Plaintiff 1 and fourteen others (Attorney Park Jae-hoon, Counsel for the plaintiff-appellant)

Han-si Co., Ltd. (Attorney Choi Jong-won, Counsel for defendant-appellant)

May 29, 2014

Changwon District Court Decision 201Da11306 Decided June 27, 2013

1. The defendant's appeal against the plaintiffs is dismissed.

2. The costs of appeal shall be borne by the Defendant.

The Defendant shall pay to the Plaintiffs 2. Attached Form 2. The amount indicated in the claim amount column, and each of them, 20% interest per annum from the next day of the delivery of the purport of the claim and the copy of the request for correction of cause as of May 2, 2013 to the day of complete payment.

The part of the judgment of the court of first instance against the defendant shall be revoked, and all plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination

A. Determination as to the claim for wages

1) The defendant's duty to pay wages

A) The term of validity of the collective agreement in this case is from June 15, 2010 to June 14, 2012. The wage agreement is based on the wage agreement. Pursuant to Article 11 of the collective agreement in this case, the fact that the chairperson of the Labor Relations Division in this case is recognized as working full-time on the 13th day of each month, and the 3th day of each month is recognized as working full-time employee. In full-time considering the overall purport of arguments in Eul evidence 7-1 to 16, 8-1 to 16, the 4, 6, and 8, the remaining plaintiffs except the above plaintiffs from July 15, 2010 to October 14, 201, the defendant is deemed to have no duty to pay the plaintiff's wages for the 13th day of service as the number of working days in the wage column for each of the plaintiff's labor relations division in this case, and the defendant is deemed to have worked on the 10th day of each of the above 10th day of work.

B) As to this, the Defendant asserts that the instant collective agreement is the only labor organization of the Defendant, and that all the employees belonging to the Defendant have joined the instant union division (Articles 1 and 3 of the instant collective agreement). Since the amendment of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) was possible, multiple labor unions could be established pursuant to the amendment of the said union and Labor Relations Adjustment Act, and the Defendant also works for a separate union in addition to the instant union division, the instant collective agreement is null and void as it is in violation of the said Trade Union Act, and in particular, Article 11 of the said Trade Union Act was prohibited from paying wages to full-time union employees, and thus, it is invalid.

In light of the fact that the amendment of the Trade Union Act was made on January 1, 2010, before the conclusion of the instant collective agreement, it is difficult to view that the entire collective agreement of this case is null and void solely on the fact that the establishment of multiple labor unions is permitted from July 1, 2011. The proviso of Article 3 of the Addenda to the Trade Union Act (Law No. 930, January 1, 2010) provides, “However, if the whole or part of the contents of the collective agreement violates Article 24 due to the enforcement of this Act, it shall be deemed to be effective until the expiration date of the relevant collective agreement, notwithstanding the enforcement of this Act, notwithstanding Article 24(2) of the amended Trade Union Act, Article 11 of the instant collective agreement on the full-time employee of the Trade Union is valid until June 14, 2012, the term of validity of the instant collective agreement. Therefore, the above assertion by the Defendant is rejected.

C) Next, in accordance with the enforcement of the Minimum Wage Act, the Defendant asserts to the effect that it constitutes an abuse of rights against the good faith principle to seek wages, etc. based only on the previous collective agreement in favor of the Plaintiffs, even though a new collective agreement should be concluded to adjust working conditions, such as working hours, by taking into account the changed economic circumstances, such as price, taxi rate, fuel cost, and corporate management status, etc., by taking into account the following factors:

On the other hand, the principle of trust and good faith under the Civil Act refers to an abstract norm that a party to a legal relationship should not exercise his right or perform his duty in a way that violates the principle of trust and good faith by taking into account the other party's interests. In order to deny the exercise of right on the ground that such exercise of right violates the principle of trust and good faith, the other party should have provided good faith to the other party, or the other party should have been objectively regarded as being in a legitimate state, and the exercise of right against the other party's faith should not be acceptable in light of the concept of justice (see Supreme Court Decision 2003Da18401, May 26, 2006, etc.). Considering the overall purport of arguments in Eul evidence 5, it is difficult to conclude a new collective agreement because there is no narrow difference between the parties and the defendant before and after the enforcement of the Minimum Wage Act, and thus, it is difficult to accept the existing Minimum Wage Act by calculating the abuse of right to receive wages more than the minimum wage amount, etc. 2081.

