2013Da10017 Wages

As shown in the attached list of plaintiffs.

Sungnam City bus Co., Ltd.

Seoul High Court Decision 2012Na38980 Decided December 21, 2012

August 20, 2014

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Legal principles concerning ordinary wages

In order for a certain wage to belong to ordinary wages, it must be paid fixedly. The fixed wage refers to the minimum wage that a worker who has worked on a voluntary day, regardless of the name of the wage, is entitled to receive automatically and definitely in return for the daily work even if he/she retires on the next day. Thus, if a worker provided contractual work on a voluntary day, regardless of the fulfillment of additional conditions, it can be deemed that the payment was planned to be made as a matter of course and the amount determined in advance is fixed.

Therefore, in cases where a certain amount of wages is calculated on a daily basis according to the number of working days by prescribing to pay a certain amount of wages for each working day, the amount is different depending on the number of actual working days, but if a worker provides contractual work on a voluntary date, the certain amount of wages is determined to be paid. As such, such wages constitute fixed wages.

However, wages paid only when a certain number of working days is satisfied are paid in addition to the provision of contractual labor. Whether such conditions are fulfilled is an uncertain condition that cannot be determined at the time of providing overtime, night, or holiday work on a voluntary date, and thus, it cannot be said that the said conditions have fixedness (Supreme Court Decision 201Da1448, Dec. 2, 2013).

18. Supreme Court en banc Decision 2012Da89399 Decided January 18, 201

2. As to the grounds of appeal Nos. 1 and 2

According to the reasoning of the judgment below, the court below recognized the fact that the defendant paid the bonus of 30,00 won per month to the person who worked for more than 6 months among the employees including the plaintiffs, and the continuous service allowance of 10,000 won per year to the person who has worked for more than 1 year, and the above bonus and continuous service allowance of 10,000 won per year, as prescribed by the seafarer's wage agreement, and determined that the payment of the bonus and continuous service allowance of 13 days or more per year does not constitute ordinary wages, since the payment of the bonus cannot be deemed to be a fixed wage based on actual service record.

In light of the above legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the scope of ordinary wages as alleged in the grounds of appeal.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below recognized the fact that the defendant paid the transportation cost of KRW 2,00 per day to all crew members including the plaintiffs as prescribed by the wage agreement, and determined that such transportation cost does not constitute ordinary wages, since it does not constitute a fixed wage which is regularly and uniformly paid as a result of changing the actual working days or work performance according to the actual working days

However, in light of the above facts in light of the legal principles as seen earlier, the above transportation cost is different depending on the actual number of working days, but it is a fixed wage, the amount of which is confirmed to be paid only when a contractual work is provided, and thus, the court below erred by misapprehending the legal principles as to the scope of ordinary wages, as alleged in the ground of appeal, thereby affecting the conclusion

4. Conclusion

The part of the lower judgment against the Plaintiffs is reversed, and that part is remanded to the lower court 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 Lee Sang-hoon

Justices Shin Young-young

Justices Kim Yong-deok

Justices Kim So-young

A person shall be appointed.