Plaintiff (Counterclaim Defendant) 1 and 3 others

Plaintiff 1 and one other

Plaintiff (Counterclaim Defendant) 1 and one other (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Han River Passenger Co., Ltd. (Law Firm 002, Attorney Yellow-in, Counsel for the defendant-appellant)

June 12, 2014

1. The Defendant (Counterclaim Plaintiff)

A. 8,174,348 won on Plaintiff (Counterclaim Defendant) 1;

B. 14,456,760 won to Plaintiff (Counterclaim Defendant) 2;

C. 14,560,270 won to Plaintiff (Counterclaim Defendant) 3;

D. 14,224,939 won to Plaintiff (Counterclaim Defendant) 4;

E. 7,478,485 won to Plaintiff 5;

F. 16,357,589 won against Plaintiff 6;

G. 13,458,067 won to Plaintiff (Counterclaim Defendant) 7;

H. Plaintiff (Counterclaim Defendant) KRW 15,950,031

In addition, 6% per annum from September 1, 2012 to October 23, 2014 with respect to each of the above amounts, and 20% per annum from the next day to the day of full payment.

2. The plaintiff (Counterclaim defendant) and the plaintiffs' remaining main claim and the defendant (Counterclaim plaintiff)'s counterclaim are dismissed, respectively.

3. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the Plaintiffs, while the remainder is assessed against the Defendant (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 1,108,751 won, 18,723,718 won to Plaintiff 2, 18,759,048 won, 17,879,972 won to Plaintiff 4, 17,979,972 won to Plaintiff 5, and 10,672,194 won to Plaintiff 6, 22,296,746 won to Plaintiff 7, and 17,626,492 won to Plaintiff 7, and 20,346,154 won to Plaintiff 8, and each of the above amounts shall be paid at the rate of 20% per annum from the day following the delivery of a duplicate of the complaint of this case to the day of full payment.

Counterclaim: Plaintiff 1,113,710 won, Plaintiff 2, Plaintiff 3, Plaintiff 4, Plaintiff 85,400 won, Plaintiff 7, Plaintiff 7, Plaintiff 55,943 won, Plaintiff 8, and each of the above amounts are paid 20% interest per annum from the day following the delivery of a duplicate of the counterclaim to the day of full payment.

1. Basic facts

A. Status of the parties

The defendant is a company aimed at the automobile transport service, etc., and the plaintiff 5 was working for the defendant company from May 15, 201 to May 14, 2012, and the rest of the plaintiffs are currently serving as the defendant's bus driver.

(b) Details of collective agreements, wages agreements, etc.;

The Defendant entered into a collective agreement, wage agreement, etc. applicable to the Plaintiffs with the ○○ Passenger Branch of the National Automobile Trade Union Federation of Incheon (hereinafter referred to as the “Electronic Labor Union ○○○ Branch”), and the major contents of the instant case from 2009 to 2012 are as follows.

The wage agreement for 209 table included in the main sentence : From July 1, 2009 to June 30, 2010 - the total monthly amount of working hours of workers on board shall be determined as 13 days per month, 5,200 won per month, and the total monthly payment shall be made once a month in accordance with the annexed calculation table and examples. The monthly wage shall include the amount including all the legal allowances for the consecutive service excluding the non-accident and continuous service allowances, and the number of working hours of workers on board shall be reduced or exceeded 00 per day without calculating the number of working hours per day to 0: 00 hours per day, 17 hours per day per day x 5 hours per day (excluding recess hours) - The company shall pay allowances for continuous service - the number of working hours exceeding 10 percent per day per day per day per five years per day per day, and the company shall pay allowances for more than 10 days per day per day per day per day per five years per day per day per day.

The period of implementation of a collective agreement of 2010 or more (the 30th day of June 2010): The company shall calculate the number of workers on board on July 1, 2010 to June 30, 201 - the payment rate of continuous service allowances for members on the preceding month shall be determined by the labor-management subcommittee. - The company shall pay bonuses to its members on the basis of the wage agreement of 20 years or more (the 20th day of December 24, 2010) - the period of implementation of the employment contract of 10 or more days on June 30: The total number of workers on board shall be 26 days per month, the total amount of monthly payment 】 1,465,470 won per annum, and the company shall calculate the number of workers on board the 5th day or more per annum working hours per month in consideration of the characteristics of the employment contract of 20 or more (the total number of workers on board the 10-day working hours per month and the wage reduction per month.

