In the event that a collective agreement made a paid worker for 4 hours a.m. on Saturdays without working, whether such hours are included in the number of contractual working hours per month forming the basis for calculating hourly ordinary wages (negative)

If an employer and an employee have been paid for 44 hours a week under the former Labor Standards Act for 48 hours, so as to prevent the reduction of wages as a result of reduction of 44 hours a week, 44 hours a week and has been employed for 48 hours a week under a collective agreement to pay wages in the same manner that 4 hours a week, the hours are not included in the number of contractual hours per month, which serves as the basis for the calculation of hourly ordinary wages.

Article 42 of the Labor Standards Act, Article 31 of the Enforcement Decree of the Labor Standards Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law No. 1986, 308, Counsel for plaintiff-appellant-appellant-appellee)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Park Jong-gu et al. (Attorneys Jeong Jae-sung et al., Counsel for the plaintiff-appellant)

Hyundai Government Co., Ltd. (Attorney Kim Young-gu, Counsel for defendant-appellant)

1. The defendant shall pay to the plaintiff Park Jong-young 391,865 won, 935,626 won to the plaintiff Kim Jong-sik, 736,157 won to the plaintiff Kubong-ro, and 25 percent interest per annum from May 10, 1996 to the full payment date.

2. The remaining claims of the plaintiff Park Jong-gu and the old-gu road are dismissed, respectively.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff Park Jong-young 393,245 won, 819,750 won, and 25 percent per annum with respect to each of the above amounts to the plaintiff Park Young-ro, the amount equivalent to 393,245 won, 819,750 won per annum from the day following the sentencing of this case to the day of full payment, and the decision as to the plaintiff Kim Jong

1. Basic factual basis

The following facts do not conflict between the parties, or can be recognized by comprehensively considering the whole purport of the pleadings in the descriptions of Gap evidence 1, Gap evidence 2-1 to 3, Gap evidence 3-1 to 45, Gap evidence 4-1 to 5-4, Eul evidence 2-1, 2, Eul evidence 3, 4, and 5.

A. The Plaintiffs are currently the employees of the Defendant Company.

B. The basic working hours of workers under a collective agreement concluded between the defendant company and the defendant company trade union are eight hours per day and forty-four hours per week, and four hours per Saturday are paid.

C. In the defendant company, the defendant company paid the worker a day-time leave allowance (parking), idle allowance, overtime allowance, night-time leave allowance, idle labor allowance, day-time leave allowance, family allowance, welfare allowance, production encouragement allowance, qualification allowance, and continuous service allowance. Among them, the welfare allowance, production encouragement allowance, continuous service allowance, and family allowance have been paid to the worker as a certain monthly amount (hereinafter referred to as "fixed-time allowance"), and the above fixed-time allowance shall be included in the scope of ordinary wages.

(d) In addition, for the unused annual leave, the Defendant Company shall pay 100% of ordinary wages on the date of the payment of the annual salary following the following year.

E. In calculating an hourly ordinary wage, the Defendant Company: (a) calculated the hourly ordinary wage by deeming the monthly ordinary wage as 240 (the basic daily ordinary wage x 8 hours per day x 30 days per month) by calculating the monthly ordinary wage in the case of an hourly ordinary wage £« 240; and (b) by calculating the monthly ordinary wage in the case of a monthly ordinary wage x 240.

F. The plaintiff Park Jong-J and Kim Jong-p are a Si rate employee, and the basic rate of fixed allowances and the above monthly salary (in the case of plaintiff Kim Jong-pon, the qualification allowances shall be added), and the plaintiff Kubong-pon is a monthly basic salary and the above monthly fixed allowances, which are paid as a certain amount of continuous service allowances and welfare allowances. The plaintiffs received from July 191 to May 194 (in the case of plaintiff Park Jong-pon, from June 1994), the basic rate of fixed allowances and fixed allowances for each period of time from May 1991 to May 194 are as stated in the corresponding column in attached Table 1, and the hourly ordinary wages for the same period of time paid by the defendant company to the plaintiffs according to the above calculation criteria are as stated in the " hourly ordinary wages paid" column in attached Table 3.

G. Meanwhile, in the same time of the plaintiffs, each extension, night, holiday, and the number of monthly work hours per non-use year are as stated in each corresponding column of attached Table 2.

2. The plaintiffs' assertion

The Plaintiffs calculated the hourly ordinary wage by deeming the monthly contractual work hours as 240 in calculating the hourly ordinary wage, which serves as the basis for calculating the Plaintiffs’ various allowances. However, in the case of Plaintiff Park Jong-gu and Kim Jong-sung, the Defendant Company’s measures should be calculated by using the formula in the formula in the basic hourly wage ＋ (monthly fixed pay / 191.19), and in the case of Plaintiff Go Young-gu, the monthly wage /225.9. As such, the Defendant Company’s measures should reduce the hourly ordinary wage by unfairly reducing the hourly ordinary wage, thereby seeking the payment of the difference.

3. Issues of the instant case

The instant allowances sought by the Plaintiffs are paid on the basis of hourly ordinary wages. As such, as seen earlier, the fixed allowances paid in a certain amount per month by the Plaintiffs are included in the scope of ordinary wages, only how to calculate the said fixed allowances and the monthly basic salary paid in the length of the Plaintiff’s salary as hourly ordinary wages would be the issues of the instant case.

