadvantage the Plaintiffs, who are workers. Furthermore, given that the time and time when the employer can be deemed to continue to direct and supervise by nature and the time when the individual can freely use are mixed, the actual working hours cannot be recognized as eight hours and 19 shares.

2) Continuous service allowances, CCTV allowances, and even door allowances are paid according to the Plaintiffs’ work performance, and cannot be deemed as ordinary wages.

3. Determination on overtime work allowances

A. Whether the inclusive wage system is applicable

1) Relevant legal principles

If it is difficult to calculate working hours, such as surveillance and control work, the principle of wage payment according to the working hours under the Labor Standards Act shall apply unless there are special circumstances to deem that the provision on working hours under the comprehensive wage system cannot be applied as it is. In such a case, entering into a wage contract in the method of paying a certain amount as statutory allowances regardless of the number of working hours is impermissible insofar as it violates the regulations on working hours under the Labor Standards Act (see, e.g., Supreme Court Decision 6052, May 13, 2010). Furthermore, without calculating the basic wage in advance, the determination of the total amount of various allowances as monthly wages or daily wages or the determination of the basic wage as allowances and the conclusion of a collective agreement on wage payment contract or collective agreement on the monthly certain amount as allowances shall be valid unless there is any disadvantage to workers. Whether an agreement on the comprehensive wage system was established shall be separately determined based on the type of work, the nature of work hours, the unit of wages, the details of work hours at work, and the circumstances and circumstances of work place, etc., which are clearly expected to be separately determined.

2) Determination

In light of the above legal principles, the following circumstances, which can be known by the health class, Gap evidence 1 through 3, Gap evidence 10, Gap evidence 10-1 through 36, Gap evidence 11-1, and Gap evidence 4-1 through 4, can be classified into two separate hours due to the nature of work, waiting time, and other actual hours due to surveillance and control, and the plaintiffs' work could not be difficult to accurately calculate the actual hours. The collective agreement and wage table of this case are classified into basic wages, bonuses, and allowances. The labor contract that does not meet the standard under the Labor Standards Act is calculated based on the hourly concept of wage calculation, and the amount of basic wages and various allowances is calculated based on the number of hours that do not meet the standard under Article 15 of the Labor Standards Act, and the part of the wages of this case, which is one of the workers, is invalid under the comprehensive collective agreement, even if it is invalid, the part of the wages of this case, which is one of the workers, is not invalid under the collective agreement.

B. The plaintiffs' actual overtime working hours are examined, and there is no dispute between the parties as to the fact that the average working hours from the start date of operation to the start date of operation of the plaintiffs' day reaches 15 hours to 19 minutes (8 hours of basic working hours, 7 hours of extension and 19 minutes). Thus, it is confirmed that each of the plaintiffs' time from the start date of operation to the start date of operation during the period of time of this case reaches the average of 15 hours and 19 minutes (for this reason, the defendant company alleged that the above 15 hours and 19 minutes are merely the average of the plaintiffs' whole, and that there is no proof of the time from the start date of operation to the start date of operation of each of the plaintiffs, but the part of operation of the defendant company applies the same order in the same order without distinguishing drivers, so it can be sufficiently ratified the above facts).

On the other hand, the plaintiffs asserted that the 30 minutes of the time and the 19 minutes on board should be recognized as working hours in addition to the above 15 hours and 19 minutes, and the defendant company asserted that the 30 minutes of the time and the 30 minutes of the 15 hours and the 19 minutes of the 19 hours on board should be excluded since there are no grounds to recognize as working hours, and that they should

1) As to the 30 portion of time and type of service on board

In addition, the facts acknowledged earlier are as follows. Article 16 (1) of the collective agreement of this case provides that "working hours shall be deemed as working hours regardless of any length or condition, such as 30 minutes, basic work, overtime work, and waiting time for working on board," which is recognized as the whole purport of each film and pleading of the evidence No. 4-1 to No. 4, and that "working hours" shall be deemed as working hours of the time and the class 30 minutes of the working on board, and it is naturally anticipated that the plaintiffs should check and wait the bus to be operated prior to the starting time in order to operate the bus in accordance with the allocation of the allocation table. After arrival, it seems that a certain degree of time is required for the bus parking, rent, etc., and for this reason, the collective agreement of this case appears to be defined as working hours of each kind 30 minutes of the working on board and each class 30 minutes of the working on board and each class shall be deemed as working hours of the plaintiffs.

2) Work hours under the Labor Standards Act refer to the hours during which an employee provides labor under the direction and supervision of the employer. Even if an employee does not actually engage in work during the working hours, such hours do not guarantee the employee’s free use as a recess, and if the hours are actually under the employer’s direction and supervision, they are included in work hours (see, e.g., Supreme Court Decision 2006Da41990, Nov. 23, 2006).

