Plaintiff 1 and 34 others (Attorneys Kim Ho-woo et al., Counsel for the plaintiff-appellant)

Sung-nam City (Law Firm Fence, Attorneys Cho Young-ho et al., Counsel for the plaintiff-appellant)

November 4, 2011

Suwon District Court Decision 2008Gahap1018 Decided July 10, 2009

1. The judgment of the first instance court, including a claim partially expanded in the trial, shall be modified as follows:

A. The defendant shall pay to the plaintiffs each money stated in the "A. Illegal Payment Allowance" in the attached Table 1 list and the corresponding money.

(1) As from July 15, 2006, Plaintiffs 13, 18, and 25

(2) As from January 15, 2007, Plaintiffs 2, 11, and 15:

(3) From July 15, 2007, Plaintiffs 4, 6, 8, 16, 17, 19, 27, 33, 34, and 35:

(4) As from July 30, 2007, Plaintiff 10

(5) From January 15, 2008, Plaintiffs 1, 3, 5, 7, 21, 22, 26, and Plaintiff 28-A, the deceased Nonparty 1’s taking over lawsuit, Plaintiff 28-B, the taking over of lawsuit of the deceased Nonparty 1, and Plaintiff 28-B, the taking over of lawsuit of the deceased Nonparty 1, the deceased Nonparty 1’s taking over lawsuit;

(6) From April 23, 2008, Plaintiffs 29, 30, 31, and 32

(7) As from July 15, 2008, Plaintiffs 9, 14, 20, 23, and 24:

(8) As from August 16, 2008, Plaintiff 12

By November 18, 2011, 5% per annum and 20% per annum from the following day to the date of full payment.

B. All remaining claims of the plaintiffs are dismissed.

2. The total costs of the lawsuit are five-minutes, and three-minutes are assessed against the plaintiffs, and the remainder is assessed against the defendant.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiffs 20% interest per annum from the date set forth in the attached Form 1-1-1-8 to the date of full payment. The defendant shall pay to the plaintiffs 20% interest per annum from the date set forth in the attached Form 1-1-1-1-8 to the date set for full payment.

(1) In the first instance trial, the Plaintiff filed a claim for the payment of the delayed legal allowance and the retirement allowance in the first instance trial, and withdrawn the claim for the payment of the unpaid retirement allowance, and reduced the amount of the claim for the payment of the unpaid legal allowance. Meanwhile, the Plaintiff, as the principal claim, claimed the payment of the unpaid legal allowance under the premise that the “over-time service allowance for two hours a day” is ordinary wages, and as the conjunctive claim, claimed the payment of the unpaid legal allowance under the premise that it is a statutory allowance. However, each of the above claims is merely a modification of the means of attack and defense against the payment of

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

1. Basic facts

A. Plaintiffs (Plaintiff 28-A, Plaintiff 28-B, Plaintiff 28-C; Plaintiff 29, Plaintiff 30, Plaintiff 31, Plaintiff 32; Plaintiff 33, Plaintiff 34, and Plaintiff 35); and Nonparty 1, Nonparty 2, and Nonparty 3, who were employed by the Defendant as a street cleaners before his retirement and retired as follows (hereinafter “Plaintiffs”), are members of the Korean Union Federation of Labor Unions under the Korean Federation of Workers’ Unions (hereinafter “Trade Union”).

On June 30, 2006, June 30, 2006, Plaintiffs 13, 18, 11, 15, and Nonparty 4, 6, 8, 16, 17, 19, 27, and deceased non-party 3 (the heir is Plaintiff 3, 34, and 35) on June 30, 2007, on July 15, 2007, Plaintiffs 1, 3, 5, 7, 21, 22, 25, 15, and 15, and on December 31, 2006, Plaintiffs 28, 201, 30, 208, 208, 31, 208, 208, 201, 31, 208, 208, 201, 308, 208, 201.

B. Conclusion and contents of the collective agreement

The labor union and the defendant to which the plaintiffs belong concluded a collective agreement in 2005 and 2007. According to each of the above collective agreements, wages, allowances, etc. shall be paid in accordance with the Guidelines for Compilation of Budget of the Ministry of Government Administration and Home Affairs and the collective agreement.

(c) Standards for compilation of budget for street cleaners of the Ministry of the Interior;

Based on Article 30(5) of the former Local Finance Act (wholly amended by Act No. 7663 of Aug. 4, 2005), the Ministry of the Interior (Ministry of the Interior and Safety), which provides that "The basic guidelines for the compilation of the budget for each fiscal year of local governments shall be prepared after hearing the opinions of the head of the relevant central administrative agency and shall be directed to local governments by July 31 of the previous year," and one of the basic guidelines for the compilation of the budget for local governments until 2005, "the guidelines for the formulation of the budget for the regional governments" was formulated and notified each local government including the defendant, and the defendant entered into a collective agreement with the trade union. However, as the Local Finance Act was completely revised on August 4, 2005 and abolished in Article 30(5) of the above Act, the Ministry of the Interior and Safety has not prepared the above guidelines for compilation of the budget, and, in particular, in 2008, it has been decided autonomously by local governments, but the defendant's previous records (hereinafter referred to as reference materials) shall be consistent with the guidelines.

D. The following contents relate to the Plaintiffs’ claims among collective agreements and guidelines between the Defendant and the Ministry of Government Administration and Home Affairs.

(i) year 2005;

A) Collective agreements in 2005

Article 20 (Work Hours)

(1) Work hours shall be 40 hours a week: Provided, That in cases of overtime work, overtime work allowances shall be paid separately in addition to the payment of overtime work allowances of two hours a day of the basic salary nature (it shall be applicable from July 1, 2005).

(2) The overtime work allowances of a basic level shall be paid on paid holidays, vacations, and weekly holidays.

(3) The working hours shall be determined as follows:

· Commencement and termination of work: Week 06:00-17:30 (hereinafter referred to as winter 17:00), Saturdays 06:0-10:00

- Recessing hours: Fluoring 08:0-09:30, Heavy 12:00-14:00 (former 13:30)

Article 21 (Compensatory Holidays)

The defendant shall hold paid holidays pursuant to the following subparagraphs:

(1) Week: One day per week.