D) Furthermore, in the past, the Defendant: (a) determined a monthly fixed amount of wages of taxi drivers in accordance with the agreement between labor and management; and (b) concluded the instant collective agreement under such premise; (c) the minimum wage was considerably increased due to the enforcement of the Minimum Wage Act; and (d) there were special circumstances under which the Defendant is bound to pay fixed wages at a level which the Defendant could not cope with; and (d) the Defendant argues to the purport that the instant collective agreement was rescinded due to changes in circumstances, which led to a significant change in circumstances that the Defendant could not have anticipated at the time of entering into the instant collective agreement, but did not comply with the Plaintiffs, as the conclusion of the new collective agreement was interrupted.

On the other hand, the so-called change in circumstances occurs due to a significant change in circumstances that the parties could not have predicted at the time of the formation of the contract, and the change in circumstances occurred due to reasons for which the right to cancel is not attributable to the party who has acquired the right to cancel. If the binding force of the contract is recognized, it is recognized as an exception to the principle of contract observance (see Supreme Court Decision 2008Da44368, Jun. 24, 2011, etc.). Article 6(5) of the Minimum Wage Act was amended by Act No. 8964, Mar. 21, 2008. Article 1(2) of the Addenda of the Minimum Wage Act was enforced in Si area as of July 1, 2010. Since the collective agreement of this case was concluded with known with the content and enforcement date of the amendment, it is difficult to conclude the collective agreement of this case with the Defendant, as well as the Defendant’s assertion that there was considerable change in circumstances that it could not have been predicted at the time of signing the collective agreement of this case.

2) The existence and scope of unpaid wages

A) Determination on the claim for below the minimum wage amount

Article 6(1) of the Minimum Wage Act (amended by Act No. 8818, Dec. 27, 2007; hereinafter the same shall apply) provides that an employer shall pay the workers subject to the minimum wage to pay wages exceeding the minimum wage amount (Article 6(1)); a labor contract which provides wages below the minimum wage amount between the workers subject to the minimum wage and the employer shall be null and void only for that part; and the invalidated part shall be deemed to be prescribed to pay the same wage as the minimum wage amount as prescribed by the above Act (Article 6(3)

Therefore, if the wages paid by the Defendant to the Plaintiffs from July 2010 to October 2011 fall short of the minimum wage amount prescribed in the above Act, the Defendant is obligated to pay the difference to the Plaintiffs pursuant to the above provision. Whether the paid wages fall short of the minimum wage amount or not shall be determined by comparing the paid wages with the minimum wage amount included in the minimum wage under Article 6(5) of the Minimum Wage Act and Article 5-2 of the Enforcement Decree of the same Act (hereinafter “non-paid minimum wage amount”). Under the above case, the amount of the minimum wage amount and the comparable amount under the Minimum Wage Act shall be viewed as the case of this case.

(1) Minimum wage amount;

The monthly minimum wage amount of the Plaintiffs under the Minimum Wage Act shall be calculated by the method of “the minimum wage per hour publicly notified by the Minister of Labor under the Minimum Wage Act 】 the actual working hours per month of the Plaintiffs (i.e., the number of monthly working hours x the daily working hours x the daily working hours). The fact that the minimum wage per hour in 2010 publicly notified by the Minister of Labor pursuant to Article 10 of the Minimum Wage Act is significant in this court, and that the minimum wage per year in 2011 is 4,320, and the rest of the Plaintiffs except the Plaintiffs 6 are naturally agreed that the daily working hours will be eight hours per day in lieu of the daily working hours, and six hours in overtime work (i.e., the daily working hours are included in the wage agreement entered into with other labor unions that the Plaintiffs do not subscribe to, and (ii) the Plaintiffs are not entitled to the minimum wage agreement that the Plaintiffs are entitled to the payment of the Plaintiffs’ wage per day in advance due to the fact that the Plaintiffs are not entitled to the Plaintiffs’ wage per day in accordance with the Minimum Act.

