Plaintiff

Budget Transport Corporation

March 5, 2014

Daejeon District Court Decision 2011Da11061 Decided March 20, 2013

1. The plaintiff's appeal and the plaintiff's claim (9,046,093 won and damages for delay) added at the trial are all dismissed.

2. Of the judgment of the first instance court, the part against the Defendant ordering the Plaintiff to pay in excess of 14,371,139 won and 5% per annum from November 1, 2011 to March 20, 2013, and 20% per annum from the next day to the date of full payment, shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

3. The defendant's remaining appeal is dismissed.

4. The total costs of the lawsuit shall be divided into two parts, and one part shall be borne by the plaintiff, and the remainder by the defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 36,512,882 won with 20% interest per annum from November 1, 2011 to the date of full payment (the plaintiff added 9,046,093 won at the trial and damages for delay).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 8,603,279 won with 5% interest per annum from November 1, 2011 to March 20, 2013, and 20% interest per annum from the next day to the day of complete payment.

Defendant: The part against the Defendant in the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding thereto is dismissed.

1. Basic facts

A. The Defendant is a company with the purpose of bus passenger transport business, and the Plaintiff is a person who served as a driver for 6,698 days from April 9, 1993 to August 11, 201.

B. Article 44 of the collective agreement concluded with the Defendant’s trade union on February 1, 2007 (hereinafter “instant collective agreement”) provides for the payment of workers’ retirement allowances as follows.

A company shall pay the retired employee for 30 days' ordinary wages as a retirement allowance for one year.

· Ordinary wage shall be the daily amount.

- The company shall pay 25 days in addition to a retirement allowance for a person who has served for five years in full, and five days in addition to a retirement allowance every year for a person who has served for five years or more.

C. A collective agreement concluded with the Defendant’s trade union on July 6, 201 with the effective date of July 1, 2011 (hereinafter “instant amended collective agreement”) stipulated as follows.

○ Article 44 (Retirement Allowance) Company shall pay to retired employees the amount equivalent to 30 days’ average wage under Article 8 of the Act on Guarantee of Retirement Benefits of Workers as retirement allowance for one year.

○ Article 81 (Non-performance of Conditions) No such working conditions as may be obtained on the ground of the conclusion of this Convention shall be lowered.

○ Article 85 (Retroactive Application of the Implementation Date) On April 5, 2011, the General Agreement before this Convention is terminated on April 5, 2011 by the Budget and Traffic Branch of the National Transport Industry Trade Union due to dissolution, and the New Agreement shall be retroactively applied from July 1, 201.

D. From June 8, 201, the Defendant entered into a wage agreement to determine daily allowances for the pertinent year with the first trade union each year. According to the wage agreement entered into between the Defendant and the trade union on June 8, 2011 and applied as of February 1, 2010, the amount of daily allowances (basic pay + overtime allowances + weekly holiday allowances) for drivers in 2010 is KRW 82,980, and continuous service allowances are KRW 15,000 per year for continuous service (the Plaintiff’s continuous service allowances at the time of retirement are KRW 270,000 per month), and the amount of allowances for service on board is KRW 4,680 per day.

E. The Defendant paid monthly pay to one worker the monthly basic salary, continuous service allowance, weekly leave allowance, overtime allowance, work on board allowance, overtime work allowance, etc. as the monthly salary.

F. In addition, the Defendant paid daily expenses to drivers on the day of their attendance in cash for expenses incurred in performing their work on board, such as heavy food, tobacco value, locker, drinking water, etc., and the daily expenses paid at the time of the Plaintiff’s retirement are KRW 7,000.

G. The Defendant calculated the Plaintiff’s retirement allowance at KRW 47,662,070 ( = average wage at the time of retirement 86,576.37 x 30 x 698/365) in accordance with the instant revised collective agreement and paid it to the Plaintiff.

H. Meanwhile, the Defendant Company decided to pay the daily amount of 62 days per annum as bonus for driving workers in installments on four occasions a year. Accordingly, in the case of 2011, the daily amount of annual bonus 82,980 won x 62 ± 365 ± 14,095 won. However, the wage agreement at the time of the amendment of the instant collective agreement was changed to the person who has worked for at least nine days per month in full under the wage agreement at the time of the amendment of the instant agreement.