- The period of execution of the Wage Agreement of 2011 contained in the main sentence (as of August 19, 201): From July 1, 2011 to June 30, 2012, the wages shall be calculated on the basis of 19 hours a day based on the comprehensive wage system - The five days a week shall be 9.5 hours a day, including 8 hours of basic work and 1.5 hours of overtime work. - Drivers' wages shall be calculated on the basis of the monthly basic wage system, and the number of working days shall apply in accordance with the wage table calculated by the inclusive wage calculation method - bonuses shall be paid 3,468,90 won per annum to the third grade (at least four years): The number of workers who have worked for less than 13 days a day (at least 26 days) - No interim retirees shall be paid for consecutive service year - No person who refuses to work for more than 10 years a day or more than 10 years a day before his/her continuous service year (at least 10 years a day): No person who has been paid an interim retirement.

The wage system, including all allowances that may arise from the operation of a wide bus, shall be the inclusive wage system on July 1, 2012 or June 30, 2013, and the wage classification of those who have not been paid for at least 20 years on the basis of the 2012 wage agreement (as of August 30, 2012): The number of those who have not been paid for continuous service for at least 19 hours a day shall be 9.5 hours a week; the number of those who have not been paid for consecutive service for at least 2 years a week; the number of those who have not been paid for at least 2 years a month-long working hours per month; the number of those who have not been paid for less than 3 years-long working hours per month; the number of those who have not been paid for less than 3 years-long working hours per month; the number of those who have not been paid for less than 6,063.20 won per month; the total number of those who have been employed for less than 20 years-day;

[Ground of recognition] Facts without dispute, Gap 1 evidence (including paper numbers; hereinafter the same shall apply), Eul 3 to 5 evidence, the purport of the whole pleadings

2. Determination as to the claim on the principal lawsuit

A. Determination on the grounds for the claim

1) Parties’ assertion

A) The plaintiff's assertion

The Defendant calculated the hourly ordinary wage on the basis of only the basic salary, excluding bonuses, continuous service allowances, good faith allowances, and leave allowances, when paying overtime work allowances, night work allowances, weekly work allowances, holiday work allowances, annual work allowances, annual work allowances, and holiday allowances (hereinafter collectively referred to as the “instant statutory allowances”), and calculated the hourly ordinary wage on the basis of only the basic salary, excluding bonuses, continuous service allowances, good faith allowances, and leave allowances. As such, the Defendant included the bonus, continuous service allowances, good faith allowances, and leave allowances in ordinary wages, and calculated the hourly ordinary wage and paid the instant statutory allowances to the Plaintiffs.

Therefore, the Defendant is obligated to pay the amount stated in the purport of the claim to the Plaintiffs, which is the difference between the amount of statutory allowances of this case, which was determined based on ordinary wages, including bonuses, continuous service allowances, good faith allowances, and leave allowances, paid to the Plaintiffs from September 2009 to August 2012, minus the amount of the fixed legal allowances.

B) The defendant's assertion

(1) This safety defense

The lawsuit by Plaintiffs 1, 3, and 7 is unlawful because it conflicts with res judicata.

(2) Comprehensive wage contract

Due to the characteristics of bus transportation business, the Defendant has to naturally work overtime work, night work, and holiday work. Thus, in advance, the Defendant agreed with workers on overtime work, night work, and holiday work hours, and paid wages by the comprehensive wage system that pays the sum of wages and various allowances regardless of actual working hours as a monthly wage. Such comprehensive wage system also stated in a collective agreement, wage agreement, etc., and in light of the amount of wages paid to the Plaintiffs, the Defendant’s payment of wages by the comprehensive wage system is no more unfavorable than the standard prescribed in the Labor Standards Act. Therefore, the Defendant’s payment method of wages under the comprehensive wage system is valid. Therefore, since the Defendant’s payment of wages to the Plaintiffs includes the proposal allowance under the Labor Standards Act, the Defendant

(3) Whether ordinary wages are ordinary wages

Bonuses, good faith allowances, continuous service allowances, and leave allowances paid by the defendant to the plaintiffs are different according to the conditions of continuous service, full service, etc., and thus, they are not included in ordinary wages due to lack of fixedness.

2) Determination

A) Determination on this safety defense

In light of the following facts: (a) Plaintiff 1, 3, and 7 filed a lawsuit against the Defendant on March 23, 201 against the Incheon District Court No. 201Da65962 (hereinafter “pre-trial”); (b) the subject matter of the lawsuit is “A claim for allowance for weekly holiday work on the ground that the education fee or weekly holiday work is not granted; (c) the claim for an unpaid holiday allowance from May 2008 to October 201; and (d) the claimant for the unpaid holiday allowance from February 3, 201. The appellate court of the instant case rejected Plaintiff 1’s KRW 358,768 (i.e., educational expenses KRW 294,40 + KRW 64,368; and (d) KRW 264,474,4344,47,375,247; and (e) the Defendant’s appeal against Plaintiff 1’s total amount of KRW 201,364,475,27.37

Therefore, there is no identical part between the subject matter of the lawsuit and the subject matter of the lawsuit in this case, and thus, it does not conflict with the res judicata. The defendant's defense of principal safety is without merit.