Therefore, from July 2010 to October 201, the monthly minimum wage of the remaining plaintiffs is the sum of the money indicated in the weekly holiday allowance column among the money indicated in the basic salary column for each of the attached Forms 4 to 8, 9 through 18 of the plaintiffs' basic salary grade calculated by multiplying the remaining plaintiffs' minimum wage per hour by the actual number of working hours per month. The sum of money indicated in the weekly holiday allowance column for each of the attached Tables 4 to 8, 9 through 18 of the plaintiffs' basic salary grade and the weekly holiday allowance for each of the remaining plaintiffs.

(2) The comparable amount

Article 6(5) of the Minimum Wage Act provides that the scope of wages included in the minimum wage of drivers in taxi transport business pursuant to Article 3 of the Passenger Transport Service Act and subparagraph 2(c) of Article 3 of the Enforcement Decree of the same Act shall be the wages prescribed by Presidential Decree, excluding the wages calculated on the basis of the output. According to the Addenda of the same Act, in the case of creative city, the above Act shall enter into force from July 1, 2010.

Meanwhile, Article 5-2 of the Enforcement Decree of the Minimum Wage Act provides that “wages prescribed by Presidential Decree” under Article 6 (5) of the Minimum Wage Act refers to wages paid at least once a month according to the terms and conditions of payment and payment rate prescribed by a collective agreement, rules of employment, and labor contract. Provided, That wages other than those paid for contractual work hours or contractual work days and for workers’ living assistance and welfare benefits shall not be included in the minimum wage.” The term “wages other than those paid for contractual work hours or contractual work days” refers to “annual leave allowances, paid leave allowances, paid leave allowances, paid holiday work allowances, overtime work hours, and holiday work hours, additional wages for night work, etc.”

In light of the above legal provisions, we examine whether the specific wage details received by the plaintiffs from the defendant belongs to the wages included in the comparable amount.

(A) Basic pay;

This is the wages regularly paid once or more a month according to the payment terms and payment rate set in the employment contract for the basic working hours of eight hours a day, and shall be included in the comparable amount.

(b) overtime allowances and night work allowances;

Allowances are wages, other than those paid for the prescribed working hours, which are paid on the premise of night work or work for a certain period of more than a certain time, and are not included in the comparable amount.

(C) A weekly holiday allowance.

This is the wages paid regularly once or more a month according to the predetermined payment rate for workers who have completed their normal work a week and paid for the prescribed working days, and shall be included in the comparable amount.

(d) Continuous service allowances;

If a member who has served for at least one year has worked for at least 10 days a month, it shall be regularly paid at least once a month according to the predetermined rate of payment and paid for the prescribed working days, and it shall be included in the comparable amount.

(e) The Chairperson’s allowance.

This is an allowance paid to Plaintiff 6, the chairperson of the Labor Relations Division of this case, for the duties of full-time management of labor, and is not a wage, which is the price for the provision of labor, and is not included in the comparable

(3) Sub-decisions

Comprehensively taking account of the overall purport of the arguments in subparagraph 7-1 through 16 of the evidence Nos. 7-1 through 7, the Defendant’s remaining Plaintiffs from July 2010 to October 201, the sum of basic wages, weekly holiday allowances, and continuous service allowances included in the comparable amount among the wage details paid by the Plaintiffs from July 2010 to October 201, can be recognized as having the same facts as each of the money listed in paragraph (1) included in the previous payment column among the “wages details” by each Plaintiff as the remainder of each Plaintiff. Since each of the above money falls short of the minimum wage amount from July 2010 to October 2011 as seen earlier (=basic pay + weekly holiday allowances) so the Defendant is obligated to pay the remainder of the Plaintiffs and the delay damages therefrom.