According to the following circumstances, Gap evidence 1, Eul evidence 1, Eul evidence 15-1 and 2, Article 17 (2) of the collective agreement of this case provides that "the hours of recess shall be free to use." Although the employees of the defendant company may recognize that they take part in recess hours or waiting time or take part in recess hours, Gap evidence 10-1 through 36, Gap evidence 11-1 through 36, Gap evidence 4-1-4, and the whole images and arguments, the waiting time or waiting time provided to the plaintiffs shall not be determined every day for a certain time, but shall be deemed to include the waiting time of the plaintiffs' waiting time or waiting time after completing adjustment of the vehicle's schedule within the next start time, it shall be deemed that the plaintiffs' waiting time including the plaintiffs' waiting time or waiting time may not be free to organize or stop their waiting time within one or six hours, in light of the following circumstances:

C. Sub-committee

Therefore, the Plaintiffs’ overtime hours are 8 hours and 19 minutes (i.e., the average hours from the start of operation to the start of operation - 15 hours and 19 minutes - 8 hours, the basic hours of work + 30 minutes for the time of work on board and 19 minutes). Thus, the Defendant Company’s overtime allowance unpaid to the Plaintiffs is as follows: “the sum of “the calculation details of overtime allowance for 2 hours and 19 minutes for overtime work” as of April 30, 201, as of April 30, 201. (Calculation formula: 2 hours: 19 minutes x X x 16 days x X X x X months).

4. Whether continuous service allowances, etc. are ordinary wages;

A. Criteria for determination

Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that the term “ordinary wage” refers to hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract amount to be paid for a prescribed amount or total amount of work on a regular and uniform basis to the elderly. Therefore, ordinary wage refers to ordinary wage to be paid for a prescribed amount or quality on a regular and uniform basis, which is paid on a fixed and average basis regardless of the actual working day or actual amount of wage actually received. Here, the term “ uniform payment” includes not only the payment to all workers, but also the payment to all workers who meet a certain condition or standard, and the term “specified condition” refers to not only the payment to all workers, but also the term “regular condition” in light of the concept of ordinary wage to calculate a fixed and average wage (see, e.g., Supreme Court Decision 2004Da41217, Sept. 9, 2005).

Therefore, ordinary wages are not paid periodically or uniformly, or are not fixed wages, such as whether payment is made or the amount varies depending on actual work performance, if the amount is not fixed.

However, if money and other valuables provided to an employee are regularly and uniformly paid with money and other valuables, the ordinary wage cannot be excluded on the ground that it does not have been paid directly or in proportion to the prescribed work hours (see, e.g., Supreme Court Decision 94Da19501, Feb. 9, 1996).

In addition, whether the wage paid to a worker is included in the scope of ordinary wage is determined objectively depending on the nature of the wage, and it is not determined according to the labor-management agreement. Thus, even if the labor-management agreement that excludes the allowance to be included in the ordinary wage from the ordinary wage is established, it is null and void as the labor conditions that do not meet the standard under Article 15(1) of the Labor Standards Act (see, e.g., Supreme Court Decision 93Da4816, May 11, 1993).

B. Determination by item

1) If the purport of the entire argument is added to the statement in the evidence No. 1 of continuous service allowance A, the Defendant Company recognizes that the employee, including the Plaintiffs, has paid continuous service allowance according to the number of years of continuous service according to the collective agreement of this case and the wage table, including monthly wages. Such continuous service allowance paid is a fixed wage that has been paid periodically and uniformly to all workers who meet the certain conditions of a certain number of years of continuous service, regardless of the actual service performance, and is included in ordinary wages.

2) In addition to the statement in Gap evidence No. 1 of CCTV allowances, the defendant company may recognize the fact that the defendant company paid CCTV allowances of 12,000 won per day to the employees who drive buses including the plaintiffs, as prescribed by the collective agreement and wage table in this case. The CCTV allowances paid as above constitute ordinary wages because it is a fixed wage that has been paid periodically and uniformly, regardless of actual service record.

Meanwhile, according to the evidence No. 2, the fact that the labor-management agreed not to include CCTV allowances in ordinary wages can be acknowledged, but whether the wages paid to the worker as seen earlier are included in the scope of ordinary wages is determined objectively depending on the nature of the wages, and it is not determined in accordance with the labor-management agreement. Thus, the CCTV allowances cannot be deemed as not ordinary wages solely based on the above labor-management agreement.

