207Na 17465 Wages

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

[Defendant-Appellant] Plaintiff U

X Heavy Industries Co., Ltd.

Attorney Shin-chul et al., Counsel for the defendant

Busan District Court Decision 2006 Ghana513136 Decided November 2, 2007

April 18, 2008

May 30, 2008

1.The judgment of the first instance shall be modified as follows:

A. The defendant shall pay to the plaintiff Eul 510,304 won, 457,180 won, 560,616 won to the plaintiff Eul, 44,05 won to the plaintiff Eul, 513,741 won to the plaintiff Eul, 39,993 won to the plaintiff Eul, 580,928 won to the plaintiff Eul, 528,741 won to the plaintiff Eul, and 20% interest per annum from the next day to May 30, 2006 to the day of complete payment.

B. All remaining claims of the plaintiffs are dismissed.

2. Of the total litigation costs, 2/3 shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to each of the plaintiffs as stated in the separate sheet 1.(Omission) amount of claim (1) amount in the separate sheet 8% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff extended its claim in the first instance).

2. Purport of appeal

A. Plaintiffs D and E

Of the judgment of the court of first instance, the part against plaintiffs D and E shall be revoked. The defendant shall pay to plaintiffs D 4,315 won, 9,061 won, and 20% interest per annum from October 2, 2007 to the date of complete payment.

B. The part against the defendant among the judgment of the court of first instance against the defendant is revoked, and all of the plaintiffs' claims against the losing part are dismissed.

1. Basic facts

The plaintiffs are those who work as the defendant's employees. The defendant's employer and the time when the defendant worked outside normal working hours during the period from September 2003 to August 2006 are as stated in the column of overtime working hours in attached Table 2.(Omission) C of attached Table 2.3. At the same time, the above extended working hours constitute overtime work hours, and at the same time, the fact that the hours falling under holidays or night work are equal to the hours set in the column of working hours in attached Table 5 of the same Table is either disputed between the parties or can be acknowledged by the purport of oral argument.

2. The parties' assertion

A. The plaintiffs excluded personal pension subsidies from ordinary wages, which serve as the basis for the calculation thereof, when the defendant pays overtime, night, holiday work allowances, and bonuses to the plaintiffs. The individual pension subsidies are periodically and uniformly paid fixed wages which correspond to ordinary wages in its objective nature. Therefore, the defendant must calculate overtime, night, holiday work allowances, and bonuses based on the inclusion of personal pension subsidies in ordinary wages. Thus, the defendant must pay overtime, night, holiday work allowances, and bonuses to the plaintiffs, i.e., the balance remaining after deducting the hours of overtime, night, holiday work allowances, and bonuses already paid from overtime, night, holiday work allowances, and bonuses. (ii) The defendant must pay overtime allowances, night work allowances, and bonuses as stated in attached Form 1. (vii)

B. On this basis, the Defendant asserts that the personal pension subsidy was introduced in terms of the welfare for the stabilization of the livelihood after retirement without direct or close connection with the provision of labor, and that even if the personal pension subsidy falls under the ordinary wages under the Labor Standards Act, the bonus should be calculated according to the collective agreement between the Defendant and the labor union pursuant to the agreement between the labor union, so the individual pension subsidy does not constitute the ordinary wages that are the basis for the calculation of bonuses.

3. Determination

(a) Facts of recognition;

(1) From March 1996, the Defendant decided to subscribe to a personal pension for all workers, but decided to provide 40,000 won per month as a personal pension subsidy, from that time, and paid 50,000 won per month as a personal pension subsidy by entering it in the benefit schedule. Since August 196, 1996, the Defendant paid 50,000 won per month as a personal pension subsidy. The Defendant collected withholding tax on the above personal pension benefit scheme.

The recipient of the above personal pension subsidy is an employee, a leave of absence, a person reinstated, and a new employee (in the case of a person under the age of 20 as of the date of subscription, a separate short-term insurance product for each month), a non-standing employee, a commission of non-standing work, a one-year contract entrustment, a probationary employee, and a dispatched employee, and the period of support is up to the time the person eligible for support retires.