(2) A new one day, a three-day, a three-day, a national holiday, a three-day, a national holiday, and a statutory holiday (three-day, a constitutional amendment, a light fluoring, aropium, aropium, aropium, a fluorium, aropium, an Fluorium, a child’s Day), a Workers’ Day, a Workers’ Day, a anniversary of the establishment of a trade union ( September 13, 199).

§ 22.(five-day work per week)

The defendant and the labor union shall have a 5-day work from July 1, 2005 to implement the 5-day work, and the Saturdays shall be paid holidays, and the holiday work allowances shall be paid when they work on a work basis: Provided, That the labor-management may agree on specific matters at the time of implementation.

Article 23 (Extended Work and Daytime Work)

(1) The defendant and trade union may extend working hours by prior consultation, taking into account multiple conditions of cleaning services.

② 유급휴일근무는 매일 조기청소(주·휴일 및 신정½, 설, 추석½ 기타 전체)로 하고, 휴일근로수당은 통상임금의 150%의 수당을 지급한다. 단, 휴일 조기 청소란 오전 6시부터 10시까지 4시간을 원칙으로 하되, 특별한 경우 노사협의로 처리한다.

(3) From July 1, 2005, Saturdays shall be paid holidays and work shall be 1/2, and the total number of persons may be adjusted according to the characteristics of each place of business.

Article 27 (Determination of Wages)

(1) Wages, various allowances, etc. shall be paid in accordance with the Guidelines for Budget Formulation of the Ministry of the Interior and collective agreements.

(2) Wages shall be paid at the beginning of each month, and the calculation period shall be from the first day of the current month to the last day.

(3) The daily wage system that has been paid for the standard working days shall be converted from the daily wage system to the monthly wage system.

Article 28 (Ordinary Wages)

The defendant and the trade union shall determine ordinary wages as basic wages, special work allowances, work encouragement allowances, household subsidies, and fixed meal expenses as ordinary wages. Sanitary allowances and continuous service additional charges shall endeavor to compute the ordinary wages in the future by the labor and management.

Article 33 (Welfare)

(1) The defendant may implement welfare programs within the scope of the budget compilation standards for street cleanerss.

(2) In order to maintain cleanliness and healthy physical management of its members, the defendant shall pay 100,000 won per month as bathing expenses (sanitary allowances).

(3) The defendant shall pay 80,000 won per month to the members of a trade union as risk allowances to the members of the trade union, including the payment of daily installments.

Article 44 (Validity Term)

The term of validity of this collective agreement shall be two years from the date of entry into force of the Convention, provided that matters relating to wages shall be one year.

Addenda

Article 4 (Period of Effectiveness)

The entry into force of this Convention shall continue from January 1, 2005 to December 31, 2006.

B) Standard for compilation of a deputy employment budget for street cleaners 2005

(a) Basic pay:

○ Standard Amount: 694,800 won per month.

Provided, That the basic salary of new street cleaners employed after the date of the notice of the standard of budget compilation shall be 631,700 won per month, and the self-determination shall be made within 【10% of the basic salary (568,500-694,800) in consideration of the intensity of work, workload, etc.

(b) Continuous service additional charges;

Persons subject to ○: Persons whose continuous service years exceed one year (class 30).

○ Formation Standard: 23,100 won per month of continuous service a year;

For continuing workers between one year and two years: 23,100 won per month;

Workers who have been employed for two to three years: 46,200 won per month;

Workers who have been employed for more than five years but not more than six years: 115,500 won per month;

Continuing workers between 10 and 11 years: 231,000 won per month;

Continuing workers between 20 and 21 years: 462,00 won per month;

30 or more consecutive workers: 693,000 won per month;

(c) Bonuses;

(1) Horse allowances.

Persons subject to ○: Former street cleaners (four times a year).

○ Amount: Monthly ordinary wage (basic pay + special work allowance + work encouragement allowance + household subsidy) x 200%

The method of payment: Article 5 of the Regulations on Allowances, etc. for Local Public Officials (3,6,9, and 12) shall apply mutatis mutandis.

(2) A good attendance allowance.

Persons eligible for ○: Former street cleaners (two times a year)

Amount paid: Monthly ordinary wages 】 Fixed-time allowance appropriated rate (100~200%)

○ Payment Method: Article 5 of the Regulations on Allowances, etc. for Local Public Officials (1 and 7 months) shall apply mutatis mutandis.

(3) Expenses for physical training:

Persons eligible for ○: Former street cleaners (five times a year)

○ Amount: Monthly ordinary wages 】 250%

○ Method of Payment: Monthly ordinary wage 】 50% 】 5 times (4, 5, 8, 10, 11);

(d) Fixed amount allowances;

Persons eligible for ○: Former street cleaners

○ Types and Criteria for Formation

The special duty allowances of KRW 20,000 per capita, such as the non-high-income family allowances of KRW 30,000 per month and the spouse's 30,000 per month, and the special duty allowances of KRW 90,000 per month included in the main sentence; KRW 70,000 per month;

(e) Welfare expenses;

Persons eligible for ○: Former street cleaners

○ Types and Criteria for Formation

Monthly ordinary wage of KRW 120,000 per month of transportation subsidy of KRW 80,00 per month of transportation subsidy of KRW 120,000 per month included in the main sentence x (monthly ordinary wage of KRW 70,000 per month x (monthly ordinary wage of KRW 150 per year): Monthly ordinary wage x 75% per year: 75% per annum: monthly ordinary wage x x 75% per annum: monthly ordinary wage 】 .

(f) Excess service allowances;

◆ 산정기초: 근로기준법의 관련규정에 의한 지급의무경비를 계상하되, 통상임금을 기준으로 산정

-ordinary wage = Basic pay + Special work allowance + Employment encouragement allowance + Family subsidy.