B) Whether the inclusive wage system is applicable

(1) In principle, an employer’s conclusion of an employment contract ought to be determined on the basis of the determination of basic wages and aggregate payment of various allowances based on such determination (see, e.g., Supreme Court Decision 96Da24699, Mar. 24, 1998). However, even if an employment contract or collective agreement was concluded based on the so-called comprehensive wage system with the determination of the aggregate of various allowances as monthly wage or daily wage without calculating the basic wages, and the determination of the basic wage as wages and the payment of a certain amount as various allowances, it is valid unless it is disadvantageous to employees, such as working conditions that do not meet the standard prescribed by the Labor Standards Act. However, whether an employment contract on the comprehensive wage system was established shall be determined by comprehensively and comprehensively taking into account various circumstances, such as working hours, form and nature of work, unit of wage calculation, contents of collective agreement and employment rules, and actual condition of work place, etc. In an individual case, even if it is anticipated that the agreement on extension, night work, and holiday work is naturally anticipated, it does not constitute a collective agreement 2010.

(2) As seen in the foregoing facts, the wage agreement in 2009 and 2010 states that "monthly wages include all kinds of statutory allowances except accident-free allowances and continuous service allowances. It is not calculated on a daily basis, taking into account the characteristics of route buses, such as incorrect working hours, seasonal factors, etc., and it is not calculated on an average of 3 hours and 25 minutes a day (excluding recess hours) and shall be calculated on an average of 17 hours a day and 17 hours a day (excluding recess hours) as a whole." The deposit agreement in 2011 states that "paid wages shall be calculated on a daily basis and paid 19 hours a day according to the universal wage system." The wage agreement in 2012 states that "The daily wage system is difficult to accurately calculate metropolitan bus operation, considering the characteristics of the route bus operation system, the daily wage system is recognized as a comprehensive wage provision including all hours that may arise from the day operation, and it is recognized as a comprehensive wage provision including the overall payment of hours per day."

However, as seen earlier in the facts, collective agreements and wage agreements from 2009 to 2012 clearly classify wages into basic pay and various allowances. The concept of hourly wage starts with the starting point and calculates the amount of basic pay and various allowances based on the basic pay, respectively. The number of working hours per day is 13 days per month, 17 hours per day, 5 hours per day, and night work (209, 2010), or 19 hours per day and 3 hours per day overtime work (201, 2012). Thus, if the Defendant paid wages to the Plaintiffs in such a manner, it cannot be acknowledged that the Defendant’s comprehensive wage payment system does not constitute the Defendant’s comprehensive wage payment system. Thus, there is no reason to acknowledge that the Defendant’s comprehensive wage payment system does not constitute the Defendant’s comprehensive wage payment system.

C) Whether bonuses, continuous service allowances, good faith allowances, and leave allowances constitute ordinary wages

(1) Legal principles concerning ordinary wages

Article 6(1) of the Enforcement Decree of the Labor Standards Act defines ordinary wages as “the hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract amount to be paid to workers for a prescribed or total work on a regular and uniform basis.”

Whether a certain wage falls under ordinary wages shall be determined based on the objective nature of the wage, which is the money and valuables paid to an employee as a consideration for a contractual work, and shall not be determined by the name of the wage or the form of the period of payment, etc. The term “regular” in this context means that the wage ought to be continuously paid at a certain interval, and the term “daily rate” includes not only the amount paid to all workers, but also the amount paid to all workers who reach a certain condition or standard.

In this context, “specified condition” means a fixed condition in light of the concept of ordinary wage to calculate a fixed and average wage. Even if a collective agreement or rules of employment provides for grounds for restrictions on the payment of a specific wage against a person temporarily laid off or reinstated or a person to be disciplined, it is merely a restriction on the payment of the wage in consideration of the individual characteristics of the relevant worker, and thus, it does not deny the daily rate of the payment of the wage to a worker who maintains a normal labor relationship on the ground of such circumstance.

Finally, the term “fixed wage” refers to “the nature, regardless of its achievements, achievements, and other additional conditions, which naturally becomes final and conclusive for the work provided by an employee.” The term “fixed wage” refers to the minimum wage that an employee who has worked on a voluntary day, regardless of the name of the wage, would be paid in return for his/her daily work even if he/she retires on the next day.” Thus, whether an employee would be paid as a matter of course, regardless of the additional conditions, if he/she provides contractual work on a voluntary day, or the amount determined in advance is fixed. This refers to the condition that the implementation of the work is not yet determined at the time of providing his/her work on the voluntary day, such as extension, night, or holiday. It is difficult to determine that an employee has the nature of the work provided at least 20 days prior to the said decision, even if he/she had no fixed work at the said time. However, it is difficult to determine that the employee has the nature of the work provided at least 9 days prior to the said decision.”

