Plaintiff 1 and four others (Law Firm Shin, Attorneys Dug-young et al., Counsel for the plaintiff-appellant)

○○ Transportation Limited Partnership and one other (Law Firm LLC, Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

November 19, 2015

Suwon District Court Decision 2012 Ghana15762 Decided February 7, 2014

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked:

Defendant ○○○ Limited Partnership Company shall pay to Plaintiff 1 2,093, KRW 2,081,093, KRW 2,188,853, and KRW 2,365,344 to Plaintiff 4, KRW 1,710,170, and KRW 20% per annum from January 11, 201 to December 24, 2015; and KRW 20% per annum from the following day to the date of full payment.

2. The plaintiffs' appeals against the defendant 2 and the remaining appeals against the defendant 00 transport limited partnership company are all dismissed.

3. The total cost of the lawsuit between the plaintiffs and the defendant ○ Transport Limited Partnership is borne by the defendant ○○ Transport Limited Partnership Company, and the appeal cost between the plaintiffs and the defendant 2 is borne by the plaintiffs.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to Plaintiff 1 2,081,093 won to Plaintiff 2,081,093 won to Plaintiff 3, 2,188,853 won to Plaintiff 4, 2,365,34 won to Plaintiff 5, 1,710,170 won to Plaintiff 5, and 5% per annum from January 11, 201 to the date of delivery of a duplicate of the complaint of this case, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. Defendant ○○ Transport Limited Partnership (hereinafter “Defendant Company”) is a company running taxi transport business, etc., and Defendant 2 is a representative employee of Defendant Company as a general partner of the Defendant Company, and the Plaintiffs were employed by the Defendant Company as a taxi engineer, and served as a day-off system from July 1, 2010 to December 31, 2010.

B. The rules of employment of the Defendant Company, which was enforced and applied since July 1, 2007 (hereinafter “previous rules of employment”), prescribed contractual work hours as eight hours per day, forty hours per week, and twenty-nine hours per month (one-third day per month, per day, per day).

C. However, since July 1, 2010, Article 6(5) of the Minimum Wage Act enters into force, the Defendant Company was no longer able to include the wages calculated based on the output, such as excess earnings, in the wage, which is the basis for calculating the minimum wage for its employees, as well as the wage calculated based on the output, other than the taxi commission, on July 29, 2010, even though the actual working hours of the employees were not changed (hereinafter “the rules of employment with the first revised rules”), and the contractual working hours were set as six hours per day, twenty hours per day, eight-four hours per month, and seven hours per day, and eight-two hours per month, in the case of the two major workers with the first revised rules of employment, respectively.

D. On October 27, 2010, Defendant Company revised the rules of employment again (hereinafter “the rules of employment with the second revised rules”), and set contractual work hours as 4 hours a day in the case of two-party workers with the second fixed working hours per day, 116 hours a day, 40 minutes a day in the case of a full-time employee with the first fixed working hours, 115 hours a day in the case of a full-time employee with the second fixed working hours.

E. All the rules of employment with the first revised rules and the second revised rules set the enforcement date on July 1, 2010.

F. The previous rules of employment, the first revised rules of employment, and the second revised rules of employment stipulate that “wages shall be closed as of the end of each month and shall be paid from the fifth day of the following month, counting from the first day of each month.”

G. Meanwhile, the minimum wage in 2010 (from January 1, 2010 to December 31, 2010) determined and announced by the Minister of Labor under the Minimum Wage Act is KRW 4,110 per hour.

【Ground of recognition】 The fact that there has been no dispute, entry in the evidence Nos. 1 through 3, the purport of whole pleading

2. The parties' assertion

A. The plaintiffs' assertion

The Rules of Employment I and II amended to reduce contractual work hours, even though there is no actual change of work hours, is invalid as it aims at avoiding the Minimum Wage Act, which is a mandatory provision. Even so, even so, the Rules of Employment I and II amended to the disadvantage of workers, which is null and void as it lacks the collective consent of workers. Therefore, the Plaintiffs’ contractual work hours are the same as the amount below the minimum wage per Plaintiff’s attached Table 1 if calculating the amount below the minimum wage amount from July 201 to December 2010 based on the previous Rules of Employment, based on which the Plaintiffs’ contractual work hours were calculated to be less than the minimum wage amount per Plaintiff’s attached Table 1. Thus, the Plaintiffs jointly seek payment against Defendant 2, the general partner of Defendant Company and Defendant Company.

B. The defendants' assertion

The Rules of Employment 1 and 2 amended cannot be deemed to be contrary to the Minimum Wage Act or disadvantageous amendments to workers. Even if the Rules of Employment 1 and 2 were to be disadvantageously modified, the Rules of Employment 1 and 2 were valid, and the Defendant Company paid to the Plaintiffs the wages exceeding the minimum wage from July 2010 to December 2010 according to the contractual work hours prescribed by the Rules of Employment 201.

3. Determination as to the claim against the defendant company

A. The plaintiffs' contractual work hours

We examine the validity of the rules of employment of the first and second revision that reduces contractual work hours.

