[1] In a case where it is unclear whether the item of "wages, such as annual paid leave compensation, monthly paid leave compensation, and physical training expenses, which are elements of calculating the average wage under the collective agreement, includes heavy food and transportation expenses, the case holding that the basis for calculating the average wage does not include heavy food and transportation expenses in light of all the circumstances

[2] The case holding that the probationary period in calculating retirement allowances is included in the continuous service period

[1] In a case where it is unclear whether the item of "wages, such as annual paid leave compensation, monthly paid leave compensation, and physical training expenses, which are elements of calculating the average wage under the collective agreement, includes heavy food and transportation expenses, the case holding that the basis for calculating the average wage does not include heavy food and transportation expenses in light of all the circumstances

[2] The case holding that, during the period of probation before being issued as a regular employee, the period of probation should also be included in the period of continuous service for the calculation of retirement allowances, since it is reasonable to view that the period of probation was in a subordinate relationship with the company even if it was not issued as a regular employee, and the period of probation should also be included in the period of probation for the calculation of retirement allowances, since the period of probation was not included in the period of probation

[1] Articles 19 and 34 of the Labor Standards Act / [2] Article 34 of the Labor Standards Act

B. Nahee

[Defendant-ho] Integrated Finance Co., Ltd. (Law Firm Seodae, Attorney Park Dog-young, Counsel for defendant-appellant)

1. The Defendant shall pay to the Plaintiff (Appointed Party) Nashee 1,582,281 won, 3,412,684 won, 1,99,781 won, 1,398,586 won, and each of the said money to the Selections Kim-young, 5% per annum from August 1, 1999 to April 18, 2003, and 25% per annum from the following day to the full payment date.

2. Of the litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant.

3. Paragraph 1 can be provisionally executed.

The defendant held that the defendant shall pay to the plaintiff (appointed party, hereinafter referred to as the "Plaintiff") Nashee the amount of KRW 9,343,083, 12,136,165, 7,115, 7,502,380, and 7,5000 and 25% per annum for each of the above amounts from August 1, 1999 to the service date of a duplicate of the application for conciliation from August 1, 199 to the service date of a duplicate of the application for conciliation and from the next day to the full payment date to the date of 25% per annum.

1. Basic facts

A. The plaintiff Lee Young-hee was employed on July 18, 1990; on Jun. 13, 1988; on Nov. 5, 1994; on Jul. 1, 1994; on Jul. 1, 1994; on the part of the designated parties, the designated parties were employed as the Defendant’s probationary employees (on the part of the defendant’s expression), from Mar. 1, 1991; on Feb. 20, 1989; on Feb. 21, 1995; on Feb. 21, 1995; on July 1, 1994; and on the part of the designated parties, they were employed as regular employees and voluntarily retired on July 31, 199.

B. On June 19, 199, the Plaintiff and the designated parties (hereinafter referred to as the “Plaintiff, etc.”) agreed to pay the amount of 18 months on the basis of average wages for the members who have exceeded 3 years of continuous service as honorary retirement allowances with respect to the honorary retirement.

C. Article 36(3) of the Collective Agreement (collective agreement of May 25, 1995) which was applied around the time of retirement of the plaintiff et al. provides that "average wage" refers to the total amount calculated by dividing the total amount of salaries, allowances, etc. for the three-month period immediately preceding the month in which the ground for calculating the average wage occurred by three and the total amount of wages, such as regular and special bonuses, annual and monthly paid leave compensation, and physical training expenses for the one-year period immediately preceding the month in which the ground for calculating the average wage occurred, by 12." Article 68 provides that "The defendant shall pay middle class (five thousand won per day for the retired employee), physical training expenses, transportation expenses (one hundred thousand won per month for the non-driving employee), disaster relief expenses, light training expenses, self-driving expenses, etc."

