[1] Standard for determining whether a worker satisfies the "fixedness" as a conceptual draft of ordinary wages, and whether the wage does not constitute a fixed wage solely on the ground that the collective agreement or rules of employment stipulate grounds for restrictions on payment of a specific wage against a leave of absence, a person reinstated, or a person subject to disciplinary action, etc. (negative)

[2] Whether holiday work paid on holiday work under Article 56 of the former Labor Standards Act includes work on holiday work as prescribed on holiday work under the collective agreement or rules of employment (affirmative), and the standard for determining whether holiday work was determined on holiday work

[3] In a case where Gap corporation, etc., engaged in passenger transport business as driver Eul et al. sought an additional allowance for holiday work for the part of 7 hours exceeding 8 hours in excess of 15 hours in excess of 15 hours in the daily work day on the premise that the work day exceeds 15 days in excess of 15 days in the month is a holiday, the case holding that the judgment below erred by misapprehending the legal principles, in light of all the overall circumstances, since Gap corporation's business place deemed that the work day exceeding 10 hours in excess of 10 hours in the daily work day is stipulated as "days", it shall be deemed that the work day exceeding 15 hours in the company Gap et al. should be deemed as the work day

[1] Ordinary wages under the Labor Standards Act as the basis for the calculation of premium pay for overtime, night, and holiday work are money and other valuables agreed to be paid for contractual work hours, which are ordinarily provided by an employee. The fixed wage here refers to the minimum wage to be paid automatically, uniformly, and fixedly, in return for the daily work even if an employee who has worked on an optional day retires on the next day regardless of the name, regardless of the said employee’s retirement. Thus, it can be deemed that the employee’s performance, performance, or other additional conditions are fixed as a matter of course, regardless of whether the employee provided a contractual work on a voluntary day.

Even if a collective agreement or rules of employment stipulate 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 wages in consideration of the personal characteristics of the relevant worker, and such circumstance alone does not constitute a fixed wage for a worker who maintains a normal labor relationship.

[2] Pursuant to Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018), holiday work paid in addition to 50/100 or more of ordinary wages as holiday work allowances shall include not only weekly holiday work prescribed in Article 55 of the same Act, but also daily work determined by collective agreements, rules of employment, etc. under the rules of employment. Furthermore, whether a holiday is determined shall be determined by comprehensively taking into account the language and text of the provisions related to holiday work under a collective agreement, rules of employment, etc., as well as the background leading up to the provision thereof, the regulatory system and practices regarding working hours at the relevant workplace, and the method of calculating wages actually paid when a provision of labor was made.

[3] The case holding that in case where Gap corporation, etc., engaged in passenger transport business as an operator, etc. sought a payment of holiday work allowance for the part of seven hours exceeding 8 hours in excess of 15 hours in excess of 15 hours in daily work hours on the premise that the number of working days exceeds 15 days in the month, the case held that the court below erred by misapprehending the legal principles on the payment of holiday work allowance under the wage table applicable to Eul et al., in addition to “extension” and “even hours”, there are separate items on the allowance table, and it is stated that 50% in the basic salary for eight hours in addition to the number of working days in excess of 15 days in the daily work day column, and in fact Eul et al. received holiday allowance equivalent to 50% in basic salary for eight hours in each working day exceeding 15 days in the month, it is reasonable to deem that Gap corporation, etc.'s work days in excess of 8 hours in the workplace, etc. should be paid as overtime work allowance under the Labor Standards Act.

[1] Articles 2(1)5 and 56 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [2] Articles 55 and 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018) / [3] Article 56 of the Labor Standards Act

[1] Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 (Gong2014Sang, 236) / [2] Supreme Court Decision 90Da14089 Decided May 14, 1991 (Gong191, 1617)

See Attached 1 List of Plaintiffs (Plaintiff 1 and 63 others, Counsel for the plaintiff-appellant)

Attached 2 List of Plaintiffs (Plaintiffs 5 and 5 others)

Common Transport Co., Ltd. and one other (Law Firm International Law, Attorney Choi Jin-hun, Counsel for the plaintiff-appellant)

Busan High Court Decision 2015Na1058, 1065 decided January 14, 2016

Of the part against the plaintiffs in the separate list of plaintiffs 1, 15-A, 15-B, 15-C, 5-3, and 54, the part of the judgment below, excluding the part of the plaintiffs' claim for the paid leave allowance for the plaintiffs other than the deceased non-party's lawsuits, shall be reversed, and this part of the case shall be remanded to Busan High Court. The remaining appeals by the plaintiffs other than the deceased non-party's lawsuits, 15-A, 15-B, 15-C, 15-B, 15-C, and 54, and all appeals by the defendants are dismissed. The costs of appeal between the plaintiff 5 and the defendant Busan High Traffic Co., Ltd. are assessed against the defendant Busan High Court, the part arising between the defendant Busan High Traffic Co., Ltd., 11, 30, 40, 50, 57 and the defendant Young Traffic Co., Ltd.