(2) During the period from September 2003 to August 2006, the Defendant paid the Plaintiffs overtime, night, holiday work allowances, and bonuses based on ordinary wages under the collective agreement of the Defendant company excluding the above individual pension subsidies.

(3) The collective agreement provisions of the defendant company are as follows.

30 Wages Composition

1. Wages shall be paid to members, which are classified as follows:

(1) Ordinary wages (basic pay, continuous service allowances, special allowances, design allowances, production encouragement allowances, and family allowances)

(2) Overtime allowances and allowances.

(3) Bonuses.

(4) Retirement allowances.

2. With respect to the ordinary wages and allowances referred to in the preceding paragraph, separate benefit regulations shall apply; and

Article 33 (Reward) A company shall pay bonuses to increase the productivity and morale of its members as follows:

1. Regular bonuses;

(a)Payments: 600 per cent of ordinary wages stipulated in Article 30 of the present Convention shall be the amount, and at the time of the payment of bonuses, 20 per cent of the basic level of ordinary wages (based on 10 per cent payment) shall be additionally paid;

(b) Time to pay: 100% shall be paid as of the end of February, April, June, August, August, October, October, and December, respectively. Persons who hold office eligible for payment: 100% of workers (based on payment date) who have worked for at least two months after their entry, and 10% of working days for less than two months after their entry, payment on a daily basis, temporary retirement, reinstatement, suspension from office, and retirement: Payment on a daily basis of working days as of two months; and

(d)be paid irrespective of urgency. For the purpose of Article 39 (Labor Hours) the term “working hours” means actual working hours, including time for inquiries, cleaning, and other activities or for rest, education, meetings, events and work evaluations which are related to or agreed between labor and management;

1. In principle, actual working hours of members shall be eight hours a day and forty hours a week, excluding break time;

2. Saturdays that cannot work due to the reduction of working hours shall be days off, and paid for eight hours;

Article 47 (Overtime Work at Night and Holiday Work)

1. A company may, if necessary for the performance of its duties, have its members work overtime, night or holiday work;

5. Work hours, and holiday work;

1) The overtime work allowances shall be paid 50% of ordinary wages, and holiday work (08:00 17:00) shall be paid 50% of ordinary wages, 100% of overtime work (17:0 to 22:00) and 150% of overtime work (2:00 to 06:00 of the following day) shall be paid.

2) The settlement work day (day) shall be paid overtime work allowances for 40 hours a month on the basis of overtime work for one hour a day (17:00~18:00). The company shall be paid on every day a day on Sundays 49 (day off). The company shall be designated on every day’s holiday as paid holiday (Provided, That for those who do not open a week, day off).

[Ground of recognition] Facts without dispute, Gap 2's evidence 1, 2, Gap 3's evidence, Eul 2's evidence 1 to 10, Eul 4 and 5's evidence, the purport of the whole pleadings

B. Determination on overtime (longing), night, and holiday work allowances

(1) Whether a private pension subsidy constitutes ordinary wages

(A) Article 56 of the Labor Standards Act (hereinafter “the Act”) provides that “an employer shall pay overtime work, night work, or holiday work more than 50/100 of ordinary wages in addition to ordinary wages.” Article 6 of the Enforcement Decree of the Labor Standards Act (hereinafter “Enforcement Decree”) provides that “The Act and this Decree” refer to hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract amount to be paid to an employee for contractual or total work on a regular and uniform basis.”

Therefore, in calculating the wages for overtime work, night work, or holiday work, the ordinary wages that are the basis thereof shall conform to the ordinary wages prescribed by the law and the Enforcement Decree, and in cases where the collective agreement provides the company's ordinary wages by an agreement between labor and management, it is not permissible to set the company's ordinary wages more disadvantageous than the standard prescribed

According to the collective agreement of the defendant company, ordinary wages shall be calculated as "basic wages, continuous service allowances, special allowances, design allowances, production encouragement allowances, and family allowances," but if there are various allowances other than the above items, and if they fall under ordinary wages prescribed by the Enforcement Decree, they shall be included in ordinary wages in calculating overtime work, night work, or holiday work allowances (as seen in the front and rear, bonuses shall be calculated on the basis of ordinary wages in the Act and the Enforcement Decree, etc.). Thus, the scope of ordinary wages in calculating bonuses and the scope of ordinary wages in calculating overtime work, night work, or holiday work allowances are separate issues).