934,800 won = 694,800 won + 90,00 won + 70,000 won + 80,000 won

◆ 대상수당 : 시간외근무수당, 야간근무수당, 휴일근무수당, 연차유급휴가수당

(1) Work hours;

○ Formation Criteria: 12,400 won per day (based on 2 hours per day)

The calculation of the amount required for ○: 12,400 won ¡¿ 30 days ¡¿ 12 months ¡¿ the number of persons.

Method of ○ Payment: Payment according to the number of working days regardless of overtime work.

-overtime work allowances to be paid to street cleanerss are divided into work sites, and overtime work hours, such as preparation and finishing of work sites and moving hours to work sites, while it is difficult to confirm overtime work hours due to the characteristics of the work environment, the overtime work hours are paid in the inclusive wage form based on the number of working days for convenient calculation and boosting morale of street cleaners, considering the characteristics of the work environment.

- Therefore, overtime work allowances paid in the form of a comprehensive wage shall be on the basis of the 30th day of each month, except for the actual days of work, such as sick leave, absence from work, and leave (including special leave) under the Service Regulations (including paid leave);

(2) Night work allowances;

○ Formation Criteria: 16,500 won per day (50% of ordinary wages)

Calculation of the required amount: 16,500 won ¡¿ Number of days of annual night service (number of days of annual night service x number of persons).

* Night work: Work from 10 A.M. to 6 A.M. on the following day:

(3) Holidays work allowances.

○ Formation Criteria: 49,600 won per day (150% of ordinary wage)

Calculation of the required amount: Calculation and compilation of the number of days of holiday work in consideration of its own circumstances.

(4) Monthly paid leave allowances.

○ Formation Criteria: 33,000 won per day (100% of ordinary wages)

Calculation of the amount required for ○: 33,000 won ¡¿ six months ¡¿ number of persons;

* Payment by June 2005, prior to the introduction of a weekly 40-hour work system

(5) Annual paid leave allowances.

○ Formation Criteria: 33,000 won per day (100% of ordinary wages)

Calculation of the required amount: 33,000 won ¡¿ the number of applied days ¡¿ the number of persons;

○ Number of Applicable Days: Article 59 of the Labor Standards Act and Article 5 of the Addenda thereto.

The previous employer on June 30, 2004: the application of the previous provisions

- 8 days for those who have worked for at least 90 percent a year, and 10 days for those who have worked for one year, and 10 days for those who have worked for more than 2 years, the annual additional one day per year for each year;

2) Reference materials for budget compilation of personnel expenses for street cleaners in 2006

(a) Basic pay:

○ Standard Amount: 714,000 won per month.

Provided, That the basic salary of new street cleaners employed after the date of the notice of the standard of budget compilation shall be 649,000 won per month, and the self-determination shall be made within 【10% of the basic salary (584,00-694,800) in consideration of the intensity of work, workload, etc.

(b) Continuous service additional charges;

Persons subject to ○: Persons whose continuous service years exceed one year (class 30).

○ Formation Standard: 23,100 won per month of continuous service a year;

For continuing workers between one year and two years: 23,800 won per month;

Workers who have been employed for two to three years: 47,600 won per month;

Workers who have been employed for more than five years but not more than six years: 119,000 won per month;

Continuing workers between 10 and 11 years: 238,000 won per month;

Continuing workers between 20 and 21 years: 476,000 won per month;

30 or more consecutive workers: 714,000 won per month;

(c) Bonuses;

(1) Horse allowances.

Persons subject to ○: Former street cleaners (four times a year).

○ Amount: Monthly ordinary wage (basic pay + special work allowance + work encouragement allowance + household subsidy) x 200%

○ Method of Payment: Monthly ordinary wages 】 50% 】 4 times (3, 6, 9, and 12);

(2) A good attendance allowance.

Persons eligible for ○: Former street cleaners (two times a year)

Amount paid: Monthly ordinary wages ¡¿ 100~ 200%

○ Method: Monthly ordinary wages ¡¿ 50~100% ¡¿ twice (1/7 months).

* Less than a year shall be paid by 50%, but 100% shall be paid for at least 10 years in addition to 5% every year from one year to one year.

(3) Expenses for physical training:

Persons eligible for ○: Former street cleaners (five times a year)

○ Amount: Monthly ordinary wages 】 250%

○ Method of Payment: Monthly ordinary wage 】 50% 】 5 times (4, 5, 8, 10, 11);

(d) Fixed amount allowances;

Persons eligible for ○: Former street cleaners

○ Types and Criteria for Formation

The special duty allowances of KRW 20,000 per capita, such as non-high-income family allowances of KRW 30,000 per month and spouse, not more than four 30,000 per month, per capita, including children, etc. included in the head of the Gu; KRW 90,000 per month; KRW 70,000 per month;

(e) Welfare expenses;

Persons eligible for ○: Former street cleaners

○ Types and Criteria for Formation

Monthly ordinary wage of KRW 120,000 per month 110,000 per month of the fixed meal allowance of KRW 90,000 per month included in the main sentence x (monthly ordinary wage of KRW 70,000 per month x 150 per year in installments: Monthly ordinary wage x 75% per year: 75% per month x 75% per annum: monthly ordinary wage x x 75% per year.

(f) Excess service allowances;

◆ 산정기초: 근로기준법의 관련규정에 의한 지급의무경비를 계상하되, 통상임금을 기준으로 산정

-ordinary wage = Basic pay + Special work allowance + Employment encouragement allowance + Family subsidy.

984,000 won = 714,00 won + 90,000 won + 70,000 won + 110,00 won

◆ 대상수당 : 시간외근무수당, 야간근무수당, 휴일근무수당, 연차유급휴가수당

(1) Work hours;

○ Formation Criteria: 13,000 won per day (based on 2 hours per day)

The calculation of the amount required for ○: 13,000 won ¡¿ 30 days ¡¿ 12 months ¡¿ the number of persons.

Method of ○ Payment: Payment according to the number of working days regardless of overtime work.