I. Meanwhile, on July 30, 1997, the Defendant entered into an agreement on the payment of overtime allowances with the labor union (hereinafter “instant agreement”), and accordingly, paid 2,000 won per day to all drivers of the workplace in the monthly pay. From January 1, 2005, the Defendant deducted 1,648,000 won from the monthly wage or bonus that was paid to the Plaintiff from January 1, 2005 to May 31, 208 on the ground that the cause for payment of overtime allowances under the instant agreement ceased to exist.

The following agreements shall be concluded that overtime allowances shall be paid as overtime allowances for excess hours of the Convention due to the extension and operation of a terminal (including the end of operation) of an Eup in the budget:

1. To pay an excess exceeding 2,00 won per day in excess of the current 13 hours;

2. Criteria for payment: From August 1, 1997, the payment shall be made in a lump sum at the time of the payment of wages, and the payment shall be made at the time of continuous occurrence.

3. When the operating hours are reduced to not more than 13 hours due to the increase in the number of vehicles or the adjustment of operating hours, this Convention shall be terminated immediately.

(j) On June 1, 2008, the Defendant agreed with the labor union on May 31, 2009 that the payment of overtime work allowances should not be made retroactively as of June 1, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 5 through 7 (including branch numbers, hereinafter the same shall apply) and the purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

(1) The meaning of “ordinary wage shall be the daily wage” stipulated in the collective agreement of this case does not mean that the ordinary wage, which serves as the basis for the calculation of the retirement allowance, is not the amount of daily wage on the written wage agreement concluded between the defendant and the trade union, but shall be the ordinary wage as stipulated in Article 6 of the Enforcement Decree of the Labor Standards Act (hereinafter “legal ordinary wage”). However, the plaintiff’s retirement allowance shall be calculated on the basis of not only the daily wage under the wage agreement but also the daily wage, including bonuses, work on board, continuous service allowances, and daily allowances. The defendant is obligated to pay the plaintiff the unpaid retirement allowance of KRW 25,338,789 and the unpaid retirement allowance of KRW 9,046,093, which is included in the ordinary wage, and the defendant shall also pay the plaintiff the amount of overtime allowance from January 1, 2005 to May 31, 2008 without the plaintiff’s consent to the deduction of KRW 168,008.

B. Defendant’s assertion

(1) The wages, which serve as the basis for the calculation of a retirement allowance under the instant revised collective agreement, are changed to the average wage rather than the ordinary wage. The Plaintiff’s retirement allowance calculated on the basis of the average wage is justifiable, and even if it is based on the family’s ordinary wage, it does not belong to the ordinary wage because it is not paid periodically or uniformly. Even if it is included in the family’s ordinary wage, it is reasonable that, as the purport of the Supreme Court Decision 2012Da89499 Decided that it does not include a regular bonus under an implied agreement between labor and management, if the demand for an additional wage would cause serious operational difficulties, it is contrary to the principle of good faith. Thus, if the operation hours were reduced to less than 13 hours due to the increase or adjustment of operation hours, the Plaintiff’s retirement allowance should not be included in the ordinary wage, and the Plaintiff’s retirement allowance was returned to the Defendant from 100 to 1005.5.16.05.05.05.05.05.

3. Determination

A. Determination on a retirement allowance claim

(1) Scope of application of the instant collective agreement and amended collective agreement

(A) Retirement allowances are money having the nature of wages that an employer has continued to work for a certain period and paid to a retired employee as compensation for his/her continuous service, and specific claims for retirement allowances arise only with the requirement that the employee is retired upon the completion of his/her continuous service (see Supreme Court Decision 95Da19256, May 14, 196, etc.). Thus, even if a collective agreement was concluded with respect to the terms and conditions of the calculation of retirement allowances prior to retirement, the amended collective agreement, barring special circumstances, shall have effect on individual workers who had been employed prior to the amendment of the collective agreement.

However, Article 81 of the revised collective agreement of this case provides that "All the working conditions acquired on the ground of the conclusion of this Convention shall not be lowered," while retirement allowances are the follow-up wages that accrue only after retirement as above, the current rules of retirement allowances stipulate the payment conditions in advance and employees expect or trust that they will receive retirement allowances under the current provisions of retirement allowances for their work until retirement. This has certain property value for workers even though the existence of the fact of retirement is not confirmed. In light of this, if the conditions for the calculation of retirement allowances under Article 44 of the revised collective agreement of this case are unfavorable to workers compared to those for the calculation of retirement allowances under Article 44 of the revised collective agreement of this case, it can be deemed that workers have reduced the working conditions obtained on retirement allowances under Article 44 of the collective agreement of this case. Accordingly, Article 44 of the amended collective agreement of this case does not affect the period of service before the date of its revision in accordance with Article 81 of the amended collective agreement of this case.