(2) Whether bonuses constitute ordinary wages

Whether bonuses constitute ordinary wages or not are different according to the provisions of collective agreements, wage agreements, and written agreements (hereinafter referred to as "group agreements, etc.") in each corresponding year, so it will be examined in each corresponding year.

(A) The period during which the collective agreement, etc. of 209 and 2010 applies (from September 2009 to June 201)

The wage agreement in 2009 provides that "the bonus shall be paid 600% of the basic salary on the date of payment of wages each month by dividing only to city bus drivers who have been employed for at least one year (regular workers under salary grade system)." The collective agreement in 2010 provides that "the company shall pay bonus to its members, and the rate and method of payment shall be governed by the wage agreement." The wage agreement in 2010 provides that "the bonus shall be paid 3,310,000 won for those who have been employed for at least one year in the year of continuous service (long-term continuous service under salary grade system) in six installments each year." In fact, the defendant shall be deemed to have paid a certain amount of bonus each month to the plaintiffs regardless of whether it has been employed for only one year or more, and it shall be deemed to have been paid for the period of 20 years or more, regardless of whether it has been employed or not, and it shall be included in the fixed period of 10 years or less, and thus it shall be included in the aforementioned collective agreement.

(B) The period during which the collective agreement, etc. of 201 and 2012 applies (from June 2011 to August 2012)

The wage agreement in 201 provides that " bonuses shall be paid 3,468,900 won to salary grade 3 (not less than four years) in six installments per annum. Workers who work for less than 13 days (26 days) per day shall not be paid bonuses, and interim retirees shall not be paid bonuses." The wage agreement in 2012 provides that " bonuses shall be paid 2,00,000 won to salary grade 2 (not less than two years but less than three years), 3,677,034 won to salary grade 3 (not less than three years), and 3,67,034 won shall be paid in installments for a number of months. Bonuses shall not be paid for a period of not less than 10 days in total, interim retirees, or persons who do not work only without justifiable reasons, and bonuses shall not be deemed ordinary wages for a period of less than 2 years if they were paid for a fixed period of not less than 10 years after the retirement, even if they were paid for a two-year period of work."

(3) Whether the good faith allowance constitutes ordinary wages

Where a certain amount of wages is calculated on a daily basis according to the number of working days by prescribing to pay a certain amount of wages for each working day, the amount is different depending on the actual number of working days. However, if a worker provides contractual work on a voluntary date, the certain amount of wages is determined to be paid. As such, such wages constitute fixed wages (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

In this case, when considering the overall purport of arguments in evidence Nos. 2, 3 and 15 and Eul evidence Nos. 1, the defendant can recognize the fact that the defendant paid the plaintiffs an amount calculated as 5,000 won per working day as good faith allowance every month regardless of whether he/she has worked for the period from September 2009 to August 2012. According to the above facts, as seen in the above facts, the wage agreement in 2009, 2010, and the agreement stipulate that the 13-day good faith allowance shall be paid in 201, and the wage agreement in 201 provides that the good faith allowance shall be paid in 5,000 won per day to the daily worker (if it is impossible to operate due to a spare vehicle, etc.). The wage agreement in 2012 provides that the defendant's duty of care shall not be paid in good faith by calculating the number of working days per day and 500 days per day per day per day per day per day per day per day per day per day per day per day per day, per day per day per day per day per day per day per day per day."

(4) Whether the continuous service allowance falls under ordinary wages

(A) Legal principles

Since the continuous service period is closely related to an employee’s advanced training, it can be seen as a “specified condition or standard” related to the assessment of the value of the prescribed working hours. Moreover, the continuous service period is not an uncertain condition at the time of providing an employee with overtime, night, or holiday work on a voluntary basis, but its implementation is determined at the time of voluntary extension, night, or holiday work. As such, it is recognized that an employee who has reached a certain continuous service period is able to finally receive wages that are linked to the continuous service period regardless of the fulfillment of other additional conditions if he/she provides his/her work on voluntary basis. Therefore, the circumstance that the payment of wages or the amount of payment is linked to the continuous service period does not obstruct the conclusion that the wage belongs to ordinary wages. However, the wage that is paid only for a certain number of working days is paid only when the additional conditions that meet a certain number of working days are fulfilled in addition to the provision of contractual work, and whether such conditions are fulfilled can not be determined at the time of voluntary extension, night, or holiday (see Supreme Court en banc Decision 2019Do293198.).