-overtime work allowances to be paid to street cleanerss are divided into work sites, and overtime work hours, such as preparation and finishing of work sites and moving hours to work sites, while it is difficult to confirm overtime work hours due to the characteristics of the work environment, the overtime work hours are paid in the inclusive wage form based on the number of working days for convenient calculation and boosting morale of street cleaners, considering the characteristics of the work environment.

- Therefore, overtime work allowances paid in the form of a comprehensive wage shall be on the basis of the 30th day of each month, except for the actual days of work, such as sick leave, absence from work, and leave (including special leave) under the Service Regulations (including paid leave, paid leave, and retirement work leave through employment contracts and collective agreements);

(2) Night work allowances;

○ Formation Criteria: 17,400 won per day (50% of ordinary wages)

Calculation of the required amount: 17,400 won x the number of days of annual night duty (number of days of annual night duty x the number of persons).

* Night work: Work from 10 A.M. to 6 A.M. on the following day:

(3) Holidays work allowances.

○ Formation Criteria: 52,200 won per day (150% of ordinary wage)

Calculation of the required amount: Calculation and compilation of the number of days of holiday work in consideration of its own circumstances.

(4) Annual paid leave allowances.

○ Formation Criteria: 34,800 won per day (100% of ordinary wages)

Calculation of the required amount: 34,800 won ¡¿ the number of applied days ¡¿ the number of persons;

○ Number of Applicable Days: Article 59 of the Labor Standards Act and Article 5 of the Addenda thereto.

(iii) year 2007;

A) Collective agreement in 2007 (the collective agreement in 2005 and any provision number are different or partly amended shall be indicated under bottom, etc.)

XX(Work Hours)(the same as the year 2005)

Article 22 (Compensatory Holidays)

The defendant shall hold paid holidays falling under each of the following subparagraphs:

(1) Week: One day per week.

(2) A new one day, a three-day, a three-day, a national holiday, a statutory holiday, a temporary holiday, a worker's day, a labor union establishment anniversary ( September 13, each year).

§ 23.(five-day Work per week) (Article 22 of the Collective Agreement of 2005)

Article 24 (Extended Work and Daytime Work as Same as Article XXIV of Collective Agreement 23 of 2005)

Article 28 (Determination of Wages)(Article 27 of Collective Agreement, 2005)

Article 29 (Ordinary Wages)

The defendant and the trade union shall determine ordinary wages as basic wages, special work allowances, work encouragement allowances, household subsidies, and fixed meal expenses as ordinary wages. Sanitary allowances and continuous service additional charges shall endeavor to compute the ordinary wages in the future by the labor and management.

(Provided, That the fixed meal cost shall be applied to the standard of compilation in which the amount of wage is integrated based on reference materials for the compilation of personnel expenses for street cleaners in 2007.

Article 30 (Retirement Allowances) (The same as Article 29 of collective agreements of 2005)

Article 31 (Average Wages)(Article 30 of Collective Agreement of 2005)

Article 34 (Welfare)(Article 33 of the Collective Agreement of 2005)

Article 47 (Validity Term)

The term of validity of this Convention shall be two years from the date of entry into force of the Convention, provided that matters relating to wages shall be one year.

Addenda

Article 4 (Period of Effectiveness)

The entry into force of this Convention shall continue from January 1, 2007 to December 31, 2008.

B) Reference materials for budget compilation of personnel expenses for street cleanerss in 2007

(a) Basic pay:

○ Standard Amount: 742,000 won per month.

Provided, That the basic salary of new street cleaners employed after the date of the notice of the standard of budget compilation shall be 674,000 won per month, and the self-determination shall be made within 【10% limit (606,000 to 742,000) of the basic salary in consideration of the intensity of work, workload, etc.

(b) Continuous service additional charges;

Persons subject to ○: Persons whose continuous service years exceed one year (class 30).

○ Formation Standard: 24,700 won per month of continuous service a year;

For continuing workers between one year and two years: 24,700 won per month;

Workers who have been employed for two to three years: 49,400 won per month;

Workers who have been employed for a period between five and six years: 123,500 won per month;

Continuing workers between 10 and 11 years: 247,000 won per month;

Continuing workers between 20 and 21 years: 494,000 won per month;

30 or more consecutive workers: 741,000 won per month;

(c) Bonuses;

(1) Horse allowances.

Persons subject to ○: Former street cleaners (four times a year).

○ Amount: Monthly ordinary wage (basic pay + special work allowance + work encouragement allowance + household subsidy) x 200%

○ Method of Payment: Monthly ordinary wages 】 50% 】 4 times (3, 6, 9, and 12);

(2) A good attendance allowance.

Persons eligible for ○: Former street cleaners (two times a year)

Amount paid: Monthly ordinary wages ¡¿ 100~ 200%

○ Method of Payment: Monthly ordinary wages ¡¿ 50% to 100% 】 twice (1/7 months)

* Less than a year shall be paid by 50%, but 100% shall be paid for at least 10 years in addition to 5% every year from one year to one year.

(3) Expenses for physical training:

Persons eligible for ○: Former street cleaners (five times a year)

○ Amount: Monthly ordinary wages 】 250%

○ Method of Payment: Monthly ordinary wage 】 50% 】 5 times (4, 5, 8, 10, 11);

(d) Fixed amount allowances;

Persons eligible for ○: Former street cleaners

○ Types and Criteria for Formation

The special duty allowances of KRW 20,000 per capita, such as non-high-income family allowances of KRW 30,000 per month and spouse, not more than four 30,000 per month, per capita, including children, etc. included in the head of the Gu; KRW 90,000 per month; KRW 70,000 per month;

(e) Welfare expenses;

Persons eligible for ○: Former street cleaners

○ Types and Criteria for Formation

The New Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s Year’s

(f) Excess service allowances;

◆ 산정기초: 근로기준법의 관련규정에 의한 지급의무경비를 계상하되, 통상임금을 기준으로 산정

-ordinary wage = Basic pay + Special work allowance + Employment encouragement allowance + Family subsidy.

