2015Na23674 Wages

1. B

2. D;

3. E.

4. F;

5. G.

6. H;

K Co., Ltd. (formerly: Ltd.)

Daegu District Court Decision 2014Gahap4911 Decided September 3, 2015

August 22, 2018

November 2018, 21

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

The judgment of the first instance is revoked. The defendant paid to the plaintiff Eul 56,318,653 won, and 50,92,730 won to the plaintiff Eul, 49,056,121 won to the plaintiff Eul, 42,490,324 won to the plaintiff Eul, 40,836,622 won to the plaintiff Eul, 44,276,831 won to the plaintiff Eul, and 6% per annum from October 11, 2013 to the delivery date of a copy of the application for change of the purport and cause of the claim in this case, and 15% per annum from the next day to the date of full payment (the plaintiff reduced the purport of the claim in the trial). Meanwhile, the plaintiffs reduced the part of the claim for additional premium payment of holiday work wages and overtime work wages without additionally reducing or changing the claim for reduction as above (the plaintiff withdrawn the duplicate part of the claim for additional premium payment).

1. Basic facts

A. The Defendant is a manufacturer that produces teas, etc. at the seat of the Daegu-gun District Court J, and the Plaintiffs are monthly-class workers employed by the Defendant.

B. From September 12, 2002, the Defendant entered into a collective agreement with the Plaintiffs’ trade union and paid wages to the Plaintiffs in accordance with the collective agreement and the Defendant’s rules of employment. The contents related to this case under the collective agreement and the rules of employment are as follows.

▣ 단체협약제5장 근로시간제32조 (근로시간)근로시간이라 함은 소정 근로시간 내에 행하여지는 실제 작업시간, 작업준비시간, 조회시간, QC 활동시간, 청소시간, 교육시간, 그리고 회사가 주관하는 각종 행사시간을 통틀어 말한다.

1. The basic working hours shall be eight hours a day and shall be forty-four hours a week. 2. The prescribed working hours per month shall be 174 hours. 1. The company shall grant the paid leave of one day per month to all the workers who have opened a prescribed number of working days per month; 2. The paid leave of ten days per month shall be 90 days per month as of January 1, and the paid leave of eight days per month as of five or more; 10 days per month for the members who have worked continuously for more than 90 days; 20 days per month as of May 2, 19, the paid leave of one day per year shall be paid for 10 days per month as referred to in paragraph (2). The remaining unused year shall be adjusted by 100% of ordinary wages; 40% of ordinary wages shall be paid for six months per month as of June 1, 2006; and 20% of ordinary wages shall be paid to the members in consideration of the following wage rate:

1. 기본급 2. 직급수당 3. 근속수당 4. 가족수당 5. 면허수당 6. 자격수당제7장 교육 및 복지후생제58조 (교통편의)회사는 다음과 같이 교통편의를 제공한다.1, 통근버스를 운행하지 않는 조건으로 지급하는 자가운전보조수당을 월 300,000원으로하며, 퇴직금 산정시 산입한다.2. 조합의 자체행사, 서클행사 및 교육 등으로 교통편의를 요청할 시 용역버스를 노사협의하여 제공한다.▣ 취업규칙제4장 임금제74조 (용어의 정의)본 규칙에서 사용하는 용어의 정의는 다음 각 호와 같다.1) "임금"이라 함은 근로의 대가로 종업원에게 지급하는 일체의 금품을 말한다.2) "기본급"이라 함은 근로의 대가로 지급키로 계약한 임금의 기초 단위를 말한다.3) "본봉"이라 함은 "기본급 + 직급수당"을 말한다.4) "수당"이라 함은 각 수당의 지급기준에 따라 지급키로 한 일정액을 말하며 직책수당,직급수당, 근속수당, 가족수당, 면허수당, 중식수당, 기타의 자격수당으로 구분한다.5) "보조금"이라 함은 복지후생 정책에 따라 지급하는 금품을 말하며 교통비보조금, 보험보조금, 차량스티커광고보조금, 학자금보조금 등을 말한다.6) "통상임금'이라 함은 "기본급 + 직급수당 + 근속수당 + 면허수당 + 자격수당 + 가족수당"7) "평균임금"이라 함은 일체의 금품 중 보조금을 제외한 금액으로 계산한다.8) "성과급"이라 함은 당해 연도의 실적에 따라 이사회의 승인에 의하여 지급되는 상여금을 말한다.제76조 (임금마감일과 지급일)임금은 매월 21일부터 익월 20일에 마감하여 25일에 지급한다. 25일이 휴일인 경우에는