B) Determination on the claim for overtime allowance and night work allowance

The Defendant agreed to pay overtime and night work allowances calculated by multiplying the number of working days by the payment rate determined on the basis of the hourly wage in accordance with the wage agreement in this case to taxi drivers including the remaining Plaintiffs, as seen earlier. Article 6(3) of the Minimum Wage Act provides that the part on which the amount below the minimum wage amount among the labor contract between the employees and the employer subject to the minimum wage is determined as wages shall be null and void. In this case, the invalidated part shall be deemed to have made payment of the same wage as the minimum wage amount under the Minimum Wage Act. As seen earlier, since the Defendant’s total amount of basic, weekly, and continuous work allowances paid to the remaining Plaintiffs falls short of the minimum wage amount from July 201 to October 201, the Defendant is obligated to pay the difference to the remaining Plaintiffs under the Minimum Wage Act, it is reasonable to deem that the remaining Plaintiffs’ overtime work allowances and night work allowances shall be paid by the amount calculated by multiplying the wage rate under the wage agreement in this case based on the minimum wage rate under the Minimum Wage Act, not the time wage agreement in this case.

Therefore, the Defendant, as requested by the remaining Plaintiffs, is obligated to pay the remainder of overtime work allowances, night work allowances, and damages for delay thereof, deducting the total amount of overtime work allowances and night work allowances paid by the Defendant to the remaining Plaintiffs during the said period, from the overtime work allowances, night work allowances, and night work allowances, calculated at the level of urgency under the Minimum Wage Act from July 201 to October 201.

C) Determination on the claim for wages for full-time services rendered by Plaintiffs 4, 6, and 8

Plaintiff 4, Plaintiff 6, and Plaintiff 8 asserted that, on the premise that the basic salary, overtime allowance, night work allowance, and weekly holiday allowance, etc. that are paid to the full-time employee of the Trade Union is subject to the Minimum Wage Act, Plaintiff 6 is the chairman of the Trade Union Division of this case, and Plaintiff 4 and Plaintiff 8 are obligated to pay money and delay damages corresponding to the difference between the minimum wage amount under the Minimum Wage Act from July 201 to October 201 and the amount paid by the Defendant during the said period, as the head of the work or vice-chairperson of the Trade Union Division of this case, for the 13th day of each month in which the full-time employee is recognized.

The full-time officer of a trade union is exempt from the employer’s duty to pay wages in response to the fact that the full-time officer of a trade union maintains a basic labor-management relationship with the employer, while maintaining his/her status as a worker, and only engages in the affairs of a trade union is determined by a collective agreement or consented by the employer. As such, even if the employer pays a certain amount of money to the full-time officer of a trade union in accordance with a collective agreement, labor-management practice, etc., it cannot be deemed as wages as remuneration for labor (see Supreme Court Decision 2010Da106054, Aug. 18, 201, etc.). Article 2 of the Minimum Wage Act provides that the term “wages” in this Act refers to wages under Article 2 of the Labor Standards Act, and Article 2 subparag. 5 of the Labor Standards Act provides that “wages” refers to wages, wages, and any other kind of money or valuables, regardless

In light of the above legal principles and relevant provisions, it is difficult to view that Plaintiff 4, 6, and 8’s basic pay, overtime work allowance, night work allowance, and weekly holiday allowance paid by the Defendant for the full-time service pursuant to the collective agreement and wage agreement of this case as wages subject to the Minimum Wage Act because they cannot be deemed as wages, which are labor remuneration, and thus, they cannot be deemed as constituting wages subject to the Minimum Wage Act. Accordingly, Plaintiff 4, 6, and 8’s claim for this part of this amount is without merit, premised on the premise that each of the above money constitutes wages subject to the Minimum Wage Act.