(B) Therefore, in calculating the Plaintiffs’ wage for overtime work, night work, or holiday work, it shall be deemed that the Plaintiffs’ claim can be seen as ordinary wage under the Act and the Enforcement Decree. As seen earlier, the Defendant subscribed to a personal pension insurance instead of a personal pension insurance policy by entering into a separate short-term insurance policy instead of a personal pension policy as the insured, and paid 50,000 won monthly insurance premium on behalf of the employees. Since the amount was collected through withholding the income tax, even if the personal pension subsidy was not paid to those who are not regular employees such as non-regular employees, it shall be deemed that the personal pension subsidy was paid periodically and continuously as the remuneration for work to all regular employees. Accordingly, it constitutes wages for regular employees, and as such, given that a certain amount was paid each month, it constitutes ordinary wage for the total amount of monthly wage as defined in the Enforcement Decree.

Therefore, when calculating ordinary wages in calculation of overtime work, night work, or holiday work allowance, personal pension subsidies should be included.

(2) The hourly ordinary wage of a private pension subsidy

(A) In order to calculate the number of overtime, night, and holiday work allowances, the method should be calculated by multiplying the Plaintiffs’ overtime, night, and holiday work hours by the amount of the hourly ordinary wage and a certain premium rate. Accordingly, we examine whether the KRW 50,000 per month of the individual pension subsidy in the instant case is the Plaintiffs’ hourly ordinary wage.

(B) According to the Enforcement Decree, the hourly ordinary wage of a monthly wage is “amount calculated by dividing the monthly wage by the standard number of hours for the calculation of the monthly ordinary wage” (Article 6(2)4 of the Enforcement Decree). The standard number of hours for the calculation of the monthly ordinary wage is “time calculated by dividing the weekly ordinary wage by 12 hours calculated by multiplying the standard number of hours for the calculation of the weekly ordinary wage by the average number of weeks per year” (Article 6(2)4 of the Enforcement Decree). The standard number of hours for the calculation of the weekly ordinary wage is “the hours calculated by adding the weekly ordinary wage and the hours paid in addition to the contractual hours under Article 2(1)7 of the Act” (Article 6(2)3 of the Enforcement Decree).

The Defendant’s collective agreement provides that the contractual working hours per week shall be 40 hours and Saturdays and Sundays shall be paid holidays. As such, the standard number of hours for calculating the weekly ordinary wages shall be 56 hours (the prescribed working hours per week + 40 hours per week + 16 hours per hour on Saturdays and Sundays (8 hours X2) paid in addition to contractual working hours, and the standard number of hours for calculating the monthly ordinary wages shall be 243.3 hours (56 hours X (365 days: 7 days): 12 and small number of days).

Therefore, the Plaintiffs’ monthly ordinary wage should be the amount calculated by dividing the monthly ordinary wage by the above 243.3 hours, but the Defendant is the person who divided the monthly ordinary wage into 240 when calculating the hourly ordinary wage for the monthly ordinary wage for the monthly ordinary worker. Thus, the amount of the hourly ordinary wage for the individual pension subsidy is the amount of KRW 33,208 (50,000/240, and a small number of decimal places) when calculating the hourly ordinary wage by the above method more favorable to the Plaintiffs.

(3) Examining the premium rate needed to calculate the number of overtime work hours, night work hours, and night work hours. If the number of overtime work and overtime work overlap, the premium rate for overtime work and overtime work should be calculated respectively (see, e.g., Supreme Court Decision 90Da6545, Mar. 22, 191). Under a collective agreement and Article 56 of the Labor Standards Act, the premium rate for overtime work, night work, and holiday work hours should be paid in addition to the ordinary wage by 50%. Thus, in calculating the amount of overtime work allowances and night work allowances, the premium rate for overtime work hours should be calculated by 150% of the hourly ordinary wage for all overtime work hours, and in cases of overtime work or night work, the premium rate shall be calculated by 50% of the hourly ordinary wage for overtime work hours as overtime work or night work, and in cases of overtime work at the same time, 50% of the hourly ordinary wage for overtime work hours as overtime work.