24 days shall be paid on 24 days.The amount of wages to be paid on a daily basis shall be calculated on the basis of contractual work hours, if the number of working days falls short of the number of days due to entry or retirement. The amount of ordinary wages of Article 92 (ordinary wages) shall be calculated on a regular basis. The amount of basic wages + family allowances + family allowances + technical allowances + qualification allowances + qualification allowances + additional 50% shall be paid for overtime of Article 93 (Extension, Night and Night Work Allowances) or night work.2) Night work hours shall be 0:0 to 06:00,000.3) The amount of bonuses shall not be paid on a monthly basis, plus 10% of the annual salary paid on 20:0 days following the following day. If the company does not use monthly leave, the amount of bonuses shall not be paid on a monthly basis on 10% bonus of the company's basic monthly salary paid on 3rd day (20%) and the amount of bonuses paid on a monthly basis.

[Ground of recognition] The fact that there is no dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 6, 18, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Although bonuses, self-driving allowances constitute ordinary wages, the Defendant calculated ordinary wages, excluding them. Accordingly, the Defendant is obliged to pay the Plaintiffs the remainder after deducting the respective allowances already received by the Plaintiffs from the total amount of such allowances, based on the new ordinary wages calculated including bonuses and self-driving allowances. Therefore, the Defendant is obliged to pay the Plaintiffs the remainder of such allowances after deducting the respective allowances already received by the Plaintiffs from the total amount of such allowances.

B. Defendant’s assertion

Inasmuch as bonuses and self-driving allowances paid to the Plaintiffs are not remuneration for contractual work, or do not fall under ordinary wages due to lack of fixedness, the Defendant is not obligated to pay additional money to the Plaintiffs. Even if ordinary wages are recognized, claiming various allowances in addition to ordinary wages is contrary to the labor-management agreement, thereby causing serious managerial difficulties to the Defendant, and thus, it cannot be permitted in violation of the good faith principle.

3. Determination as to whether bonuses and self-driving assistance allowances constitute ordinary wages

(a) Bonuses;

1) Extension of the Labor Standards Act - The standard for calculating premium pay for night and holiday work, advance notice allowance for dismissal, annual leave allowance, etc., and the minimum amount of average wage means money and valuables agreed to be paid as remuneration for contractual work ordinarily provided by an employee during contractual work hours, which are regularly, uniformly, and fixed.

Furthermore, “fixed wage” refers to a minimum amount of wage that an employee who has worked on a voluntary day regardless of the name of the wage, regardless of the number of days immediately following the day, is obligated to receive as a reward for the said employee’s work. As such, if an employee provides contractual work on a voluntary day, it can be deemed that the employee is obligated to pay as a matter of course, regardless of whether the employee satisfies additional conditions, or the amount of the wage determined in advance is fixed. Here, the term stated in this context refers to a condition that is not yet determined as to the fulfillment of the contractual work at the time of extension, night, or holiday of the worker’s work at his/her discretion. As such, if an addition is made on the basis of the facts of the king, which are already determined as the fulfillment of the contractual work at the above time, such as having a specific career or having a certain continuous work period, it does not interfere with the recognition of fixedness, but it is difficult to determine that the employee has the nature of the wage at issue 20 days prior to the said time of voluntary payment.

