[1] In a case where it is difficult to determine the amount of monthly ordinary wages because the monthly wage of a worker includes the wage for paid holidays as stipulated in Article 55 of the Labor Standards Act, which cannot be seen as ordinary wages, whether the hourly ordinary wage can be calculated in a manner that the worker is deemed to have worked on paid holidays by aggregating the contractual work hours and then divide the monthly wage for paid holidays into total working hours (affirmative); and whether such legal principle equally applies to a case where the monthly wage includes the wage for paid holidays under the labor contract or rules of employment, etc. (affirmative) / Whether the aforementioned legal principle is equally applied to a case where the monthly wage includes the monthly wage for paid holidays under the labor contract or rules of employment (affirmative)

[2] In a case where the number of hours paid on Saturdays included in the total working hours when calculating the hourly ordinary wages of street cleaners Gap, etc., who are local governments, by dividing the number of total working hours from the monthly wage that includes the number of paid holidays, the case holding that the judgment below erred by misapprehending the legal principle in holding that the hours paid on Saturdays included in the total working hours should be deemed four hours under the rules of employment, but the hours paid on Saturdays included in the total working hours should be deemed four hours under the rules of employment

[1] If it is difficult to determine the amount of monthly ordinary wages because the monthly wage paid to a worker is included in the wages for paid holidays as stipulated in Article 55 of the Labor Standards Act, which cannot be deemed as ordinary wages, then the worker is deemed to have worked on such paid holidays and calculated the total working hours by adding them to the prescribed working hours and then dividing the monthly wage into the total working hours. This legal principle likewise applies to the monthly wage paid to a worker by which the wage for paid holidays is included in the wage paid in accordance with the labor contract or the rules of employment. Accordingly, the aforementioned calculation method includes the hours of paid holidays as defined in the Labor Standards Act, and the hours included in the total working hours are not limited to the hours paid in accordance with the law, such as the Labor Standards Act, and the hours determined to be paid in accordance with the labor contract or the rules of employment.

[2] In a case where the number of hours paid on Saturdays included in the number of total working hours when calculating the hourly ordinary wages of street cleaners Gap, etc., who are local governments, by dividing the number of paid holidays from the monthly wage included in the calculation of the number of total working hours, the case held that the judgment below erred by misapprehending the legal principles as to the hours paid on Sundays, since the labor contract concluded by the local government and Gap, etc., the daily working hours shall be eight hours, and Saturdays shall be defined as the "day of paid leave," and Sundays shall not be specified as the "day of paid leave," and it does not specify specifically the hours to be treated as wages or paid hours due to paid leave or paid holidays, but the "day of environmental US wages payment", which is the employment rules, set the hourly average wage rate, which serves as the basis for the calculation of the overtime hours of the street cleaners, and it shall be eight hours in Sundays and four hours in the case of paid hours other than the prescribed hours in the calculation of the total working hours.

[1] Article 55 of the Labor Standards Act, Article 6 of the Enforcement Decree of the Labor Standards Act / [2] Article 55 of the Labor Standards Act, Article 6 of the Enforcement Decree

[1] Supreme Court Decision 97Da28421 delivered on April 24, 1998 (Gong1998Sang, 1438)

Plaintiff 1 and 19 others (Law Firm Han, Attorneys Cho Jong-jin et al., Counsel for the plaintiff-appellant)

Iron-gun (Law Firm A&S, Attorneys Lee Dong-won et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Na2050216 decided April 5, 2019

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal by the plaintiffs and the defendant as to whether to recognize ordinary wages

Based on its stated reasoning, the lower court determined that the Defendant’s payment of the horses, allowances for good attendance, and expenses for physical training to street cleanerss under his/her jurisdiction is included in ordinary wages, while the expenses for a holiday for life saving are not included in ordinary wages.

Examining the record in light of the relevant legal principles, the lower court did not exhaust all necessary deliberations, as alleged in the grounds of appeal by the Plaintiffs and the Defendant, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on ordinary wages

2. As to the Defendant’s ground of appeal as to whether night work is recognized

The lower court, citing the first instance judgment, determined that the Defendant was obligated to pay night work allowances to the Plaintiffs who engaged in cleaning street.

Examining the record in light of the relevant legal principles, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on night work, contrary to what is alleged in the Defendant’

3. As to the plaintiffs' grounds of appeal on the standard number of ordinary wages calculation standard hours

A. In a case where it is difficult to determine the amount of monthly ordinary wages because the monthly wage paid to a worker is included in the paid holiday as stipulated in Article 55 of the Labor Standards Act, which cannot be seen as ordinary wages, the said monthly ordinary wage may be calculated by deeming the worker to have worked on such paid holiday and adding it to the contractual work hours and then dividing the monthly wage into the total working hours (see Supreme Court Decision 97Da28421, Apr. 24, 1998, etc.). This legal doctrine likewise applies to a case where the monthly wage paid to a worker is included in the paid holiday as stipulated in the labor contract or employment rules, etc. Accordingly, it is deemed that the worker has worked on a paid holiday as defined in such calculation method and includes the hours included in the total working hours as paid hours under the labor contract or employment rules, etc., as well as the hours determined to be treated as the paid hours under the labor contract or employment regulations, etc.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The labor contract between the Plaintiffs and the Defendant stipulates that the daily working hours shall be eight hours per day and shall be from a Saturday to a Friday. Saturdays is stipulated as “day of paid holiday”, and Sundays as “day of paid holiday”. However, there is no specific specification regarding the wage amount or the hours of paid holiday due to such paid holiday or paid holiday.

2) On the other hand, the Defendant’s rules of employment (based on the hourly ordinary wage that serves as the basis for the calculation of overtime work allowances for the street cleaners under his/her jurisdiction. However, in relation to the calculation method, the number of hours paid in addition to the contractual work hours is eight hours in the case of Sundays, and in the case of Saturdays, four hours respectively, and in the case of Saturdays, two hundred and twenty-six hours in the standard wage amount. The calculation is made by dividing the total work hours into two hundred and twenty-six hours in the standard wage amount.

C. Examining the foregoing factual basis in light of the aforementioned legal principles, when calculating the Plaintiffs’ hourly ordinary wage by the method of dividing the total working hours from the monthly wage that includes the Plaintiffs’ hourly ordinary wage by the number of paid holidays, the hours that are paid on Saturdays included in the total working hours shall be deemed four hours prescribed in the rules of employment (Supreme Court Decision 2006Da81523 Decided November 29, 2007, which was invoked by the original trial, shall be deemed to be four hours prescribed in the rules of employment (it is inappropriate to apply in this case as it differs from the instant case).

D. Nevertheless, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the calculation of hourly ordinary wages, on the premise that Saturdays’s paid leave hours are eight hours, and thereby adversely affecting the conclusion of the judgment, on the premise that Saturdays’s paid leave hours are eight hours. The Plaintiffs’ ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Kwon Soon-il (Presiding Justice)