(B) In the instant case:

(1) Provisions of the wage agreement

In the wage agreement in 209 and 2010, "any person who has served for at least one year and has served for less than one year but less than five years on a monthly basis", "5,000 won x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years before and after two years of continuous service x the number of years of continuous service x the number of years of continuous service x the number of years before five years of continuous service x the number of years x the number of years preceding."

(2) The period during which the collective agreement, etc. of 209, 2010 applies (from September 2009 to June 201)

In addition to the whole purport of pleadings in Gap evidence 2, 3, and Eul evidence 1, it can be acknowledged that the defendant paid 15,000 won to the plaintiffs for continuous service each month according to the number of years of service as remuneration for continuous service, regardless of whether the defendant has worked for at least 10 days a month from September 2009 to June 201. According to the above facts, as seen in the above facts, the above facts stipulate that the continuous service allowance shall be paid at the time of work for at least 10 days a month in the wage agreement of 2009 and 2010, but it can be deemed that the defendant and the plaintiffs agreed to pay the continuous service allowance according to the number of years of service regardless of whether it has worked for at least 10 days a month, or that there has been such payment practices. Thus, the continuous service allowance paid during the above period constitutes ordinary wages as wages regularly, uniformly, and regularly paid.

(3) The period during which the collective agreement, etc. of the year 201, 2012 applies (from July 2011 to August 2012)

According to the above facts, in the case of a person who retired during the period to which the wage agreement was applied in 2011 and 2012, the continuous service allowance paid by the plaintiffs during the period to which the wage agreement was applied is a fixed wage that can be paid automatically and finally in return for the daily work even if the worker who worked on a voluntary day retires on the next day, even though he/she worked for part during the calculation period of the continuous service allowance in the case of a person who retired during the month to which the wage agreement was applied. Thus, the continuous service allowance paid by the plaintiffs during the period to which the collective agreement, etc. was applied in 2009 or 2012 cannot be deemed as ordinary wages.

(5) Whether leave fees constitute ordinary wages

The wage agreement in the year 2009, 2010 and 2011 provides that "only once a year shall be paid to the employees of April 1 of the relevant year, and the amount shall be KRW 100,000,000," and the wage agreement in the year 2012 provides that "less indicated in the wage table, etc. are separately paid in accordance with the relevant monthly payment standards," shall be based on the aforementioned facts, as seen earlier. According to the above facts, the wage agreement in the year 2009 through 2012 constitutes ordinary wages, which are regularly, uniformly, and fixedly paid.

(6) Sub-committee

Therefore, the bonuses and continuous service allowances received by the Plaintiffs from September 2009 to June 201, 201, and the ordinary wages, which are the basis for calculating the faithful allowances and leave allowances received by the Plaintiffs from September 2009 to August 2012, 209, should be included in the ordinary wages.

C) Calculation of hourly ordinary wages

(1) Method of calculating hourly ordinary wages

When calculating an hourly ordinary wage as a monthly wage, the amount shall be calculated by dividing that monthly ordinary wage by the standard number of hours for calculation of the monthly ordinary wage (which means the number of hours calculated by multiplying the average number of weeks per year by the standard number of hours for calculation of the weekly ordinary wage) (Article 6(2)4 of the Enforcement Decree of the Labor Standards Act). Thus, in order to calculate that hourly ordinary wage, the ordinary wage as a monthly wage must be first determined. However, in cases where an employee received a monthly wage or a monthly fixed allowance along with the basic rate of wages for agreed working hours exceeding the standard working hours under Article 50 of the Labor Standards Act, the fixed allowance paid in the form of the monthly wage or monthly ordinary wage shall not be deemed ordinary wage, and it is difficult to determine the ordinary wage because it includes wages for extension and night work under Article 56 of the Labor Standards Act, and in such cases, it is also difficult to determine the ordinary wage by calculating the hourly ordinary wage as a total number of hours worked per month or night work hours exceeding 10 months (see Supreme Court Decision 2010Da16197, supra.).

(2) Calculation of hourly ordinary wages concerning bonuses

As to this case, comprehensively taking account of the entire descriptions and arguments as to health care units, Gap evidence 1, Eul evidence 2, Eul evidence 1 through 3, the number of working days shall be determined on the basis of 209, collective agreements, etc. in 2010, and the basic wage shall be determined on the basis of 104 hours on the basis of 13th day of each month (=8 hours x 13 days), the daily working hours shall be determined as 17 hours, 5 hours, 4 hours overtime, 150% during the extended working hours, 20% of the Si wage for night work hours x 20% for the night work hours x 30% of the Si wage x 4 hours per month (=6 hours per week) x 4 hours per month average of 1-1 or 8-1 hours per month x 3 hours per month, according to the premium rate of 5 hours per month x 5 hours per month respectively.

