(영문) 대법원 2015.4.23.선고 2012다115526 판결

The lower court determined that CCTV allowances that uniformly paid KRW 6,000 per day according to the number of working days are fixed wages that have been paid periodically and uniformly, regardless of actual work performance, and thus, constituted ordinary wages.

Examining the above judgment of the court below in light of the relevant legal principles and records, it did not err in the misapprehension of legal principles as to the scope of ordinary wages, incomplete deliberation, and violation of the principle of pleading.

2. Regarding ground of appeal No. 2

A. 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 (average number of hours per year multiplied by the standard number of hours for calculation of weekly ordinary wage, divided by 12) (Article 6(2)4 of the Enforcement Decree of the Labor Standards Act). However, where an employee receives a monthly wage or a monthly fixed allowance with basic pay as wages for agreed working hours in excess of the standard working hours prescribed in the Labor Standards Act, a fixed allowance paid in the form of a monthly wage or a monthly ordinary wage shall not be deemed as ordinary wage, since it includes a fixed allowance paid in the form of a monthly wage and an extended or night work prescribed in Article 55 of the Labor Standards Act, which cannot be deemed as ordinary wage, and the total amount of the fixed allowance shall not be deemed as ordinary wage. Therefore, the aforementioned legal doctrine regarding the hourly ordinary wage is equally divided by 10 months or night work hours (see, e.g., Supreme Court Decision 200Da16210, Sept. 2, 2019).

B. According to the reasoning of the lower judgment and the record, the collective agreement in 2007 provides that the basic working hours shall be 8 hours a day and 40 hours a week, and the working hours and working hours may be worked under the labor-management agreement in consideration of the characteristics of transportation business, and that the “working hours and working hours” shall be subject to separate wage agreement in 2007 shall be subject to separate wage agreement. The wage agreement in 2007 and the details of wage calculation shall be concrete and shall be paid 31,461 won for the part working hours a day as overtime allowance and 1,748 won for the part working hours a day as night work allowance. The wage agreement in 2008 and 2009 and the details of wage calculation in 209 set the same time as those of the wage agreement in 208 and 209 set the working hours for which the standard working hours exceed the standard working hours under the Labor Standards Act are subject to the calculation of wages.

Therefore, allowances paid in the form of a monthly salary or daily wage among the various allowances prescribed in a collective agreement and wage agreement are wages for agreed work hours that include overtime work and night work. Thus, the hourly ordinary wage for continuous work allowances paid in the monthly wage is calculated by dividing the continuous work allowance by the total number of working hours calculated by aggregating the standard working hours per month, the average working hours per month, and the monthly average overtime and night work hours that take into account the respective premium rates, and the daily average working hours per month, and the hourly ordinary wage for CCTV allowances shall be calculated by dividing it by the number of working hours that the total working hours per day and night work hours that take into account each additional rate per day.

Unlike this, the lower court erred by misapprehending the legal doctrine regarding the calculation of ordinary wages, thereby adversely affecting the conclusion of the judgment, on the basis of the calculation of the hourly ordinary wages, except for extended working hours and night work hours. The ground of appeal assigning this error is with merit.

3. As to the third ground for appeal

A. The lower court, based on evidence, acknowledged the fact that the average wage calculation, which forms the basis for calculating bonuses, shall be the amount calculated by dividing the total amount of salaries for three months each quarter and the amount including various allowances, by three months, as a result of the payment of bonuses in four equal annual installments each year under the instant collective agreement and wage agreement, and determined that the Defendant shall pay to the Plaintiffs at each payment date 78.75% (=315%: 4%) of the total amount of salaries for three months from the date on which the payment date of bonuses arrives, and that the total amount of salaries and allowances prescribed in the said provision should be the amount that includes the difference between the respective allowances calculated on the basis of the ordinary wages modified by adding the monthly wages that the Plaintiffs actually received.

Examining the above judgment of the court below in light of the relevant legal principles and records, it did not err by misapprehending the legal principles on the calculation of bonuses.

B. However, it is difficult to accept the lower court’s determination of bonus, including CCTV allowances, for the following reasons.

If the labor and management agreed to exclude certain allowances from the standard wage that serves as the basis for the calculation of bonuses, the agreement remains effective unless there are special circumstances (see, e.g., Supreme Court Decision 2006Da81523, Nov. 29, 2007).

According to the records, the defendant paid CCTV allowances of 6,000 won per day to all drivers according to the labor-management agreement in February 1998, and agreed not to apply CCTV allowances to bonuses. According to the above legal principles, the above agreement is valid, and therefore, CCTV allowances shall not be included in the standard wages which form the basis for calculating bonuses.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the scope of payment of bonuses, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. As to the fourth ground for appeal

The lower court, based on evidence, acknowledged the fact that the average wage calculation for the calculation of retirement allowances in the instant collective agreement and the wage agreement shall include the total amount of wages, food, travel expenses, accident-free allowances, continuous service allowances, allowances for work on board, bonus, and annual salary as of the last working day before the occurrence of the cause for retirement, etc., and determined that the Defendant was liable to calculate and pay retirement allowances by including the daily allowance received by the Plaintiffs, as it was excluded from the calculation of the amount of daily allowance (including daily expenses) to be included in the calculation of retirement allowances in accordance with the instant collective agreement and the wage agreement provisions. Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine and omitting the determination, as otherwise alleged in the grounds of appeal.

5. Conclusion

Therefore, insofar as the grounds of appeal Nos. 2 and 3 are accepted, each of the instant allowances, bonuses, and retirement allowances must be re-calculated accordingly. As such, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.