wages of 2016Da207638 (principal claim)

2016Da207645 (Counterclaim taxi commission)

1. A;

2

3

4

E Co., Ltd. (formerly: F Co., Ltd.)

Seoul High Court Decision 2015Na2065781 (main office), 2015Na2065798 Decided January 13, 2016

(Counterclaim) Judgment

July 24, 2019

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In full view of the contents and structure of the provisions related to the Constitution and the Minimum Wage Act, the legislative intent and legislative process of Article 6(5) of the Minimum Wage Act (hereinafter “Special Provision”), the purport of the provisions of the Passenger Transport Service Act, the public nature of taxi transport business, and the circumstances before and after the agreement on the reduction of contractual work hours, etc., where the employer agreed with taxi drivers’ trade union to reduce only contractual work hours without changing the actual work environment or operating hours, in order to increase the external shape of fixed wage per hour calculated on the basis of contractual work hours with the intent to avoid the fixed wage, excluding the wage calculated on the basis of output, under the fixed taxi commission scheme, to avoid the amount of the fixed wage calculated on the basis of contractual work hours (see Supreme Court en banc Decision 2016Da2451, Apr. 18, 2019).

2. A. According to the reasoning of the first instance judgment as cited by the lower court and the record, the following facts are revealed. (1) Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is a company engaging in the taxi transport business, and Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) is an employee employed by the Defendant or retired taxi driver.

2) The Plaintiffs paid a certain amount of transportation income to the Defendant under the name of the taxi commission, and paid the remainder of transportation income other than this, and received wages in the form of the so-called fixed taxi commission scheme, which is the method of receiving fixed wage from the Defendant. 3) The Special Provision, amended by Act No. 8964, Mar. 21, 2008, was implemented on July 1, 2010, and excluded wages based on the output within the scope of wages included in the minimum wage within the scope of wages included in the minimum wage.

4) On the other hand, on February 4, 2006, the Defendant concluded a collective agreement in 2006 with the G Trade Union Gyeonggi orchard Branch (hereinafter “instant Trade Union”) and agreed to set contractual work hours at seven to twenty percent per day.

5) On June 29, 2010, H Council entered into a wage agreement in 2010, which set the contractual work hours at 6 hours and 40 minutes a day with the Suwon-si Branch of the G Trade Union Regional Headquarters, and the Defendant and the Plaintiffs were employed.

6) On May 9, 2011, the Defendant entered into a wage agreement in 2011 between the instant union and changed working hours to four hours and twenty minutes a day, and on March 6, 2012, concluded a wage agreement in 2012 with the FF trade union, and maintained working hours for four hours and twenty minutes a day. There is no evidence that there was a change in the actual working form or working hours during the period of maintenance due to a change in the fixed working hours.

B. Examining such factual basis in light of the legal doctrine as seen earlier, the part on contractual work hours under the wage agreement in 201 and 2012, with the intent to avoid the fixed wage, excluding the wage calculated on the basis of output, according to the enactment of the Special Provision, to increase the fixed hourly wage calculated on the basis of contractual work hours with the intent to avoid below the minimum wage, is likely to be deemed null and void as an evasion of the law to avoid the application of the Special Provision, which is a mandatory law.

Nevertheless, as indicated in its holding, the lower court determined that the agreement on contractual work hours under each wage agreement in 2011 and 2012 cannot be deemed null and void against the purport of the Minimum Wage Act on the grounds that the agreement on the reduction of contractual work hours was reached on voluntary and genuine intent for the benefit of both workers and the Defendant, who are likely to suffer from the increase in income due to the increase in taxi commission following the enactment of the Special Provision. In so doing, the lower court erred by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The

3. Conclusion, without examining the remaining grounds of appeal, the judgment of the court below is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Lee Dong-won

Justices Park Jung-hwa-hwa