Therefore, if bonuses paid from September 2009 to June 201 are included in the ordinary wage, the hourly ordinary wage should be added to the amount calculated by dividing the bonus paid each month during the above period by 340.26 hours per month, and the amount is as the bonus column for the calculation details of the ordinary wage by Plaintiff 1-2 to 8-2.

(3) Calculation of hourly ordinary wages for continuous service allowances

Where continuous service allowances are included in the ordinary wage, the hourly ordinary wage for continuous service allowances paid monthly during the above period shall be added to the amount calculated by dividing the amount of continuous service allowances paid monthly by 340.26 hours per month by the total working hours, and such amount shall be as the amount in the column of the Si salary among the continuous service allowances for the calculation details of the ordinary wage for each plaintiff by

(4) Calculation of hourly ordinary wages for good faith allowances

(A) From September 2009 to June 201, 201

The ordinary wage of an hourly wage shall be calculated by dividing 5,00 won per day paid during the aforesaid period by 23.5 hours (=8 hours + 7.5 hours + 8 hours + 8 hours + 7.7 hours + 8 hours) and 8 hours for night work as stated in the collective agreement, etc. in 209 and 2010. Thus, if the ordinary wage of an hourly ordinary wage is included in the ordinary wage, the ordinary wage of an hourly ordinary wage shall be calculated by dividing 5,00 won per day paid during the said period by 23.5 hours (=8 hours + 7.5 hours + 8 hours).

(B) From July 201 to August 2012

According to evidence evidence Nos. 1, 2, and 4, in the collective agreement, etc. in 2011 and 2012, the basic working hours per day are 16 hours (i.e., 8 hours x 2), 4.5 hours for the publication of overtime work (i.e., 1.5 hours x 1.5 hours x 2), and 1.5 hours for the publication of overtime work (i.e., 0., x 1 x 2). However, as requested by the plaintiffs, the basic working hours per day are 8 hours, 16.5 hours for the publication of overtime work (i.e. x 1.5 hours x 1.5), the extended night work hours are 26.5 hours in total (i.e., 4 hours x 0. x 5 hours), and the hourly ordinary wage is 5,000 won paid during the said period divided by 26.8 August 68, 198.

(5) Calculation of hourly ordinary wages in relation to the summer vacational leave expenses

(A) From September 2009 to June 201, 201

During the above period, it is reasonable to view the Plaintiffs’ total monthly working hours as 340.26 hours per month on the 13th day of every month. As seen earlier, according to the collective agreement, etc. during the above period, the Plaintiff agreed to pay KRW 100,000 per year according to the collective agreement, etc., so the wage per hour would be 24.49 won (=10,000 ± 12 ± 340.26).

(B) From July 201 to August 2012

Comprehensively taking account of the overall purport of statement and arguments as to Gap evidence 1 and Eul evidence 1 through 4, the number of working days shall be determined on the 26th day of each month. Basic pay shall be determined on the basis of 208 hours per month on the basis of service on the 26th day of each month (=8 hours x 26 days, including weekly holidays). The daily working hours shall be determined as 9.5 hours per day; the number of overtime hours shall be 1.5 hours per day; the number of overtime hours shall be determined as 1.5 hours per hour; the number of overtime allowances calculated by 150% per hour for the extended working hours shall be determined as 301.26 hours per month [208 hours per month x 26 days per month x 26 days) + the number of working hours per month multiplied by the average number of 208 hours per month x 34.76 hours per month x (including 365 hours ± 12.5 hours per month) x 15 hours per month.5 hours per month].

(6) Calculation of the instant statutory allowances to be paid additionally by the Defendant

The Plaintiffs’ weekly paid hours, overtime work, night work, holiday work, holiday work, annual paid hours, and holiday work hours are the same as the number of hours or days indicated in the Plaintiffs’ “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off work allowance,” “day-off allowance,” and “day-off work allowance” in attached Table 1-3 to the Plaintiff’s calculation of statutory allowances by the Plaintiff. Comprehensively taking account of no dispute between the parties concerned, the facts that the Defendant paid each relevant monthly amount as indicated in the “day-off work allowance, overtime work allowance, holiday work allowance, annual allowance, and holiday allowance, or the overall purport of pleadings as evidence No.

Therefore, the defendant, barring special circumstances, is obligated to pay the plaintiffs the amount calculated by multiplying the hourly ordinary wage of each of the following months by the number of the relevant monthly working hours or days indicated in the "day off duty allowance", "day off duty allowance", "day duty allowance", "day duty allowance", "day duty allowance", "day duty allowance", "day duty allowance", and "day off duty allowance", and the corresponding monthly working hours or days in the corresponding month.