2) The defendant paid bonuses equivalent to 1,200% of ordinary wages to workers including the plaintiffs in accordance with the collective agreement and the rules of employment on a regular basis by 100% on the monthly wage payment date, but only paid bonuses to workers who held office as of 20 days are as seen earlier. Therefore, the defendant's bonus paid by the defendant is qualified to receive wages for a certain period of time (20 days). Thus, even if a worker retires before a certain period of time, it is difficult to see that the worker has the nature of remuneration for contractual work, and it does not constitute ordinary wages.

3) As to this, the Plaintiffs asserted that, inasmuch as Article 85 of the Rules of Employment provides that “if the number of working days falls short of the number of working days due to the entry or retirement, the wages shall be calculated on a daily basis, and Article 98(6) provides that “the number of working days falls short of the number of working days, the bonuses for retired workers shall be calculated on a daily basis.” Accordingly, even if a worker under his/her control retires before a specific point of time, the Defendant has paid a certain amount of wages in proportion to the number of working days, so fixedness is not denied to the extent that it is paid in proportion to the number of working days.” Article 98(5) of the Rules of Employment argues that if fixedness is denied on the sole basis of the provision that “the bonus payment date shall be paid only to the person who worked as

However, recognition of the above evidence and Eul evidence No. 7 by considering the whole purport of the pleadings

The following circumstances are as follows: ① Article 98(6) of the Rules of Employment of this case means that “only a person who held office as of 20 days shall be paid bonuses” should be interpreted as if the number of working days falls short of the number of working days due to temporary retirement, etc.: ② Each statement of evidence Nos. 7, 8, 9, and 10 (including additional number) between the defendant and workers should be paid fixed in proportion to the number of working days; ③ Article 45 of the Rules of Employment of this case only determines the rate and time of payment of bonuses and does not stipulate specific standards for payment of bonuses; ④ Article 98(5) of the Rules of Employment of this case provides that the payment standards can be determined through detailed rules of employment for the payment of bonuses, etc. ④ The above provision of the Rules of Employment No. 98(2) of the Rules of Employment cannot be deemed as a supplementary provision for the payment of bonuses to the whole workers and workers under Article 98(5) of the Rules of Employment, including the above provision of the collective agreement.

(b) A self-driving allowance;

1) If a vehicle maintenance cost was paid on condition of vehicle possession, or was paid for the purpose of subsidizing expenses incurred in using a vehicle owned by an employee for business purposes, compensation for actual expenses shall not be deemed to have been paid as an object of work, but if it was paid uniformly to all employees or based on a certain class, it may be deemed that it was paid as an object of work (see, e.g., Supreme Court Decision 2000Da18127, May 31, 2002)

2) In full view of the purport of the written evidence No. 23 of the argument, the Defendant, regardless of whether he/she owns a vehicle and self-driving, pursuant to the instant collective agreement, is found to have paid the amount of self-driving allowance of KRW 300,000 each month periodically and uniformly, regardless of whether he/she owns a vehicle to all his/her employees under the instant collective agreement, and whether he/she has operated a vehicle. Therefore, it is reasonable to view that it is a fixed wage paid periodically and uniformly.

3) On the other hand, the defendant asserts that the payment of self-driving allowance does not constitute ordinary wages in terms of welfare or reimbursement of actual expenses, as a condition under which a bus is not operated for the "traffic convenience to commute to and from work of workers" following the abolition of the bus service.

① Since the Defendant discontinued the provision of a bus around 1995, the fact that it does not provide a bus until now, ② the provision that self-driving allowance is paid on condition that it does not operate a bus under a collective agreement can be seen as having abolished the provision of a bus through the above, and explained the background leading up to introducing the self-driving allowance. ③ The Defendant’s operation of a bus through the regular, uniform, and fixed operation of a bus is not uncertain at the time of the provision of labor for extended, night, or holiday work on a voluntary date, but it is true that it is confirmed whether it is commuting to the workplace using the bus at that time. ④ A collective agreement includes the self-driving allowance and calculate the retirement allowance. In addition, according to each statement of the evidence Nos. 13 and 14 (including the serial number) of the collective agreement, the Defendant appears to have paid the allowance for self-driving allowance in proportion to the number of working days of workers. In light of the fact alleged by the Defendant, it is difficult to view that the regular, uniform, and fixed operation allowance constitutes ordinary wages and the allowance for welfare or reimbursement for actual expenses.