1. Determination on the grounds of appeal by the Plaintiffs listed in the Plaintiffs’ List as shown in attached Table 1 (hereinafter “Plaintiffs”)

A. Ground of appeal No.1

1) Ordinary wages under the Labor Standards Act as the basis for the calculation of premium pay for overtime, night, and holiday work are money and other valuables agreed to be paid periodically, uniformly, and fixedly for contractual work hours, regardless of their titles. Here, fixed wage refers to the minimum wage to be paid automatically and definitely in return for the daily work even if an employee who has worked on an optional day retires from office on the next day, regardless of its title. As such, if an employee provided contractual work on an optional day, it can be deemed that the employee would naturally be paid regardless of his/her achievements, achievements, or other additional conditions, and whether the amount of payment was determined in advance is fixed (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013, etc.).

Even if a collective agreement or rules of employment stipulate 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 such wage in consideration of the personal characteristics of the relevant worker, and such circumstance alone does not constitute a fixed wage for a worker who maintains a normal labor relationship.

2) According to the reasoning of the lower judgment and the record, the Defendants paid the amount of money in proportion to the number of working days each month as personnel expenses, etc. since they introduced incentives to promote the friendship among the passengers of bus drivers. The Defendants have a provision on suspension of payment of personnel expenses, suspension of CCTV operation, dismissal, etc. according to the frequency of detection after setting the items of evaluation of kind-friendly services, such as failure to perform personnel affairs, act of infinite, etc., and a provision on disciplinary action, such as suspension of payment of personnel expenses, operation of CCTV, dismissal, etc., and the case in which the Defendants’ evaluation or detection was actually

Examining these facts in light of the legal principles as seen earlier, it is merely limited to the restriction of payment as disciplinary action, taking into account the individual characteristics of the worker’s non-performance of work-friendly service, etc., and if an employee who maintains normal labor relations provides contractual work on a voluntary basis, regardless of whether he/she satisfies additional conditions such as work performance or performance, he/she should be paid a certain amount of money in return for his/her work, regardless of whether he/she

3) Nevertheless, the lower court determined that the wage did not constitute ordinary wages on the grounds stated in its reasoning, such as that the payment was made only when an additional condition, other than the provision of contractual work, such as the performance of a kind of personnel expenses, is met, and whether the payment was made and the amount may change at any time. In so determining, the lower court erred by misapprehending the legal doctrine

However, among the various allowances for which the plaintiffs seek payment in this case, they are sought by Plaintiffs 15-A, 15-B, 15-C, and 54 (hereinafter "Plaintiff 1, etc.") from among the various allowances for which they seek payment in this case, the allowances for the day of paid leave, which are sought by the plaintiffs other than Plaintiffs 15-B, 15-C, and 54, are allowances that do not have any standard under the Labor Standards Act, and it is not an allowance calculated according to ordinary wages, including personnel expenses (see, e.g., Supreme Court Decision 2006Da81523, Nov. 29, 2007). Ultimately, the judgment of the court below which did not consider personnel expenses when calculating the unpaid amount in relation to the claim for the day of paid leave by Plaintiffs 1, etc., is justifiable, and therefore, this part of

Therefore, this part of the ground of appeal is with merit within the above scope.

B. Ground of appeal No. 2

1) Article 56 of the former Labor Standards Act (amended by Act No. 15513, Mar. 20, 2018) includes not only weekly holiday work prescribed in Article 55 of the same Act, but also the work on the day determined by a collective agreement or rules of employment, etc. as a holiday work (see Supreme Court Decision 90Da14089, May 14, 1991). Whether a holiday is determined shall be determined by comprehensively taking into account the language and text of the provisions related to holidays in a collective agreement or rules of employment, the developments leading up to such provisions, the regulatory system and practices regarding work hours at the relevant workplace, the actual name and amount of wages paid when a provision of labor was made, the method of calculating the amount of wages paid, etc.

2) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

A) The items of the salary table in 2010 as well as the salary table in 2014 as applied to the Plaintiffs include separate items other than “extension” and “even at night”, and the amount of allowances paid according to the number of working days per month based on the City wage calculated based on the 15th day of the monthly working days by each item of allowances.

In addition, in the column for the holiday allowance of each of the above allowances table, it is stated that 50% of the basic salary for eight hours shall be paid in addition to the number of working days for each working day exceeding 15 days per month.

B) Even in the payment statement of the wages of Defendant Common Transport Corporation, the payment of holiday allowances is separately stipulated separately from overtime allowances and night allowances.

C) In fact, the Plaintiffs have been paid holiday allowances equivalent to 50% of the basic rate of eight-hours for every 15-day working day (one-day working day) exceeding 15-day working day per month.

D) Notwithstanding the foregoing stated in the separate statement of reimbursement and reimbursement specifications, there is no other special circumstance to deem that an additional allowance was determined for overtime work.

E) Meanwhile, the Defendants paid holiday allowances only for 8 hours per day, in the same manner as holiday allowances, for the work of the day expressly stipulated as paid holiday days, such as New Year’s Day and Quite’s Day.

3) Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to deem that the Defendants’ workplace set the hours of overtime work as the “day off”, and accordingly, the Plaintiffs’ overtime work ought to be deemed as the hours of holiday work for which additional allowances are to be paid under the Labor Standards Act.

Nevertheless, the lower court rejected the Plaintiffs’ claim for payment of premium for holiday work on the ground that it is difficult to see that there was an agreement between the Plaintiffs and the Defendants on the holiday work hours, and that there is considerable room for harming the payment of holiday allowance for eight hours during the hours of overtime work per day of overtime work under the wage table as premium allowance for overtime work. In so doing, the lower court erred by misapprehending the legal doctrine on holiday work allowance under the Labor Standards Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. Judgment on the Defendants’ grounds of appeal

A. Ground of appeal No.1

The lower court, based on its stated reasoning, determined that the agreement between the Defendants and individual branches cannot be recognized as effective.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the validity of a collective agreement, contrary to what is alleged in the grounds of appeal.

B. Ground of appeal No. 2

The lower court, on the grounds indicated in its reasoning, determined that daily expenses paid by the Defendants constituted ordinary wages.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on ordinary wages, contrary to what is alleged in the grounds of appeal.

C. Ground of appeal No. 3

The lower court determined that it is difficult to view that there was an agreement between the Plaintiffs and the Defendants on the comprehensive wage system based on its stated reasoning, including the fact that the instant collective agreement clearly divides wages into the basic salary and the allowances for overtime work and holiday work, and that there was an agreement between the Plaintiffs and the Defendants on the comprehensive wage system.

Examining the relevant legal principles and records, 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 the agreement on the comprehensive wage system, thereby adversely affecting

D. Ground of appeal No. 4

For reasons indicated in its holding, the lower court determined that the Defendants should additionally pay weekly holiday allowances to the Plaintiffs on the grounds that the weekly holiday allowances paid by the Defendants to the Plaintiffs do not meet the criteria for weekly holiday allowances as prescribed in the Labor Standards Act, and rejected the Defendants’ assertion that there is no evidence to acknowledge that the Plaintiffs had shown good attendance of the contractual working days each week.

Examining the relevant legal principles and records, contrary to what is alleged in the grounds of appeal, 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 the burden

E. Ground of appeal No. 5

The lower court, based on its stated reasoning, determined that it is difficult to view that the Defendants agreed not to pay wages equivalent to the daily paid leave amounting to one-day paid leave through the sub-council with the chief of the labor union branch.

Examining the relevant legal principles and records, 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 failing to exhaust all necessary deliberations, which affected the conclusion of the judgment

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiffs, other than the claim for the daily paid leave allowance of plaintiffs 1, etc., is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by plaintiffs 1, etc. and the appeals by the defendants are all dismissed as it is without merit. Of the costs of appeal, the part between plaintiffs 5 and the defendant Busan Traffic Co., Ltd. arising between the plaintiff 5 and the defendant Busan Traffic Co., Ltd. shall be borne by the defendant Busan Traffic Co., Ltd., and the part arising between the plaintiff 1, 30, 40, 50, and 57 and the defendant Common Transport Co., Ltd., respectively.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of Plaintiffs: Omitted

Justices Lee Ki-taik (Presiding Justice)