1012,00 won = 742,00 won + 90,000 won + 70,000 won + 110,000 won

◆ 대상수당 : 시간외근무수당, 야간근무수당, 휴일근무수당, 연차유급휴가수당

(1) Work hours;

○ Formation Criteria: 13,400 won per day (based on 2 hours per day)

The calculation of the amount required for ○: 13,400 won ¡¿ 30 days ¡¿ 12 months ¡¿ the number of persons.

Method of ○ Payment: Payment according to the number of working days regardless of overtime work.

-overtime work allowances to be paid to street cleanerss are divided into work sites, and overtime work hours, such as preparation and finishing of work sites and moving hours to work sites, while it is difficult to confirm overtime work hours due to the characteristics of the work environment, the overtime work hours are paid in the inclusive wage form based on the number of working days for convenient calculation and boosting morale of street cleaners, considering the characteristics of the work environment.

- Therefore, overtime work allowances paid in the form of a comprehensive wage shall be on the basis of the 30th day of each month, except for the actual days of work, such as sick leave, absence from work, and leave (including special leave) under the Service Regulations (including paid leave, paid leave, and retirement work leave through employment contracts and collective agreements);

(2) Night work allowances;

○ Formation Criteria: 17,900 won per day (50% of ordinary wages)

Calculation of the required amount: 17,900 won x the number of days of annual night service (the number of days of annual night service x the number of persons).

* Night work: Work from 10 A.M. to 6 A.M. on the following day:

(3) Holidays work allowances.

○ Formation Criteria: 53,700 won per day (150% of ordinary wages)

Calculation of the required amount: Calculation and compilation of the number of days of holiday work in consideration of its own circumstances.

(4) Annual paid leave allowances.

○ Formation Criteria: 35,800 won per day (100% of ordinary wages)

Calculation of the required amount: 35,800 won ¡¿ the number of applied days ¡¿ the number of persons;

○ Number of Applicable Days: Article 59 of the Labor Standards Act and Article 5 of the Addenda thereto.

E. From May 2006 to December 2008, the Defendant calculated and paid various allowances to the Plaintiffs based on the ordinary wages calculated in accordance with the above collective agreement and guidelines of the Ministry of Government Administration and Home Affairs.

F. Meanwhile, the proportion of their inheritance shares among the successors of Plaintiffs 28-A, Plaintiff 28-B, and Plaintiff 28 who were the deceased Nonparty 1’s co-Plaintiff Nonparty 1’s co-Plaintiff in the first instance trial is 3:2:2, and Plaintiff 29, Plaintiff 30, Plaintiff 31, and Plaintiff 32 are the deceased Nonparty 2’s successors, and their inheritance shares are 3:2:22, and Plaintiff 33, Plaintiff 34, and Plaintiff 35 are the deceased Nonparty 3’s successors as seen earlier.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 37, Gap evidence 66 through 96, Eul evidence 34 and 38 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

Despite the fact that the above 10 allowances are included in the ordinary wages under the Labor Standards Act, the above 10 allowances are not included in the calculation of ordinary wages, which serve as the basis for calculating various statutory allowances against the plaintiffs, and thus, they are invalid only in that they are set forth in the working conditions that do not meet the standard prescribed under the Labor Standards Act.

Therefore, the defendant is obligated to pay the difference between the above 10 allowances to the plaintiffs based on the ordinary wages calculated according to the standard of the Labor Standards Act on the premise that the above 10 allowances are included in the ordinary wages, and the overtime work allowances and the overtime work allowances.

3. Scope of ordinary wages under the Labor Standards Act, and whether the agreement on it is valid.

(a) Ordinary wages, such as unpaid allowances, as the basis for calculation;

Ordinary wages refer to ordinary wages that are regularly and uniformly paid for a fixed amount or quality of labor, and refers to ordinary wages that are paid on a fixed and average basis without recourse to actual working days or actual wages. The aforementioned uniform payment refers to not only the payment to all workers, but also the payment to all workers who meet a certain condition or standard. The term “specified condition” in this context refers to a fixed condition in light of the concept of ordinary wages that intends to calculate a fixed and average wage (see Supreme Court Decision 2004Da41217, Sept. 9, 2005, etc.). Under the foregoing legal principle, the issue of whether each of the Plaintiffs’ assertion constitutes ordinary wages is examined as to whether each of the wage items constitutes ordinary wages (see Supreme Court Decision 2004Da41217, Sept. 9, 2005).

(i)the continuous service charges;

According to the facts acknowledged above, the defendant paid a certain amount per year of continuous service to the street cleaners who have been employed for more than one year as additional continuous service surcharge, and it is reasonable to view that the additional continuous service surcharge paid as above is not a mutually advantageous consideration, but a fixed wage that has been paid periodically and uniformly every month, regardless of the actual work performance, and it is a fixed wage that has been paid periodically and uniformly (see Supreme Court Decision 2011Da22061, Sept. 8, 201).

(ii) pay, traffic assistance, sanitation allowances, and risk allowances, paid in Note 1, 2006;

According to the facts acknowledged above, since the defendant paid a monthly amount to all street cleanerss as salary (the amount paid in 2006), transportation subsidy, sanitation allowance, and risk allowance, it is reasonable to view that this is a fixed wage regularly and uniformly paid in return for work, and that this also is also included in ordinary wage (see the above Supreme Court Decision).

(iii) weather allowances, physical training expenses, and holiday leave expenses;

According to the facts acknowledged earlier, since the Defendant paid the weather allowance to all street cleaners four times a year, five times a year, and two times a year, based on certain standards, it is reasonable to view that this is a fixed wage paid periodically and uniformly as a price for work, and that this is also included in ordinary wages (see the above Supreme Court Decision).

(iv) a good attendance allowance;

According to the above facts, the defendant paid 50% or 100% of the monthly ordinary wage under a collective agreement to all street cleanerss in two installments a year, and paid 100% for not less than ten years by adding 50% for less than one year and 5% for each year from more than one year to 10% every year. Such a fixed wage is a fixed wage paid regularly and uniformly as compensation for work, and it is reasonable to view that this is also included in ordinary wage (see the above Supreme Court Decision).