On the other hand, Article 44 of the amended collective agreement of this case provides that the average wage for 30 days shall be paid as retirement allowance for 1/1 year, while Article 44 of the amended collective agreement of this case shall be paid as retirement allowance for 30 days of ordinary wage for 86,576.37 won, as seen above, the plaintiff's average wage for 86,576.37 won, and the plaintiff's ordinary wage for 96,660 won is calculated pursuant to Article 44 of the amended collective agreement of this case as follows, as well as the plaintiff's retirement allowance calculated pursuant to Article 44 of the amended collective agreement of this case as well as the retirement allowance for 96,660 won calculated pursuant to Article 4 of the amended collective agreement of this case. Article 44 of the amended collective agreement of this case provides that the retirement allowance of this case shall be paid separately for 30 days other than retirement allowance every 5-day retirement allowance for 5 days by adding it to the retirement allowance under Article 44 of the collective agreement of this case.

Therefore, Article 44 of the instant amended collective agreement shall apply to the tenure of office from July 6, 201, which is the date of the amendment of the instant collective agreement, to the date of retirement, while Article 44 of the instant collective agreement shall apply to the tenure of office from April 9, 1993 to July 5, 201, which is the date of the amendment of the instant collective agreement, when calculating the Plaintiff’s retirement allowance.

(B) On April 5, 201, the Defendant asserts that the instant collective agreement is not likely to be applied to the Plaintiff, as the trade union was dissolved and abolished on April 5, 2011.

However, even if the collective agreement in this case was invalidated due to the dissolution of the trade union as above, the part concerning wages, retirement allowances, working hours, and other individual labor conditions in the above collective agreement still remains as the content of the employment contract of the worker who was subject to the above collective agreement, unless the new collective agreement, employment rules are concluded, prepared, or obtained the consent of individual workers, and thus, the employer and workers are regulated (see Supreme Court Decision 98Da13747 delivered on June 9, 200). Thus, the collective agreement before the amendment in this case with the new trade union still remains valid until the defendant enters into the collective agreement in this case with the new trade union, and thus, the defendant's assertion on a different premise is without merit.

(2) Interpretation of “daily amount” under Article 44 of the instant collective agreement

Article 44 of the collective agreement before the amendment of the instant case provides that "ordinary wage shall be the daily wage in calculation of retirement allowance." The meaning of "ordinary wage" here is a statutory ordinary wage prescribed in Article 6 of the Enforcement Decree of the Labor Standards Act. However, it is reasonable to interpret that "ordinary wage shall be the daily wage which is not the regular wage or the monthly wage," as the case where the unit of statutory ordinary wage shall be the daily wage which is not the regular wage or the monthly wage (see Supreme Court Decision 2011Da46517 decided September 29, 201 and the Daejeon District Court Decision 2010Na7056 decided May 11, 201).

(3) Scope of ordinary wages

(A) Next, the Supreme Court Decision 2012Da89499 Decided whether the ordinary wage includes bonuses, continuous service allowances, allowances for work on board, and daily expenses, and the welfare expenses are not subject to the ordinary wage calculation. The daily expenses, as seen above, are paid in cash to the drivers working on the day, under the pretext of expenses incurred in performing their work on board, such as food, tobacco value, locker, drinking water, etc., and thus, they constitute welfare expenses, which are not subject to the ordinary wage calculation.

However, continuous service allowances and work allowances are not welfare expenses so long, there is no evidence to prove that the Defendant agreed on the calculation of ordinary wages, except this, and the Defendant’s bus driver’s service allowances are uniformly paid when the Defendant’s bus driver worked for one day. Since continuous service allowances are fixed wages paid periodically and uniformly to the employee who has served for one year or more, regardless of the actual work performance, and are paid periodically and uniformly each month, they are included in ordinary wages. The above continuous service allowances paid to the Plaintiff constitute fixed wages that are paid periodically and uniformly to the employee who has served for a certain period of service, regardless of the actual work performance. Thus, regardless of the actual work performance, they constitute ordinary wages.