If this is indicated by each individual, it is as follows:

Plaintiff 1 11,108,751 8,174,348 2,218,723,718 14,456,760 317,879,972 14,2224,939,939,9395 510,672, 778,478,4856 Plaintiff 6222,296,746, 357, 5897, 72, 194, 747, 478, 485, and 62,296, 746, 757, 7897, 717, 62626, 49258, 4678, 804, 3058, 3054, 1964, 3057, 1964, 1975

B. Judgment on the defendant's violation of the principle of good faith

1) The defendant's assertion

Although the Defendant paid wages on the premise that bonuses, continuous service allowances, good faith allowances, and leave allowances are not included in ordinary wages through collective agreements with the Plaintiffs, the Plaintiffs’ claim for payment of unpaid payment out of the statutory allowances of this case is contrary to the labor-management agreement by including bonuses, continuous service allowances, good faith allowances, and leave allowances in ordinary wages. Since the Defendant’s excessive financial burden causes serious managerial difficulties, it cannot be permitted as it violates the principle of good faith.

2) Legal principles

The principle of trust and good faith refers to an abstract norm that a party to a legal relationship should not exercise a right or perform a duty in violation of equity or trust by taking into account the other party’s interest. In order to deny the exercise of right on the ground that it violates the principle of trust and good faith, it should have been given to the other party or objectively deemed that the other party has good faith, and the other party’s exercise of right against the other party’s good faith should reach an extent that is not acceptable in light of the concept of justice (see Supreme Court Decisions 91Da3802, Dec. 10, 1991; 2003Da18401, May 26, 2006, etc.).

If the contents of a labor-management agreement, such as a collective agreement, are null and void in violation of the Labor Standards Act’s compulsory provisions, the assertion on the invalidation of the agreement would result in excluding the claim on the ground that it is an exercise of rights contrary to the good faith principle. Therefore, such assertion cannot be deemed as a violation of the good faith principle. However, the application of the good faith principle is not excluded without exception to the assertion on the invalidation of the labor-management agreement, on the ground that the contents of the labor-management agreement violate the good faith principle. The assertion on the invalidity of the labor-management agreement cannot be permitted as it violates the good faith principle, only in exceptional circumstances where it is acceptable to accept the application of the good faith principle prior to the good faith principle despite the general requirements for applying the good faith principle as well as the compulsory nature of the Labor Standards Act (see, e.g., Supreme Court en banc Decision 2012Da8939

3) Determination

In light of the above legal principles, comprehensively taking account of the overall purport of arguments as to this case’s health class, Gap evidence No. 1, Eul evidence No. 1, Eul evidence No. 1, 2, 3, 18, 19, and 20, the defendant company concluded a collective agreement, etc. in 2009 and 2010, under the premise that bonuses do not constitute ordinary wages in determining the scope of wages to be included in ordinary wages, the defendant company excluded bonuses from ordinary wages. ② The defendant company and labor union set the rate of increase in basic wages, etc. and the amount of increase in various allowances on the basis of total wages during wage negotiations, ③ the fact that the defendant operated the defendant company by borrowing KRW 590,00,000 from Songdo bus Co., Ltd. in 203, and ④ the defendant’s payment of the CNG price, which is a bus fuel, constitutes grounds for 1,610,375,428 as of December 31, 2013.

However, the following circumstances, which can be acknowledged by comprehensively taking account of the purport of the entire pleadings, are as follows: ① (i) the Defendant recorded net income of KRW 53,192,576, and KRW 539,028,29,29, KRW 146; (ii) the number of drivers is approximately 146; (iii) the amount of bonus paid each year to one employee is 600% of the basic salary; (iv) the Defendant’s additional statutory allowance for the period of three years in the past, 2010, KRW 170,536,583, and KRW 53,192,576, and KRW 539,028, and KRW 293; and (iv) the Defendant’s application of the principle of good faith to the above legal allowances to the company cannot be seen as a violation of the principle of good faith, and thus, the Defendant’s application of the principle of good faith to the above legal allowances to the company is difficult.

3. Judgment on a counterclaim

A. The defendant's assertion

Although the collective agreement, etc. in 2009 through 2012 stipulates the fulfillment of a certain number of working days each month, including bonuses, good faith allowances, and continuous service allowances, the defendant has paid bonuses, good faith allowances, and continuous service allowances without relation under the premise that the comprehensive wage agreement is valid, even though the comprehensive wage agreement does not meet the requirements, even if the comprehensive wage agreement is null and void, it constitutes unjust enrichment because it constitutes a bonus that the defendant paid to the plaintiffs, good faith allowances, and continuous service allowances are deemed to have no legal grounds. As indicated below, the plaintiff 1,113,710 won, and the plaintiff 2, the plaintiff 3, the plaintiff 1,934,206 won, the plaintiff 4, the plaintiff 2, and the plaintiff 7, the plaintiff 2,55,943 won, and the plaintiff 506,80 won for unjust enrichment.