(v)the agreed overtime work hours of two hours a day;

The Plaintiffs asserted that the overtime work allowance (over-time work allowance) for two hours a day as stipulated in Article 20 of the collective agreement in 2005 and 2007 is a nominal overtime work allowance, but its substance is an agreement allowance of the basic level for preserving the basic level rather than a statutory allowance prescribed in Article 56 of the Labor Standards Act, which stipulates that the overtime work should be paid in addition to 50/100 or more of the ordinary wage, and thus, the overtime work allowance for two hours a day should also be included in the scope of the ordinary wage which serves as the basis for calculating the unpaid statutory allowance, etc.

Article 20 of the collective agreement as seen earlier provides, “The hours of overtime work shall be 40 hours a week: Provided, That in the event of overtime work, overtime work allowances shall be separately paid (applicable from July 1, 2005) in addition to the payment of overtime work allowances for 2 hours a day of basic pay. According to the guidelines of the Ministry of the Interior, overtime work allowances shall be paid a fixed amount on the basis of 2 hours a day, but the payment method thereof shall be paid in accordance with the working environment’s characteristics, and the overtime work allowances shall be paid in the inclusive wage form in consideration of the working environment’s characteristics. The fact that the overtime work allowance is to be determined on the basis of 30 minutes a month is as seen earlier. Accordingly, even if the Defendant worked only for the Plaintiffs, the fact that overtime work allowances were paid for 2 hours a day, and if additional overtime work is done in addition to the contractual work hours, there is no dispute over the fact that the overtime work allowances were separately paid, or it is recognized by each entry in Gap evidence No. 1 through 7 and Eul No.

Therefore, in light of the legislative intent of the Labor Standards Act and the function and necessity of ordinary wages that recognizes the ordinary wage that serves as the basis for calculating overtime work allowances, night work allowances, holiday work allowances, etc. as a basis for guaranteeing the minimum amount of average wage, and in light of the legislative intent of which the Labor Standards Act recognizes the ordinary wage, such as overtime work allowances, night work allowances, and holiday work allowances, in order to constitute ordinary wage, certain wages belong to a fixed wage that is regularly and uniformly paid, and thus, it does not constitute ordinary wage as it does not constitute fixed wage (see, e.g., Supreme Court Decision 94Da19501, Feb. 9, 196). In this case, in full view of the following circumstances recognized by the evidence and the purport of the whole arguments as above, the Plaintiffs’ allegation in this part is rejected.

① The above overtime work allowance is paid as the bonus to solve the poor wage problem of street cleaners by 1987, but since 1988, it was paid with the name “overtime work allowance.” However, according to the Ministry of Government Administration and Home Affairs’s guidelines stipulating the specific characteristics, the above overtime work allowance is divided as one of the “overtime work allowance,” and overtime work hours such as preparation and completion of work, moving to work place, etc. are in exceptional times, while the above overtime work allowance is paid in the form of a inclusive wage, based on the number of working days for convenient calculation and boosting morale, considering the characteristics of the working environment, such as it is difficult to confirm the time of overtime work. Accordingly, the overtime work allowance in question cannot be deemed as a “overtime work allowance” in pure meaning, and it can be seen as an “agreement allowance” on the basis of which the above allowances are paid separately other than the contractual work hours under the collective agreement.

② However, ordinary wages serve as the basis for calculating premium pay, such as overtime work allowances, night work allowances, and holiday work allowances, and advance notice of dismissal. Thus, if overtime work allowances in question are included in ordinary wages, it would not only affect other premium pay, such as night work allowances and holiday work allowances, but also lead to contradictory outcomes that may affect the overtime work allowances separately paid by the Defendant.

③ According to the Ministry of the Interior’s guidelines, overtime work allowances in question are paid excluding the number of days of actual work, such as sick leave, absence from office, and leave (including special leave) on the working day specified in the service regulations (including single paid leave). Even according to a collective agreement, sick leave and absence from office shall not be paid. Accordingly, if the Defendant is not provided with work due to sick leave, absence from office, etc., it shall not be paid. Accordingly, as such, the wages for which payment is made and the amount of payment varies depending on the actual work performance cannot be deemed fixed wages, and thus, it cannot be deemed as ordinary wages.

(b) Validity of an agreement between labor and management that restricts ordinary wages;

In a collective agreement concluded between a trade union and the defendant, the payment of wages and allowances shall be made in accordance with the guidelines of the Ministry of the Interior of each year, and according to the guidelines of the Ministry of the Interior, the fact that the scope of ordinary wages, which are the basis for calculation of overtime work allowances, holiday work allowances, night work allowances, and annual leave allowances (hereinafter referred to as "excess work allowances"), is limited to basic pay (daily), special work allowances, employment encouragement allowances, and household support allowances, as seen earlier.

However, ordinary wages guarantee the minimum level of average wages, as well as allowance for overtime, night, and holiday work under Article 55 of the Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007; hereinafter the same), and are the basis for calculation of additional allowances for overtime, night, and holiday work under Article 32 of the same Act. Under each of the above provisions, there is no minimum standard other than premium or number of payment days. If an agreement to exclude various allowances that should be included in ordinary wages in light of the nature of labor-management’s agreement is acknowledged, the purport of each of the above provisions to stipulate that additional allowances shall be paid for overtime, night, and holiday work and pay wages to dismissed workers for a certain period of time, and thus, the agreement between labor-management and management to exclude them from ordinary wages under Article 22(1)2 of the Labor Standards Act is null and void (see, e.g., Supreme Court Decision 200Da17279 decided May 29, 194).

(c) Standard hours for the calculation of monthly ordinary wages;

The plaintiffs asserts that the monthly standard hours for calculating ordinary wages in this case should be applied not to 226 hours but to 209 hours.