(d) The Defendant paid retirement allowances and honorary retirement allowances upon the retirement of the Plaintiff, etc. (Plaintiff Na Young-hee average wage: 1,582,281, retirement allowances; 22,151,934, honorary retirement allowances; 28,481,058, average wage: 1,706,342, retirement allowances; 30,714,156, honorary retirement allowances; 30,714,156, honorary retirement allowances; 1,99,781, retirement allowances; 11,98,686, honorary retirement allowances; 35,96,058, honorary retirement allowances; 1,398,586, retirement allowances; 90,790, 102, honorary retirement allowances; 25,174,548, and 548, average wage during the continuous service period; and the probation period was excluded from the average wage during the regular service period.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2, Eul evidence 5-1-4, Eul evidence 4, 11, 16, and all the arguments

2. The parties' assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the average wage, which serves as the basis for calculating the retirement allowance and honorary retirement allowance of the plaintiff et al., shall include a salary-based heavy class and transportation expenses in accordance with a collective agreement concluded between the defendant and the association, and that the starting point for calculating the retirement allowance should be included in the calculation of the period of service by the plaintiff et al. for the period of service until the period of service provided by the plaintiff et al...

B. Defendant’s assertion

In this regard, the defendant asserts that: (a) heavy food and transportation expenses do not constitute average wage under the Labor Standards Act because they are not paid as remuneration for work, and even if they are the average wage under the Labor Standards Act, they are excluded from the definition of average wage under the collective agreement between the union and the defendant; and (b) the period before the plaintiff et al. is employed as a regular worker cannot be deemed as the average wage which serves as the basis for calculating the retirement allowances and honorary retirement allowances of the plaintiff et al.; and (c) the period before the plaintiff et al. is employed as a regular worker cannot be

(c) Markets:

(1) Therefore, I first examine whether the heavy food and transportation cost constitute the average wage under the collective agreement concluded between the union and the defendant.

It is reasonable to view that the Defendant’s heavy and transportation expenses paid to the Plaintiff, etc. were individually and periodically paid to the employees regardless of provision of labor, and rather, it is reasonable to view that the Defendant’s provision was uniformly and periodically paid to the employees (in the case of transportation expenses, it can be deemed that the Defendant’s provision of transportation expenses was uniformly and periodically paid to employees who do not own any vehicle or that the amount of transportation expenses was paid to employees who owned any vehicle, within the scope of the former’s transportation expenses). However, the aforementioned heavy and transportation expenses constitute average wages under the Labor Standards Act. However, the amount of retirement allowances received by the Plaintiff, etc. in this case exceeds the statutory retirement allowances under the Labor Standards Act due to the decline in the payment of retirement allowances, and thus, it is reasonable to view that the Defendant’s provision of Article 36(3) of the collective agreement (the collective agreement of May 25, 195) was included in the calculation method of the average wages of the Plaintiff, etc. as part of the elements of calculating the average wages, and thus, it should be understood that the aforementioned provision should be included in the aforementioned annual wage payment.

(ii)Next, whether the training period for the plaintiff et al. is included in the continuous service period;

In full view of the purport of the pleading in the testimony of the witness most Dong-dong, the plaintiff et al. worked and retired at the same time as the defendant's regular employees during the period of settlement before being issued as the defendant's regular employees, and affixed the defendant's business opening counter as a person in charge of the pre-admission of entrance and withdrawal, affixed the defendant's business opening counter as a person in charge of the pre-admission of entrance and withdrawal, received the approval from his superior, and recognized the fact that the defendant's regular employees and full-time or full-time employees are assigned with the defendant's order of work and night duty. According to the above facts of recognition, even if the plaintiff et al. did not have been issued as a regular employee, it is reasonable to view that the plaintiff et al. was in a subordinate relationship

(3) In addition, the defendant paid the amount to the plaintiff et al. in accordance with the mediation order of the Labor Agency regarding retirement pay, and there is no evidence to prove that there was an implied agreement between the plaintiff et al. to no longer issue as to retirement pay after receiving it.

(4) Accordingly, the defendant is obligated to pay 1,582,281 (average wage of 1,582,281 x 1,581 x unpaid rate of 1,584) to the plaintiff Lee Young-hee, 3,412,684 (average wage of 1,706,342 x 2 x unpaid rate of 2), 1,99,781 (average wage of 1,99,781 x 1,399,781 x unpaid rate of 1), 1,398,586 (average wage of 1,398,586 x 1 x 586 x 1) and delay damages calculated from August 1, 199 to 250 days following the date of payment to 200 days after the date of payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Lee In-ok