(4) Calculation

The number of the plaintiffs' overtime, night, and holiday work allowances calculated in accordance with the above method (the hours X 208.33 X) shall be as follows: (4) The number of the plaintiffs' overtime work allowances in attached Table 2. Table 2. 4; and (6) the amount as stated in the column of the port overtime work allowances and the overtime work allowances for night work and holidays (the amount less than the won). Determination on bonuses shall be made.

(1) The plaintiffs asserts that the calculation of the plaintiffs' bonus should include the individual pension subsidy for ordinary wages.

According to the defendant's collective agreement provisions, the defendant should pay 600% of the ordinary wages under Article 30 of the collective agreement to workers as regular bonuses. Since Article 30 of the collective agreement provides that ordinary wages shall be limited to "basic wages, continuous service allowances, special allowances, designing allowances, production encouragement allowances, and family allowances", the issue is whether the ordinary wages, which are the basis for calculating bonuses, can be the same as the concept of ordinary wages under the Labor Standards Act, therefore, whether the ordinary wages, which are the basis for calculating bonuses, can be said to be the issue.

(2) Therefore, there is no provision on wages, etc., which is the basis of the payment of the ordinary wages under the law and the Enforcement Decree in the calculation of the bonus, in a case where bonus regulations or bonuses are paid under the law and the Enforcement Decree. Therefore, bonus, if there is a collective agreement between the labor and management, shall be in accordance with such provisions, and if there is no such agreement, the employer shall determine the bonus

It should be considered that payment should be made.

As seen earlier, the Defendant’s collective agreement provides that “1. Wages” shall be classified as follows: ① Ordinary wages (basic pay, continuous service allowance, special allowance, design allowance, production encouragement allowance, family allowance), ② overtime allowance and allowance, ③ bonus, 4) retirement allowance, 2) ordinary wages under Article 30(1) of the above collective agreement provides that “ordinary wages” under Article 30(1)1 of the above collective agreement and separately provides “over-time allowances and allowances” under subparagraph 2 of Article 30 of the above collective agreement shall be classified as follows: Provided, That the term “over-time allowances and allowances” under Article 30(1)1 of the above collective agreement refers to ordinary wages within the meaning of ordinary wages under the Act and the Enforcement Decree thereof, but the term “basic salary, continuous service allowance, special allowance” under the same subparagraph means ordinary wages under Article 30(1)1 of the above collective agreement;

Allowances, design allowances, production encouragement allowances, family allowances, etc. are not merely listed in the examples of various kinds of benefits constituting ordinary wages, and ordinary wages under a collective agreement are composed of “basic wages, continuous service allowances, special allowances, design allowances, production encouragement allowances, and family allowances”. If a collective agreement should be based on ordinary wages, it shall be deemed that a labor-management agreement has been reached to comply with the collective agreement.

Therefore, in paying bonuses, the defendant company should pay the ordinary wages under Article 33 of the collective agreement of the defendant company, i.e., "basic wages, continuous service allowances, special allowances, design allowances, promotional allowances for production place, family allowances," and the individual pension subsidies are not included in the above items, so this part of the plaintiff's assertion that the individual pension subsidies should be included in the ordinary wages at the time of paying bonuses is not acceptable.

3. Conclusion

Therefore, the defendant is an overtime, night work allowance of 50,00 won for personal pension subsidy of 50,00 won, as shown in the separate sheet No. 2. 7. Table No. 7. 510,304, 457,180 won for the plaintiff Eul, 560,616 won for the plaintiff Eul, 44,055 won for the plaintiff Eul, 513,7410 won for the plaintiff Eul, 502,908 won for the plaintiff Eul, 59,93, 580,928, and 528,741 won for the plaintiffJ, and 528,741 won for the plaintiff J. 1. 3, 206, and 50,528,741 won for each of these cases, and 200% of the above decision of the court below to accept the defendant's claim for partial delay damages from the next day of November 3, 2006 to 25.

Provisions of the presiding judge;

Judges Jeong-jin

Judges, Senior Jins