Article 54 of the former Labor Standards Act provides that "at least one paid holiday per week shall be granted", and Articles 21 and 22 of the collective agreement of 2005 provide that "at least one paid holiday per week shall be deemed as a paid holiday", and as seen above, Article 20 of the collective agreement of 205 and Article 20 of the collective agreement of 207 stipulates that "at least 44 hours per week shall be in force until June 30, 2005, and at least 40 hours per week from July 1, 2005 (5 days per week) shall be held as a paid holiday, and at least 0 hours per week from 06:0 to 10:00, and at least 23:40 of the collective agreement of 205, the early cleaning shall be defined as "at least 40 hours per week".

However, the so-called “paid holiday” in which wages equivalent to contractual work hours are paid by recognizing the exemption from the duty to provide labor and the absence of actual provision of labor is recognized as only where the relevant Acts and subordinate statutes provide explicit provisions or separately provide them in collective agreements, employment rules, labor contracts, etc. In this case, as stated in the collective agreement, insofar as the collective agreement stipulates that monthly ordinary wages shall be paid at the 40-hour rate under the weekly 40-hour rate, it is reasonable to include the paid hours (in this case, on Sundays 8 hours and the paid hours at the 4-day rate per month rate per month) in the calculation of hourly ordinary wages by dividing the monthly ordinary wages by the number of contractual work hours per month (see Supreme Court Decision 90Meu12493, Dec. 26, 190). According to the evidence employed earlier, the defendant actually calculated the above hours as 226 hours and raised no objection to the calculation of monthly ordinary wages.

Therefore, in this case, the standard number of monthly ordinary wages of the plaintiffs is calculated as follows: ① 26 hours (=(the standard working hours 44 hours per week + Sundays 8 hours per week) ¡¿ (((365 days / 7 days) x (the period less than 12 months and less than 1 hours per week) / (the same shall apply hereinafter) 26 hours per month after July 1, 2005 / (the standard working hours 40 hours per week + 4 hours per Saturday + 8 hours per Saturday) / December) / December 36. It is evident that the plaintiffs' assertion in this part is not accepted).

D. Sub-committee

The Plaintiffs’ hourly ordinary wages are the amount of each corresponding ordinary wage indicated in the “Revised Ordinary ordinary wages” column in the attached Table 3, if the Plaintiffs’ hourly ordinary wages are calculated by dividing the amount of continuous service additional charges, the amount of travel subsidies, sanitation allowances, dangerous allowances, the weather allowances, the weather allowances, the overtime allowances, the physical training allowances, the physical training expenses, and the holiday leave expenses into 226 hours, which are the basis for calculating various statutory allowances against the Plaintiffs. Therefore, the Plaintiffs’ hourly ordinary wages are the same as the amount of each corresponding ordinary wage stated in the “Revised Ordinary ordinary wages” column in the attached Table 3. Therefore, barring any special circumstance, the Defendant is obliged to pay the difference between the holiday work allowances, the annual leave allowances, and the allowances paid during overtime hours, which are the basis for calculating various statutory allowances against the Plaintiffs.

4. Individual determination on claims for unpaid allowances

(a) Holiday work allowances;

Under the premise that the Plaintiffs agreed to recognize holiday work hours as eight hours by agreement between the labor and management, as long as the collective agreement requires the payment of holiday work allowance of 150% of the ordinary wage under the Labor Standards Act, the Plaintiffs shall pay as holiday work allowance the amount equivalent to 150% of the ordinary wage even in cases where the ordinary wage is calculated by the method prescribed by the Labor Standards Act. Thus, the Plaintiffs demanded the payment of the difference between the holiday work allowance of 8 hours and the actual receipt of the holiday work allowance based on the ordinary wage under the Labor Standards Act, while the Defendant claimed the payment of the difference between the holiday work allowance of 4 hours if the Plaintiffs work on holidays, the amount of the ordinary wage means not the daily ordinary wage, but the hourly ordinary wage, and the amount calculated by the rate of 150% of the hourly ordinary wage should be calculated by the actual working hour of 4 hours.

Article 23 and Article 24 of the collective agreement of 205 provides that “The paid holiday work shall be early cleaning, the paid holiday work shall be four hours from 6:00 a.m. to 10,00, and the paid holiday work allowance shall be 150% of ordinary wages.” According to the above, it is evident that the labor union and the defendant agreed to pay the paid holiday work hours for 4 hours. Meanwhile, considering the overall arguments as stated in Articles 38 through 65 of the collective agreement of this case, it is difficult to recognize that the Plaintiffs actually worked for 4 hours as stipulated in the above collective agreement of this case (the above provision of No. 38 and 65 of the Act, No. 98, and No. 100 through No. 22 of the Act, and it is difficult to recognize that the Plaintiffs agreed to pay the paid holiday work hours for 80% of the daily holiday work hours or 80% of the total paid holiday work hours as 40% of the above daily holiday work allowance.”

Rather, in full view of the contents of the Guidelines of the Ministry of Government Administration and Home Affairs, and the fact that it is a principle that only the payment of the holiday work allowance for the actual working hours, barring any special agreement, it is reasonable to deem that the language and text of the Guidelines of the Ministry of Government Administration and Home Affairs regarding the standard for the provision of the 150% of ordinary wage should be specified, but it is reasonable to deem that the Defendant paid the 8 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 4 hours of the 8 hours of the 8 hours

In accordance with the factual recognition and determination as above, the "Revised hourly ordinary wage" in the attached Table 3 is the same as the amount stated in the "Revised Holiday Work Allowances" in the attached Table 4, if a reasonable holiday work allowance to be paid to the plaintiffs on the basis of the hourly ordinary wage stated in the attached Table 3 (the number of days on which the plaintiffs worked is recognized by evidence No. 38 through 65) is the same as the amount stated in the "Revised Holiday Work Allowances" in the attached Table 4, and if the amount stated in the "actual Holiday Work Allowances" in the same list, which is the 8-hour holiday work allowance paid in each of the above amounts is deducted,