(Omission of List)

B. Determination

(i) bonus;

(A) the period of application, such as a collective agreement of 209, 2010, and 2011

The wage agreement in 209, the collective agreement in 2010, the wage agreement in 2010, and the wage agreement in 201 does not stipulate the fulfillment of a certain monthly working number of days each month, such as bonus payment requirements. Rather, the wage agreement in 201 stipulates that a worker who works for less than 13 days per hour shall work on a daily basis. The agreement in 2009 (No. 3-1), and the agreement in 2010 (No. 3-2), which are attached to the agreement in 2010 (No. 3-2), are difficult to interpret that the term "13-26 days" extended to the center of the table stated above. In fact, it is difficult to interpret that the defendant paid a certain amount of bonus to the plaintiffs regardless of whether the above plaintiffs were on a monthly basis, even though the above plaintiffs did not meet the requirements of the collective agreement in 209 and 201-201.

B) Application period of collective agreements, etc. in 2012

The fact that the wage agreement in 2012 provides that the bonus shall not be paid to a person absent from work or a person who does not work without any justifiable reason for at least 10 days in total. However, considering the overall purport of the statements and arguments in Gap 15, Eul 1, and 13, the defendant paid bonus to a person absent from work for less than 10 days in total for less than 2 months. In determining whether the number of working days is met, the defendant shall be deemed to have worked as a person absent from work for not more than 10 days in total and shall be deemed to have worked as a day of annual leave in order to determine whether the number of working days and shall be included in the number of working days. According to the above facts, the defendant and the labor union established an implied labor-management agreement between the defendant and the labor union, or established such payment practices, since the above plaintiffs' payment of bonus in the period of application of the collective agreement in 2012 received from the defendant, the defendant's assertion is without merit.

(ii) continuous service allowances;

In 209 and 2010, the wage agreement provides that a continuous service allowance shall be paid to a person who has worked continuously for at least one year in the wage agreement for at least ten days a month, and that a continuous service allowance shall not be paid to a person who has worked continuously for at least one year in the wage agreement for at least one year in 2011, and that an interim retirement shall not be paid a continuous service allowance in the wage agreement for 2012, and that a person who has worked continuously without good cause in the wage agreement for 2012 shall not be paid a continuous service allowance. In full view of the overall purport of the oral argument in the written evidence No. 13, the fact that the payment of continuous service allowance may be recognized even if the plaintiffs 1, 2, 3, 7, and 8 worked for less than 10 days a month. However, in light of the fact that the defendant paid continuous service allowance to the plaintiffs regardless of whether the comprehensive wage agreement was effective or not, it is difficult to view that the plaintiffs and the defendant's assertion that the defendant's payment of continuous continuous service allowance was not reasonable.

(iii) sincere allowances;

In light of the fact that the wage agreement in 2009, the wage agreement in 2010, and the agreement stipulate that the 13-day full attendance allowance shall be paid, but the wage agreement in 201 and 2012 did not stipulate full attendance requirements for the good faith allowance, and in fact, the Defendant paid the Plaintiffs an amount calculated as 5,000 won per working day as the good faith allowance from September to August 2012, 209, it can be deemed that there was an implied agreement or payment practice under which the Plaintiffs and the Defendant should pay the good faith allowance by calculating the number of working days according to the number of working days, regardless of whether they are on attendance between the Plaintiffs and the Defendant during the above period. Therefore, it is difficult to view that the good faith allowance received by the Plaintiffs from the Defendant constitutes a lack of legal grounds, and therefore, this part of the Defendant’s assertion is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1 8,174,348 won, 14,456,760 won, 14,560, 270 won to the plaintiff 3, 14,224,939 won to the plaintiff 4, 7,478,485 won to the plaintiff 5, 16,57,589 won to the plaintiff 6, 13,458,067 won to the plaintiff 7, and 15,950,031 won to the plaintiff 8, and damages for delay calculated from September 1, 2012 to October 23, 2014, which is the date the copy of the complaint of this case is served to the plaintiff 8,174,348 won, to the plaintiff 2, 14,560 won, and damages for delay calculated at the annual rate of 60% from the day after the day the defendant delivered the complaint of this case to October 23, 201.

Therefore, the plaintiffs' claims of the principal lawsuit are accepted within the above scope of recognition, and the remaining claims of the plaintiffs and the defendant's counterclaim are dismissed as they are without merit. It is so decided as per Disposition.

Judges Maximum number of judges