However, the minimum wage per hour in 2010 is KRW 4,10, the minimum wage per hour in 201 is 4,320, and the minimum wage per year in 201 is 4,320, Plaintiff 4 is the chief of the labor union division of this case, Plaintiff 6 is the chairperson and Plaintiff 8 vice-chairperson. The collective agreement of this case and the wage agreement of this case recognize that the president of the labor union division of this case shall be transferred to the president of the labor union on the 13th day of each month and provide the same treatment as the driver's full-time work. The fact that the president of the labor union of this case recognized that the president of the labor union of this case shall be transferred to the labor union of the third day of each month, and the basic salary, weekly paid leave allowances, and continuous service allowances paid by the defendant to the remaining plaintiffs are below the minimum wage amount in July 2010 to October 201 of the remaining plaintiffs. Thus, the defendant is obligated to pay the difference under the Minimum Wage Act.

Therefore, in accordance with the collective agreement and wage agreement of this case, the Defendant shall pay the minimum wage amount calculated in accordance with the Minimum Wage Act as well as overtime work allowances, night work allowances, and night work allowances to the Plaintiff 6 on the 13th day of each month in which the duties of union chief as the chairman of the labor union division of this case are recognized, as well as the minimum wage amount calculated in accordance with the Minimum Wage Act as to the 13th day of each month in which union chief as the chairman of the labor union of this case was engaged. In addition to the actual number of working days to the Plaintiff 4 and the Plaintiff 8, in addition to the actual number of working days, the minimum wage amount calculated in accordance with the Minimum Wage Act as to the 3th day of

D) Determination on Plaintiff 6’s claim for the chairperson’s allowance

Article 10 of the collective agreement of this case provides that the Defendant shall pay 18,000 won per day to the Plaintiff 6, who is the chairperson of the Trade Union Division of this case, with 18,000 won per day. As seen earlier, the Defendant is obligated to pay the Plaintiff 6 the remainder of the chairperson’s allowance after deducting the total sum of the chairperson’s allowance paid to the Plaintiff 6 from July 201 to October 201 as sought by Plaintiff 6 and the delay damages.

E) Total amount to be paid by the Defendant

The minimum wage amount calculated on the basis of the monthly minimum wage from July 2010 to October 2011 by the plaintiffs other than the plaintiff 6 (i.e., basic pay + weekly holiday allowance), overtime work allowance, night work allowance, and night work allowance are the same as the money (i.e., the wage amount to be paid among the "wages" by the plaintiffs other than the plaintiff 4 through 8, 10 through 18, and (ii) the whole purport of the arguments in subparagraph 7-1 to 16, the above plaintiffs' basic pay, overtime work allowance, night work allowance, weekly holiday allowance, continuous work allowance, and continuous work allowance paid by the defendant for the above period, can be acknowledged as having the same facts as the money (ii) written in the column of the previous payment (excluding the plaintiff 6). Accordingly, the defendant has the duty to pay the remaining plaintiffs, excluding the plaintiff 6, the remaining amount of the plaintiff - (ii) the amount of the plaintiff 4 through 8, 10 through 18.

The sum of the minimum wage amount calculated on the basis of the monthly minimum wage from July 2010 to October 2011 (i.e., basic pay + weekly holiday allowance), overtime work allowance, night work allowance, and chairperson’s allowance (for convenience to reveal the chairperson’s claim for allowances for a period for which the chairperson was not paid), as shown in attached Table 9. In full view of the purport of the arguments in subparagraph 7-1 to 16, Plaintiff 6’s basic wage, overtime work allowance, night work allowance, weekly holiday allowance, continuous work allowance, and chairperson’s allowance paid from the Defendant during the above period (i.e., wages) and the amount indicated in attached Table 9. Accordingly, the Defendant is liable to pay the Plaintiff 6 the unpaid amount and delayed payment damages.