4. Determination on whether an additional amount has been paid

A. Relevant legal principles

Inasmuch as ordinary wages are an instrument concept prescribed by the Act to establish the standard of working conditions, it is not a nature that an employer and an employee may agree separately on the meaning, scope, etc. of ordinary wages under the Labor Standards Act. Therefore, even if the employer and an employee agreed to exclude wages belonging to ordinary wages from ordinary wages due to its nature, such agreement is not effective. The provisions of the Labor Standards Act that provide for an additional payment of more than 50% of ordinary wages for extended, night, and holiday labor are set the minimum standard for calculating wages for each relevant labor. As such, in cases where the employer and an employee agreed to calculate additional wages for extended, night, and holiday labor without excluding part of ordinary wages, if the amount calculated according to the labor-management agreement falls short of the above standard prescribed in the Labor Standards Act, the labor-management agreement is null and void within the extent that falls short thereof, and the invalidated portion shall comply with the standard prescribed in the Labor Standards Act (see Supreme Court en banc Decision 2012Da89399, Dec.

B. Obligations to pay unpaid statutory allowances

The defendant paid legal allowances to the plaintiffs based on the basic hourly rate that does not include self-driving allowances as ordinary wages. Therefore, the defendant is obliged to pay the difference between the amount calculated pursuant to the provisions of the Labor Standards Act and the amount calculated in accordance with the collective agreement, etc. based on the ordinary ordinary wage, including self-driving allowances, as unpaid wages. The detailed calculation details are as follows.

1) In ordinary cases of the previous application, the Defendant calculated the Plaintiffs’ ordinary wage [the basic wage + the class allowance + the continuous service allowance + the family allowance + the license allowance + 174 hours]; and the specific amount is as indicated in the column of “existing ordinary wage rate” column.

2) In full view of the purport of the argument in the evidence No. 1 of ordinary ordinary hours under the Labor Standards Act, the hours of work in Articles 32 and 36 of the instant collective agreement are eight hours per day, forty hours per week, and the day Saturdays and Sundays, which are Saturdays and weekly holidays, are paid holidays. As such, the monthly contractual work hours that constitute elements for calculating hourly ordinary wages in this case are 243 hours (=40 hours per week + 16 hours per week + 16 hours), 7 daysx 365 days/12 months, and small numbers of days).

In addition, family allowances under the Labor Standards Act are recognized as ordinary wages only for 10,000 won per person (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

In accordance with Article 6(2) of the Enforcement Decree of the Labor Standards Act, the specific formula in which ordinary wage is calculated pursuant to Article 6(2) of the Enforcement Decree of the Labor Standards Act is [the basic pay + the class allowance + the continuous service allowance + the family allowance + the license allowance + the family allowance + the self-driving allowance + the KRW 10,000 + the self-driving allowance)/243 hours. The specific amount is the same as the statement in the ordinary wage after the change of the ‘the difference in the overtime allowance for the hour.'

3) Difference of overtime work allowances

A) Under the Labor Standards Act, the amount calculated by subtracting the amount calculated by multiplying the ordinary rate of overtime hours by the number of overtime hours and the premium rate for overtime hours from the amount calculated by multiplying the ordinary rate of overtime hours under the said Act. The premium rate is 150% of the ordinary wage in the case of overtime work, 50% of the ordinary wage in the case of overtime work, 150% of the ordinary wage in the case of night work, 150% of the ordinary wage in the case of overtime work, and 200% of the ordinary wage in the case of overtime work exceeding eight hours in the case of overtime work a day. Meanwhile, in the case of overtime work, the Plaintiffs claim that, in the collective agreement, “200% of the ordinary wage in the case of overtime work and overtime work, the premium rate of 150% of the ordinary wage in the case of overtime work should be paid by adding 200% of the premium rate for overtime work.