3) According to the purport of the oral argument as a whole, the Defendant Company may recognize the fact that, as prescribed in the instant collective agreement and wage table, the bus drivers, including the Plaintiffs, paid even KRW 1,00 per day even allowance to the employees who drive the bus, pursuant to the fact that the Defendant paid even allowance of KRW 1,00 per day. As such, even if an even allowance paid is a fixed wage paid periodically and uniformly, regardless of actual work performance, it constitutes ordinary wage.

C. Sub-decision

Thus, the defendant company is obligated to pay the difference between various allowances and various allowances already paid based on hourly ordinary wages calculated, including continuous service allowances, CCTV allowances, and even door allowances, to the plaintiffs.

5. Calculation of the unpaid various allowances.

A. Relevant provisions

Article 6(2) of the Enforcement Decree of the Labor Standards Act provides that with respect to the method of calculating an hourly ordinary wage as a matter of course, ① the amount determined as an hourly wage (Article 1); ② the amount determined as a daily wage by dividing that amount by the number of contractual working hours per day (Article 2); ③ the amount determined as a weekly wage by dividing that amount by the number of contractual working hours per day; ③ the amount determined as a weekly wage by the number of contractual working hours per week (Article 3); the amount determined as a monthly wage by dividing that amount by the number of contractual working hours per week; and (iv) the amount determined as a monthly wage by the number of contractual working hours per month (Article 6(2) of the Enforcement Decree of the Labor Standards Act divided by the number of contractual working hours per year multiplied by the average number of contractual working hours per year per week; and (v) the amount determined as a period other than a day, week, or month by dividing that amount by the number of contractual working hours per week; and (v) the amount determined as a minimum under Article 5(1)7) of the Labor Standards Act.

B. The hourly rate of continuous service allowances paid on a monthly basis for the calculation month of the ordinary wage of continuous service allowances shall be calculated by dividing the monthly continuous service allowances (9,000 won or KRW 7,000) by 209 hours, an average of 40 hours per week, x52.143 (average number of hours per week plus 8 hours per week 40 hours), and the above amount multiplied by the average of 19.6 hours per month, 283.74 hours in total, 199.74 hours in night work, night work, weekly holiday work, and paid holiday work (8 hours x 19.5 x 16 x 16 x 16 x 0 x 0 0 x 0 5 x 0 5 x 16 16 x 16 x 16 x 52.5 x 16 x 16 x 16 x 16 x 16 x 16 months in average number of unpaid hours.

Therefore, all kinds of allowances that the defendant company should pay to the plaintiffs due to the failure to pay the ordinary wages of continuous service to the plaintiffs are as shown in the "Calculation Details of the Allowances for Continuous Service" attached Form 3 as of April 30, 201, as of April 30, 201.

(c) The hourly rate of CCTV allowances paid as a unit of the calculation date of various allowances, including ordinary wages, for CCTV allowances, shall be 1,500 won (12,000/8 hours), and the amount calculated by multiplying the above amount by the number of months during which the plaintiffs worked, and then multiplying the number of months during which the plaintiffs worked, shall be all kinds of allowances that the defendant company has not included in the ordinary wages of CCTV allowances

Therefore, all kinds of allowances that the Defendant Company should pay to the Plaintiffs due to the failure to pay CCTV allowances to the Plaintiffs include ordinary wages are as indicated in the “CCTV allowances” column in attached Table 4. as of April 30, 201.

D. The hourly amount of a door allowance paid as a unit of the calculation date of various allowances, including the ordinary wage, is 125 won (1,000/8 hours). The above amount multiplied by the number of months for which the plaintiffs worked after multiplying the above amount by the number of months 283.74 hours, and the defendant company’s calculation date of the even though the door allowance was paid as a unit of the calculation date of the ordinary

Therefore, as of April 30, 201, various allowances to be paid by the defendant company to the plaintiffs due to the failure to pay even ordinary wages are described in the "the calculation of the Daehan even though even transportation allowances" as of April 30, 201.

6. Conclusion

Therefore, the defendant company is obligated to pay damages by the rate of 5% per annum under the Civil Act from May 1, 2011 to July 3, 2013, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, so the defendant company is obligated to accept the claim of the plaintiffs within the scope of the above recognition, and the remaining claims are dismissed as it is without merit.

The presiding judge, appointed judge

Judge Hong-man

Judges Lee Jae-he

1) Although the wage table (B) of the year 2009 and the wage table (A) of the year 2010 are somewhat different, the method of calculating basic working hours and calculating allowances.

There is no difference between the wage table (A) in 2009.

2) 7,000 won from August 1, 2007 to July 31, 2009, and 9,000 won from August 1, 2009 to July 31, 2011

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.