[However, while the plaintiffs are seeking weekly leave allowances regardless of the number of working days each month, the weekly leave allowances are different from the number of working days. As seen earlier, the weekly leave allowances are different from the amount of basic pay for 1 to 4 days depending on the number of working days. Therefore, the part of the plaintiffs' assertion that exceeds the respective money stated in the weekly leave allowances column among the amounts stated in the attached Forms 4 through 18 of the above plaintiffs is without merit.]

Meanwhile, the Defendant asserts to the effect that each of the above amounts should be deducted as the Defendant paid the money stated in the evidence No. 1-3 as part of the minimum wage amount, but considering the overall purport of the pleadings as to Gap evidence No. 2 and Eul evidence No. 1-3, it can be recognized that each of the above amounts was autonomously paid by the Plaintiffs to the Defendant for each working day, so it constitutes the "wages based on output" under Article 6 (5) of the Minimum Wage Act, and thus, it does not constitute the wages included in the minimum wage amount. Thus, the Defendant’s above assertion is without merit.

B. Determination as to the claim for unpaid bonuses

The fact that Article 7 of the wage agreement of this case provides that the average wage of 200% shall be paid in quarterly ( March, June, September, and December) with bonus to the union members who worked for not less than one year in accordance with the collective agreement of this case. The part which determined the amount below the minimum wage out of the labor contract between the union members subject to the minimum wage and the employer shall be null and void, and the invalidated part shall be deemed to have been paid the same wage as the minimum wage under the Minimum Wage Act. In light of the above, it is reasonable to deem that the "average wage" under Article 7 of the wage agreement of this case refers to the minimum wage amount where the wages paid to the plaintiffs subject to the Minimum Wage Act are below the minimum wage amount (the amount paid to the union members as union members pursuant to the collective agreement of this case cannot be deemed to have been paid in return for the provision of labor, and it is reasonable to view that the amount paid to the union members as the basis of the average wage of this case does not apply to the union members as the above amount applied to the union members.

The quarterly bonus to be paid by the Defendant to the rest of the Plaintiffs except for Plaintiff 14 who did not seek the payment of bonuses (i.e., monthly average wage amount for three months ± (ii) is the same as the amount indicated in the bonus column among the annexed Table 19. In full view of the overall purport of the pleadings in the annexed Table 19-4, the bonus already paid by the above Plaintiffs can be acknowledged as the same facts as the amount indicated in the previous payment column among the above details. Accordingly, the Defendant is liable to pay the above Plaintiffs each amount of the unpaid payment and the delay compensation amount.

[However, the above plaintiffs seek payment of bonus in excess of the above money on the premise that the average wage, which forms the basis for calculating bonus, includes the weekly paid holiday allowance regardless of the number of working days, but according to the wage agreement of this case, the weekly paid holiday allowance is different from the daily paid day to April according to the number of working days. Thus, the plaintiffs' allegation in this part on the premise that the weekly paid holiday allowance is included in the average wage regardless of the number of working days, is without merit.

C. Sub-committee

Therefore, the Defendant is obligated to pay each of the following amounts to the Plaintiffs as stated in the cited amount column in attached Form 1. The Defendant’s each of the following dates: (a) from May 7, 2013, the following day following the delivery of a copy of the claim and the application for correction of cause as of May 2, 2013; (b) 5% per annum under the Civil Act until June 27, 2013, which is the date of the first instance judgment, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

3. Conclusion

Therefore, the plaintiffs' claims are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit, and the judgment of the court of first instance with the same conclusion is justifiable, and each appeal against the plaintiffs is dismissed, and it is so decided as per Disposition.

[Attachment Omission]

Judges Doh-type (Presiding Judge) Doh-ro

(1) As examined below, the money that the Defendant paid to Plaintiffs 4, 6, and 8 in relation to the union labor service pursuant to the instant collective agreement and wage agreement cannot be deemed as wages, which are remuneration for the provision of labor within a strict meaning. However, the money that the Defendant should pay to the Plaintiffs is considered as wages for convenience along with the unique meaning of the money that the Defendant should pay to the Plaintiffs.