Article 32(1) of the Constitution provides, “The State shall endeavor to promote workers’ employment and ensure appropriate wages through social and economic means, and shall implement the minimum wage system under the conditions as prescribed by the Act.” Accordingly, the Minimum Wage Act provides for matters concerning the minimum wage of workers to contribute to the sound development of the national economy by guaranteeing workers’ minimum wage level by guaranteeing workers’ minimum wage level and improving the quality of labor force, and Article 6(3) of the same Act provides for matters concerning the minimum wage of workers. In this case, the invalidated part of the labor contract between the workers and employers subject to the minimum wage shall be deemed null and void, and the same shall be deemed to have been paid the same wage as the minimum wage under this Act. In particular, the legislative purport of Article 6(5) of the Minimum Wage Act provides, “The scope of wages included in the minimum wage of workers engaged in taxi transport business shall be determined by Presidential Decree, excluding the wage calculated on the basis of output.” This is that it is difficult for workers to secure the basic amount of taxi commission of more than the minimum wage rate of their own employees to transport earnings.”

However, according to the above facts, since July 1, 2010, Article 6(5) of the Minimum Wage Act enters into force, the Defendant Company cannot include wages calculated on the basis of production, such as excess earnings, on the wage, which serves as the basis for calculating the minimum wage for its employees, other than taxi commissions. In order to avoid the amount of fixed wages paid to its employees below the minimum wage under the Minimum Wage Act, the Defendant Company reduced contractual work hours according to two times through amendments to the Rules of Employment, even though the actual working hours of the employees were not changed, and accordingly, the fixed working hours were reduced by 16 hours in the previous contractual work hours and 115 hours in the case of the first half of the first half of the total work hours in the case of the second half of the total work hours, and even if the first and second amendments were to be made in accordance with the purpose of the amendment of the Minimum Wage Act, the portion on contractual work hours in the first and second amendments, which were paid to its employees, was determined to be invalid for a short period of less than the minimum wage under the Minimum Wage Act.

The Defendant Company asserts to the effect that the wage, which is the basis for calculating the minimum wage under Article 6(5) of the Minimum Wage Act, cannot be included in the wage calculated on the basis of output, such as excess earnings except taxi commissions, should be excluded from the working hours to obtain excess earnings, and that the rules of employment revision of the Rules 1 and 2, which reduces contractual work hours, cannot be deemed as going against the Minimum Wage Act.

However, even if the wage, which serves as the basis for calculating the minimum wage under Article 6(5) of the Minimum Wage Act, was unable to include the amount of wages calculated on the basis of output, such as excess earnings, excluding taxi commissions, as well as the amount of excess earnings, the excess earnings still have the nature of taxi drivers’ wages, and thus, taxi drivers cannot be deemed to exclude the operating hours to acquire excess earnings from the working hours on a different premise. Therefore, the Defendant Company’s aforementioned assertion on a different premise is without merit.

Therefore, the contractual work hours to be applied to the plaintiffs in order to calculate the minimum wage shall be 209 hours per month prescribed by the previous rules of employment (in the case of an employee on day-day basis, the base of 13 full-time hours per month).

(b) Minimum wage amount below the minimum wage;

Comprehensively taking account of the purport of the entire arguments in Gap evidence Nos. 4, 5, and 6, the minimum wage amount from July 2010 to December 2010 of the plaintiffs on the basis of 209 hours per month (in the case of an e-day worker, the base day of the 13th day of each month) and the wage included in the scope of the minimum wage out of the paid wage amount shall be as stated in the corresponding column in attached Table 2 through 7, and it shall be the same as stated in the corresponding column in attached Table 1 through 7 if the minimum wage amount is calculated based thereon.

C. Sub-committee

Therefore, Defendant Company is obligated to pay Plaintiff 1 2,081,093 won, Plaintiff 2,188,853 won, Plaintiff 4’s 2,365,344 won, Plaintiff 5’s 1,710,170 won, and damages for delay at a rate of 20% per annum under the Civil Act from January 11, 2011 to December 24, 2015, which is the date of the ruling of the first instance where it is deemed reasonable for the Defendant Company to dispute over the existence of the obligation and the scope of the obligation.

4. Determination as to the claim against Defendant 2

The plaintiffs asserted that as defendant 2 is the general partner of the defendant company, they are jointly and severally liable for payment obligations below the above minimum wage amount and damages for delay.

However, according to Articles 269 and 212(1) of the Commercial Act, if the property of a limited partnership company is not sufficient to fully pay the debt of the limited partnership company with the property of the limited partnership company, or if a compulsory execution against the property of the limited partnership company is not effective, the general partner with unlimited liability shall be jointly and severally liable to pay the limited partnership company, i.e., if the compulsory execution against the property of the limited partnership company is not effective, and there is no assertion or proof as to the fact that the defendant company's property is not able to fully pay the above minimum wage amount and its delay damages, or compulsory execution against the defendant company's property

5. Conclusion

Therefore, the plaintiffs' claims against the defendant company are accepted within the above scope of recognition, and the remaining claims against the defendant company and claims against the defendant company against the defendant company are dismissed, without merit. Since part of the judgment of the court of first instance against the plaintiff which has partially different conclusions is unfair, they are revoked, and the above recognition fee is ordered to be paid to each defendant company. Since the remaining parts of the judgment of the court of first instance are legitimate, the plaintiffs' appeals against the defendant company and the remaining appeals against the defendant company against the defendant company are dismissed. It is so decided as per Disposition by the assent of all.

[Attachment Omission]

Judge Lee Young-young (Presiding Judge)