[1] In a case where a business performance evaluation performance bonus is continuously and regularly paid, and a payment condition is determined and thus an employer is obligated to pay, whether it is included in the wage constituting the basis for calculating the average wage (affirmative), and whether it is not deemed that it is not paid as the remuneration for work solely on the ground that the payment or payment rate may vary according to the business performance evaluation result (negative)

[2] In a case where the issue is whether vehicle operation support expenses paid by the Corporation to class 1 employees belonging to Gap constitutes average wage, the case affirming the judgment below that the vehicle operation support expenses that were paid in lump sum regardless of whether the vehicle was owned or the actual business trip was made, are the objects of work, which constitute average wage

[1] Article 2(1)5 and 6 of the Labor Standards Act, Article 48(1) and (10) of the Act on the Management of Public Institutions, Article 27(4) of the Enforcement Decree of the Act on the Management of Public Institutions / [2] Article 2(1)5 and 6 of the Labor Standards Act

[1] Supreme Court Decision 2001Da53950 Decided October 23, 2001 (Gong2001Ha, 2529) Supreme Court Decision 2015Du36157 Decided October 12, 2018 (Gong2018Ha, 2117) Supreme Court Decision 2018Da231536 Decided December 13, 2018 (Gong2019Sang, 276)

See Attached List of Plaintiffs (Law Firm Ansan, Attorneys Kim Jong-hoon et al., Counsel for the plaintiff-appellant)

Korea Manpower Agency (Attorney Kim Won-won et al., Counsel for the defendant-appellant)

Busan High Court Decision 2017Na57113 decided January 24, 2018

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Wages, which are the basis for calculating average wages, are money and valuables paid by an employer to an employee as remuneration for work, and refer to the payment of which is made continuously and regularly to an employee and whose obligation to pay is deleted by collective agreements, rules of employment, wage regulations, employment contracts, labor contracts, labor practices, etc. If management evaluation performance rating has been continuously and regularly paid and the obligation to pay to an employer has been determined, it shall be deemed to be included in the wages which are the basis for calculating average wages, given that the nature of the wage paid as remuneration for work has the nature of the wage. Even if the payment or payment rate may vary according to the results of management performance evaluation, it cannot be deemed that management evaluation performance and payment have not been paid as remuneration for work (see, e.g., Supreme Court Decision 2015Du36

The lower court determined that the Defendant’s annual salary system’s enforcement rules, based on its stated reasoning, determined that the payment criteria, payment methods, and timing, etc. are determined on the premise that the Defendant is obligated to pay the management evaluation performance rating to the Defendant, and the Defendant paid the employees under its jurisdiction without exception to the management evaluation performance rating according to the management evaluation rating, constitutes the average wage

In light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine on average wages, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The lower court determined that the instant vehicle operation support expenses that the Defendant paid monthly to class 1 employees regardless of whether the Defendant was holding a vehicle or having been traveling an actual business trip constituted the average wage as an employee eligible for work.

Examining the relevant legal principles and evidence admitted by the lower court, the lower court did not err by misapprehending the legal doctrine regarding average wages or by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Jung-hwa (Presiding Justice)