[1] Whether Article 2(1) of the former Enforcement Decree of the Labor Standards Act, which provides an exception to the calculation of average wages, constitutes a limited provision (affirmative), and whether the number of days during the period of standby announcement before retirement and the amount of wages paid during that period are included in the calculation of average wages (affirmative)

[2] The method of calculating the amount of average wages where average wages are significantly less or more than ordinary wages due to the period of standby and its inclusion of wages during the period of standby.

[3] The case holding that, even if an overtime work allowance is not paid according to the waiting order for retirement allowance, the overtime work allowance before the standby order cannot be included in the average wage when calculating retirement allowance, in the case where the wage provision provides that the overtime work allowance shall be paid in full during the waiting period according to the retirement allowance regulations

[1] Article 2(1) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320, Mar. 27, 1997) providing an exception to the calculation of average wages under the main sentence of Article 19(1) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997) shall be deemed to be a restrictive provision. However, in cases where a worker retires from office before he/she retires from office, the period of standby order does not fall under any of the periods stipulated in Article 2(1) of the former Enforcement Decree of the Labor Standards Act. Thus, by applying the above provision, the number of days of such period and the amount of wages paid during such period shall not be excluded from the basis for calculating average wages.

[2] If the average wage is remarkably less or more than the ordinary wage by including the period of standby and the period of standby, the average wage shall be calculated by applying Article 5 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320, Mar. 27, 1997) in light of the special and contingency circumstances, and as prescribed by the Minister of Labor, the average wage shall be calculated by reflecting the ordinary living wage of the worker in light of the basic principle of the average wage and the purport of the retirement allowance system. However, if the average wage is significantly less or more than the ordinary wage, the average wage shall be calculated on the basis of the wage paid for the three months prior to retirement including the period of standby, in accordance with the principle.

[3] The case holding that, even if an overtime work allowance is not paid according to the waiting order for retirement allowance, the overtime work allowance before the standby order cannot be included in the average wage when calculating retirement allowance, in the case where the wage provision provides that the overtime work allowance shall be paid in full during the waiting period according to the retirement allowance regulations

[1] Article 19(1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997), Article 2(1) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997) / [2] Article 19(1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997), Articles 2(1) and 5 of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15320 of March 27, 1997) / [3] Article 19(1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997), Article 2(1) of the former Enforcement Decree of the Labor Standards Act (amended by Presidential Decree No. 15309 of March 13, 199)

[1] Supreme Court Decision 92Da20309 delivered on April 12, 1994 (Gong1994Sang, 1409) / [2] Supreme Court Decision 98Da49357 delivered on November 12, 1999 (Gong199Ha, 2480) Supreme Court Decision 200Da18714 delivered on December 27, 2002 (Gong2003Sang, 491)

Plaintiff et al.

Large-sized High-Tech Fisheries Cooperatives (Law Firm Samduk, Attorneys Song-il et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2000Na5657 delivered on January 17, 2001

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

Article 19(1) of the former Enforcement Decree of the Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997; hereinafter the same) provides an exception to the calculation of average wages under the main sentence of Article 19(1) of the former Labor Standards Act (amended by Presidential Decree No. 15320, Mar. 27, 1997; hereinafter the same shall apply). In light of the above provision, where a worker retires before he/she retires from his/her office at the retirement age, the period of standby order does not fall under any of the periods stipulated in Article 2(1) of the former Enforcement Decree of the Labor Standards Act. Thus, the number of days and the amount of wages received during the period cannot be excluded from the basis of the calculation of average wages (see Supreme Court Decision 92Da20309, Apr. 12, 1994; 92Da20309, Apr. 12, 1994).

In light of the adopted evidence, the lower court acknowledged that the Defendant Union’s payment of overtime allowances at a certain rate of basic pay when the employee works outside the working hours set forth in the service regulations. On April 1, 1996, the Plaintiffs issued retirement age from the Defendant association on September 30, 1996, and did not receive overtime work allowances at all due to the Defendant association’s failure to pay overtime work hours until his retirement age. Article 8(4) of the former Wage Regulations applicable to the instant case stipulates that the payment of overtime work allowances during the waiting period set forth in the retirement age shall be made in full. Accordingly, the lower court determined that the Plaintiffs’ payment of overtime work allowances at the time set out in the retirement age set out in the preceding three months should not be made based on the average wages paid to the employees who do not work outside the retirement age set in the preceding three months, and that the Plaintiffs’ payment of overtime work allowances at the time set in the retirement age set in the preceding three months cannot be made based solely on the circumstances that the Plaintiffs were not paid during the retirement age set in the preceding three months.

In light of the above legal principles and the records, the recognition and judgment of the court below is just, and there is no error of misconception of facts or incomplete hearing due to the violation of the rules of evidence.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)