(B) The defendant's bonus is to be paid only to the person who has worked for 9 days or more on the 18th day of each month. Thus, it cannot be viewed that regular and uniform payment is not ordinary wages. However, according to the evidence Nos. 9, 10 and 11, it is difficult for the defendant company to have a strict work provision, such as that the employee of the defendant company should be dismissed from his work schedule at least twice a month without permission, so it is difficult for the defendant company to have a worker who has worked for 9 days or more in the 18th day of each month. Since the plaintiff continued to receive bonus, it is recognized that the bonus has been paid periodically and uniformly. Meanwhile, according to the purport of the whole argument No. 12, No. 15 and No. 18, the bonus has been excluded from the calculation of ordinary wages until 200 million won, and the defendant has already paid the total amount of bonuses to 200 million won or more including the retirement allowance of 200 million won from the 206th day of each month.

(C) Ultimately, it is reasonable to calculate the amount including continuous service allowances, work allowances, and work allowances, except daily allowances and bonuses in the calculation of ordinary wages.

(4) Amount of ordinary wages in this case

The scope of the Plaintiff’s ordinary wage recognized accordingly is as follows:

(A) The daily amount of 82,980 won under the wage agreement

(B) An allowance of 4,680 won per day;

(C) 9,000 won per day of continuous service allowances (=270,000 won/30 days) totaling 96,660 won

(5) The calculation of retirement pay from April 9, 1993 to July 5, 2011

As seen above, in calculating the Plaintiff’s retirement allowance for the service period from April 9, 1993 to July 5, 201 (before the conclusion of the instant revised collective agreement), the daily ordinary wage is KRW 82,980 per day, KRW 4,680 per day, KRW 96,660 per day, and KRW 96,60 per day, and the Plaintiff’s retirement allowance for the service period is KRW 61,739,257 (=96,660 x 35 x 6,61 x 365 x 365 x 365).

(6) Retirement allowances under the instant revised collective agreement

According to Article 2(2) of the Labor Standards Act, if the average wage of a worker is less than the ordinary wage, such ordinary wage shall be deemed the average wage. The Plaintiff’s average wage at the time of retirement is less than 96,660 won which is the ordinary wage of 86,576.37 won as above. As such, in calculating the Plaintiff’s retirement allowance for the service period from July 6, 201 to August 11, 201, the average wage shall be deemed 96,660 won.

Accordingly, when the plaintiff's retirement allowance for the above service period is calculated, 293,952 won (=96,660 won 】 30 days 】 37 days / 365 days, and 365 days less than won).

(7) Retirement allowances that the plaintiff has to receive additionally

Therefore, the Defendant’s legitimate retirement allowance to be paid to the Plaintiff is KRW 62,03,290 (= KRW 61,739,257 + KRW 293,952). Thus, barring special circumstances, the Defendant is obligated to pay the Plaintiff the remaining KRW 14,371,139, after deducting KRW 47,662,070 from the retirement allowance already paid to the Plaintiff, barring special circumstances.

B. Determination on the claim for overtime allowance

However, the defendant's overtime work allowance under the Convention seems to have been paid on the ground that the working hours per se of the defendant's driver, and it is reasonable to interpret that "if working hours are reduced to less than 13 hours due to increase or adjustment of working hours, such agreement shall be terminated immediately." Thus, it is reasonable to interpret that the defendant would terminate the above agreement according to his/her intention of termination in a case where working hours are uniformly reduced. Thus, in order to deduct overtime work allowance paid from the worker from overtime work allowance paid from January 1, 2005 to May 31, 2008, it should be proved that the driver's working hours were uniformly reduced to less than 13 hours, and that the worker agreed to deduction of the above overtime work allowance individually. However, the plaintiff's assertion that the defendant agreed to pay the above overtime work allowance from 11,12, and 13 days (the plaintiff's signature was forced by the defendant, but no evidence exists to acknowledge it) before the retirement of 10.58 days prior to the retirement of the plaintiff.

C. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff the unpaid retirement allowance of KRW 14,371,139 and to pay damages for delay at each rate of 20% per annum under the Civil Act from November 1, 2011 to March 20, 2013, which is deemed reasonable for the defendant to dispute as to the existence and scope of the obligation of performance of this case, as requested by the plaintiff, from November 1, 201 to the day following the delivery date of a copy of the complaint of this case, as requested by the plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed for lack of merit. The judgment of the court of first instance ordering payment in excess of the above cited part has been partially different from this conclusion and thus, the part in excess is revoked, and the plaintiff's claim as to the revoked part is dismissed, and the remaining appeal of the defendant, the plaintiff's appeal, and the plaintiff's additional claim in the court of first instance are dismissed for lack of merit, and it

Judges Choi Jin-jin (Presiding Judge) Jin-young Kim Byung-hun