(b) Annual leave allowances;

As seen earlier, the Defendant is obligated to pay the difference between the annual leave allowance that was re-determined based on the ordinary wage under the Labor Standards Act and the annual leave allowance that the Plaintiffs received. As such, in calculating the annual leave allowance that ought to be paid to the Plaintiffs based on the daily ordinary wage as stated in attached Table 3, the “amended annual leave allowance” in attached Table 4 is the same as the amount indicated respectively. If the amount indicated in the “annual leave allowance” in attached Table 4, which is the annual leave allowance paid in each of the above amounts, is deducted from the amount indicated in the “annual leave allowance” in the same list, which is the annual leave allowance paid in each of the above amounts, the unpaid annual leave allowance that the Defendant is obligated to pay to the Plaintiffs is the same as the amount indicated in

(c) Difference of overtime work allowances;

In a case where the “agreed overtime work allowance” equivalent to two hours a day above is not recognized as ordinary wages, the Plaintiffs consider it as statutory allowances under the Labor Standards Act, and seek the difference between the agreed overtime work allowance fixed based on the ordinary wages under the Labor Standards Act and the overtime work allowance paid by the Plaintiffs, regarding the “agreed overtime work allowance” equivalent to two hours a day, the difference between the agreed overtime work allowance and the overtime work allowance paid by the Plaintiffs.

In light of the fact that overtime work allowances for two hours a day under a collective agreement provides that overtime work allowances for two hours a day are “basic pay”; that overtime work allowances for two hours a day were paid only when they worked; and that overtime work allowances for two hours a day were actually paid in addition to contractual work hours, if they were actually paid overtime work, they are paid separately, it is reasonable to see that overtime work allowances for two hours a day are under the pretext of overtime work allowances; but, in substance, allowances are not paid in addition to overtime work allowances for 50/10 or more of the ordinary wages under the Labor Standards Act (the purport that overtime work allowances are not paid in addition to 50/100 or more of the ordinary wages under the Labor Standards Act). As to the above agreed allowances, there is no minimum standard prescribed under the Labor Standards Act regarding overtime work allowances; therefore, in calculating the concept of overtime work allowances under the Labor Standards Act and other ordinary wages, the Plaintiffs’ claim for the difference between 20 hours a day and 200 hours overtime work allowances under the Labor Standards Act cannot be deemed valid, as stated in the Labor Standards Act.

(d) Calculation of the premium (50%) for non-regular and non-regular work hours;

Where holiday work overlaps with overtime work, it shall be calculated by adding both premium pay for holiday work and premium pay for overtime work (see Supreme Court Decision 90Da6545 delivered on March 22, 191, etc.).

However, in the instant case, pursuant to the collective agreement in 2005, the Defendant’s implementation of the 40-hour system from July 1, 2005 to 40-hour hours per week constitutes overtime work, and Saturdays and Sundays are paid holidays and paid holidays and overtime work in addition to 50/100 of ordinary wages. As seen earlier, in calculating the amount of holiday work allowance and overtime work allowance, 150% of ordinary wages is calculated for all overtime work, and in case of overtime work at the same time, 50% of ordinary wages should be added to the said hours.

In addition, under a collective agreement, the working hours exceeding 40 hours per week by the Defendant implementing a 40-hour system from July 1, 2005 fall under overtime work, and the facts that Saturdays and Sundays are paid holidays are as seen earlier. According to the statements in Gap’s Evidence Nos. 38 through 65, 100, and Eul’s Evidence Nos. 1 through 28, and 35 (including paper numbers), the hours worked exceeding 40 hours per week after the Plaintiffs opened the number of contractual working days from October 2005 to retirement are as stated in the separate sheet No. 2’s “the number of hours of overtime pay” column. Accordingly, since the Plaintiff’s additional work hours including the additional work charges in this case reduced to 32 hours per month, the Plaintiffs’ additional work hours shall be calculated by multiplying the Plaintiffs’ additional overtime work hours by the additional rate of overtime work hours from 0.5 hours per week to 40%, the Plaintiffs’ additional work hours shall be calculated by the additional rate of overtime work hours from 40.5% after the additional work hours per month.

(e) Conclusion

Therefore, the defendant is obligated to pay the plaintiffs the amount stated in the "temporary unpaid leave allowance" in the attached Table 4, the amount stated in the "temporary unpaid leave allowance", the amount stated in the "temporary unpaid leave allowance", and the "temporary unpaid leave allowance" in the same list as the "temporary unpaid leave allowance" added, and the damages for delay.

5. Conclusion

Therefore, the defendant's claim against the plaintiffs 1 and 14 days after the date of each retirement, 13, 18, and 25 from July 15, 2006, 207, 3, 4, 16, 17, 19, 27, 33, 34, and 35 from July 15, 2007 to 10, 208, 30, 28, 28, 28, 28, 28, 28, 28, 28, 28, 208, 30, 10, 20, 30, 10, 20, 30, 10, 20, 30, 10, 20, 30, 10, 30, 10, 10, 10, 30, 28, 28, 28, 28, 28, 28.

Judges Yellow-Hahn (Presiding Judge) (Presiding Judge) and Park Jin-jin

Note 1) From the year 2007, the Defendant is the person who was found to have been recognized as the scope of ordinary wages by absorbing the fixed meal cost.

(2) The plaintiff asserts that the number of monthly fixed working hours is 209 hours as long as Article 23 (Extended Work and Daytime Work) of the collective agreement in 2005 provides that the number of weekly working hours and Sundays working hours shall be 4 hours, respectively, through the purport of the claim of the first instance court and the application for the cause of the claim (reduction) as of April 2, 2009, so that there is no dispute over the prescribed working hours of the above month through the preparatory documents submitted by the court of the first instance. However, since there is no evidence to support that the above confession was against the truth and due to mistake, the above confession revocation is not effective, and the above assertion is without merit in light of the above judgment.

3) Article 37(2) of the Labor Standards Act, and Article 18 of the Enforcement Decree of the same Act.