However, comprehensively taking account of the aforementioned evidence and the purport of the entire arguments, ① Article 50 subparag. 3 of the collective agreement in 2002 provides that “10/100 of ordinary wages shall be paid at the time of extension of paid holidays”; ② The members of the labor union to which the plaintiffs belong enter into a collective agreement in 2004 with the defendant, and 20/100 of ordinary wages shall be paid at the time of extension of paid holidays, but there is room to interpret that the above provision should be paid at 100/100 of ordinary wages as the day of paid holidays, so there is room to interpret that 200/100 of ordinary wages should be changed according to the method of the collective agreement in 2004, ③ The fact that the collective agreement in 2004 provides that “20/100 of ordinary wages shall be paid at the time of extension of paid holidays,” ④ The fact that the above provision provides for the extension of paid holidays by 200% from the collective agreement in 2005 to the above time of paid holidays.”

C) Accordingly, when calculating the difference between overtime work allowances, the difference between overtime work allowances and overtime work allowances is as indicated in the separate column of “the difference between overtime work allowances, weekly paid leave allowances, public holiday allowances, night work allowances, overtime work allowances, weekly paid leave allowances, and public holiday allowances.” All of the plaintiffs can be known that the amount actually paid by the plaintiffs is a larger amount than the minimum amount set forth in the Labor Standards Act (as alleged by the plaintiffs, the same applies when calculating 350% of the ordinary ordinary wage in the case of weekly paid leave allowances and public holiday work paid to the plaintiff). This is because, in calculating the ordinary time wage that the defendant paid to the plaintiff, the monthly fixed work hours, which is the basis for calculation, were applied more than 243 hours under the Labor Standards Act, and family allowances (excluding 10,000 won per person), which do not fall under ordinary wages, were recognized as ordinary wages in favor of the plaintiffs.

4) Article 37 of the collective agreement on the difference in monthly allowances and Article 95 of the Rules of Employment provide workers with monthly leave of 15 days per month separately from annual leave, as seen earlier. However, as the former Labor Standards Act, which has guaranteed monthly leave, was amended by Act No. 6974 on September 15, 2003, which has been amended by Act No. 6974 on September 15, 2003, changed the system that grants 15 days annual leave for the continuous work year in substitution of the previous monthly leave, even if the Defendant grants monthly leave in accordance with certain conditions and paid the unpaid monthly leave, such monthly leave has the nature of an agreement allowance recognized by a collective agreement rather than the statutory allowance as stipulated under the Labor Standards Act. Therefore, as long as the collective agreement on the basis of the monthly ordinary wage under the collective agreement is valid, this part of the Plaintiffs’ monthly allowance is without merit.

(v)the difference in annual allowances;

A) The Defendant asserts that the monthly allowance should be included in the calculation of the monthly allowance for the payment of the monthly allowance, but as seen earlier, the monthly allowance paid for the unpaid monthly allowance is not a right under the Labor Standards Act, but a right under an agreement. Therefore, the monthly allowance used by the Plaintiffs cannot be deemed as the annual leave, and as such, the monthly allowance paid for the calculation of the unpaid annual allowance should not be deducted.

B) Accordingly, when calculating the difference in annual allowance, the difference in the annual allowance is indicated in the separate column of the difference in the annual non-use allowance of attached Table 2, and all of the plaintiffs can be known that the amount actually received is larger than the amount set by the lower limit set by the Labor Standards Act. This is because, as seen earlier, the defendant applied the monthly contractual work hours and family number (excluding 10,000 won per person) more favorable than the Labor Standards Act.

Ultimately, although self-driving allowance is recognized as ordinary wages as alleged by the Plaintiffs, it is more favorable than the application of the Labor Standards Act to the extent that the Defendant paid overtime allowance, annual allowance, etc. to the Plaintiffs based on the ordinary wage calculated in accordance with the collective agreement and the rules of employment. Therefore, there is no amount that the Defendant should pay to the Plaintiffs

5. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and the judgment of the court of first instance is justified with this conclusion, and all appeals by the plaintiffs are dismissed.

The presiding judge and judge of interest-gu

Judges Song privateization

Judges Yellow-gu