4. Determination

(a) Determination of the number of contractual work hours per month;

(1) In order to calculate the monthly amount of ordinary wage as the hourly ordinary wage, the above amount should be divided by the number of contractual work hours per month is clearly stipulated in the Labor Standards Act.

However, since the plaintiffs have worked for 44 hours a week, it is clear that the monthly fixed working hours of the plaintiffs are (44/7) 】 (365/12) and 191.19 (tacks below the decimal point; hereinafter the same shall apply).

However, in the case of a monthly-level employee, Sundays is paid holidays and included in the monthly-level allowance. However, since weekly holiday allowance cannot be included in the ordinary wage, in order to calculate the hourly ordinary wage, monthly ordinary wage should be divided into the number of contractual working hours of the above month. For this purpose, Sundays should also be divided into monthly wage [(44+8)/7)/365/12], i.e., 225.95 (the above 225.95 is limited to the coefficient for logical manipulation rather than the monthly contractual working hours, and the number of contractual working hours of the month is still understood as 191.19).

(2) However, since there is a provision that 4 hours paid in 00 p.m. in this case, there is a question that it should be included in the above logical manipulation, and eventually, there is a question whether the coefficient for calculating hourly ordinary wages [(44+44+8)/7 】365/12], i.e., it is not that it should be 244.33 (the defendant asserts that the above coefficient should be 240 or 244.3 by deeming that he works for 4 hours in 0 p.m. on Saturdays and by deeming that he works for 4 hours in 0 p.m.).

However, the circumstances leading up to the collective agreement as above are that the prescribed working hours of the week under the former Labor Standards Act are 48 hours, and the wage is reduced to 44 hours a week, 44 hours a week, and 48 hours a week, so as to prevent the reduction of wages, the said collective agreement shall not be deemed as working hours for 4 hours a week in the logical manipulation as above without actually working hours.

In such a case, it cannot be said that the contractual work hours of the week are increased, and even if the defendant had an intention to make the contractual work hours of the week 48 hours in calculating ordinary wages for workers, such measures cannot be permitted in violation of the Labor Standards Act (this part of the defendant's assertion is without merit).

B. Calculation of the Plaintiffs’ hourly ordinary wages and the instant allowances

(1) There is no dispute between the parties that the monthly basic salary paid each month and the fixed allowances paid each month are included in the fixed allowances. Thus, the above plaintiff's hourly ordinary wage should be calculated by sharing the sum of the above amount to 225.95 by 225.95 (monthly basic salary + fixed allowances)/225.95, so the plaintiffs' above assertion is reasonable.

Accordingly, the hourly ordinary wage of the plaintiff old-gu shall be as stated in the column of "the hourly ordinary wage" as stated in attached Table 3-C, and the amount of the various allowances of this case which have not been paid because the hourly ordinary wage was unfairly less than the hourly ordinary wage due to the above circumstances shall be as stated in the column of "the unpaid allowance amount" as stated in attached Table 3-C. (However, the unpaid amount of the various allowances shall be, in principle, calculated as follows (the hourly ordinary wage x the number of working hours) x (the number of actual working hours x the number of working hours) x the number of working hours; hereinafter the same shall apply).

(2) In the case of Plaintiff Park Jong-in and Kim Jong-type, the basic rate of fixed allowances is set and the amount of fixed allowances in a certain monthly amount is received. If the weekly holiday allowances are not included in the fixed allowances depending on whether or not the weekly holiday allowances are included in the fixed allowances, the hourly ordinary wages can be calculated by adding the amount calculated by dividing the above amount by 225.95, which is the above coefficient, to the basic rate of pay (the Defendant’s argument that the above allowances should be divided into 240 or 24.3 cannot be accepted for the above reasons).

However, the above plaintiffs do not have the title of weekly paid leave allowance, and the above plaintiffs are paid with a different weekly paid leave allowance as seen earlier. Accordingly, the above plaintiffs' hourly ordinary wage should be calculated by adding a fixed allowance to the basic hourly rate by the amount calculated by dividing the fixed allowance by 191.19, i.e., the basic hourly pay + (fixed rate / 191.19) ＋ (fixed rate /191.19). Thus, this part of the plaintiffs' assertion is justified.

Accordingly, the hourly ordinary wage of the plaintiff Park Jong-in and Kim Jong-type is the same as the statement in the column of "the hourly ordinary wage" of attached Table 3-A(b). The amount of the various allowances of this case which was not paid because the hourly ordinary wage was not unfairly calculated due to the above circumstances are the same as the statement in the column of "the unpaid allowance amount" of attached Table 3-A(b).

5. Conclusion

Therefore, the defendant is obligated to pay damages for delay at the rate of 25% per annum from May 10, 1996 to the full payment day, as the plaintiffs' claim is filed against the plaintiff Park Jong-su, 391,865 won, and the plaintiff Kim Jong-sik, 935,626 won, 736,157 won, and each of the above amounts to be claimed by the above plaintiff Park Jong-su, and 736,157 won and the above amounts. Thus, the defendant is obligated to pay damages for delay at the rate of 25% per annum from May 10, 196 to the full payment day, which is the following day of the judgment of this case. Thus, each of the claims of the plaintiff Park Jong-su and Jeon-ro shall be accepted within the above scope of the above recognition, and all of the claims of the plaintiff Kim Jong-su shall be accepted for all of the reasons, and the remaining claims

Judges Ahn Young-jin (Presiding Judge)