The validity of "established Rules for Calculation of Average Wages" that have not been agreed upon by the labor-management council and has not been agreed by the applicable persons.

According to the evidence No. 1 (Calculation Rules of Average Wages), the defendant corporation changed the established rules as of April 1, 1973, and provided a restrictive provision as to the calculation of average wages by "the basic wage for the calculation of retirement allowances shall be the total amount of the basic wage and the allowances paid in accordance with the employee wage rules for the three months prior to the initial date of calculation," but there is no proof that the revised rules for the calculation of average wages as of April 1, 1973 by the defendant corporation did not undergo consultation with the labor-management council and obtained consent from those subject to the application. Thus, it is invalid.

Articles 6 and 34 of the Trade Union Act, Articles 3 and 95 of the Labor Standards Act

Plaintiff 1 and 78 others

Plaintiff 80

Korea Coal Corporation

Seoul Central District Court (74Gahap446) in the first instance trial (74Gahap446)

All appeals by plaintiffs 80 and the defendant are dismissed.

Of the costs of appeal, the part arising between the plaintiff and the defendant shall be borne by the Dong plaintiff, and the remaining costs of appeal shall be borne by the defendant.

피고는 원고 1에게 금 106,802원, 원고 2에게 금 226,316원. 원고 3에게 금 276,980원, 원고 4에게 금 19,058원, 원고 5에게 금 19,764원, 원고 6에게 금 131,366원 원고 7에게 금 143,491원, 원고 8에게 금 154,954원, 원고 9에게 금76,527원, 원고 10에게 금 182,806원, 원고 11에게 금 17,306원, 원고 12에게 금 147,246원 원고 13에게 금 124,021원, 원고 14에게 금 237,524, 원고 15에게 금 110,564원, 원고 16에게 금 232,964원, 원고 17에게 금 70,602원, 원고 18에게 금 13,042원, 원고 19에게 금 95,440원, 원고 20에게 금 140,808원, 원고 21에게 금 131,612원, 원고 22에게 금 127,636원, 원고 23에게 금 169,314원, 원고 24에게 금 190,856원, 원고 25에게 금 70,969원, 원고 26에게 금 207,258원, 원고 27에게 금 84,722원 원고 28에게 금 71,339원 원고 29에게 금 99,050원, 원고 30에게 금 86,963원, 원고 31에게 금 125,637원, 원고 32에게 금 154,878원, 원고 33에게 금 73,089원, 원고 34에게 금 139,176원, 원고 35에게 금 59,172원, 원고 36에게 금 69,476원, 원고 37에게 금 111,960, 원고 38에게 금 135,545원, 원고 39에게 금 127,633원, 원고 40에게 금 89,734원, 원고 41에게 금 130,946원, 원고 42에게 금 38,855원, 원고 43에게 금 209,572원, 원고 44에게 금 209,315원, 원고 45에게 금 17,887원, 원고 46에게 금 268,261원, 원고 47에게 금 227,617원, 원고 48에게 금 63,232원, 원고 49에게 금 217,250원, 원고 50에게 금 52,964원, 원고 51에게 금 76,359원, 원고 52에게 금 99,398원, 원고 53에게 금 225,649원, 원고 54에게 금 141,389원, 원고 55에게 금 153,760원, 원고 56에게 금 73,330원, 원고 57에게 금 60,431원, 원고 58에게 금 158,101원, 원고 59에게 금 47,790원, 원고 60에게 금 13,608원, 원고 61에게 금 185,817원, 원고 62에게 금 62,470원, 원고 63에게 금 63,242원, 원고 64에게 금 141,557원, 원고 65에게 금 83,151원, 원고 66에게 금 79,778원, 원고 67에게 금 118,810원, 원고 68에게 금 150,022원, 원고 69에게 금 333,550원, 원고 70에게 금 134,584원, 원고 71에게 금 44,002원, 원고 72에게 금 127,804원, 원고 73에게 금 107,727원, 원고 74에게 금 234,371원, 원고 75에게 금 62,470원, 원고 76에게 금 57,960원, 원고 77에게 금 151,481원 및 이에 대한 각 1972.10.15.부터, 원고 78에게 금 126,039원 및 이에 대한 1973.3.23.부터, 원고 79에게 금 79,778원 및 이에 대한 1974.10.15.부터, 원고 80에게 금 489,271원 및 이에 대한 1973.6.12.부터 각 완제시까지 연 6푼의 비율에 의한 금원을 지급하라

The part of the judgment of the court below against the plaintiff shall be revoked.

The defendant shall pay to the plaintiff 12,126 won with an annual interest rate of 6% from June 12, 1973 to the full payment.

Of the appeal costs, the part arising between the plaintiff and the defendant is assessed against the defendant and a provisional execution declaration.

The defendant shall revoke the part against the defendant in the original judgment. The plaintiffs' claims are dismissed. The court costs are assessed against the plaintiffs in both the first and second instances.

1. The plaintiffs joined the defendant corporation on each date as shown in the attached Table 1 (2) as shown in paragraph (3) of the same Table and retired from the defendant corporation on each date listed in paragraph (4) of the same Table. In accordance with the Labor Standards Act, the defendant corporation has provisions on retirement pay in accordance with the provisions on retirement pay in accordance with the company salary regulations, and calculates the total number of days of retirement pay as stated in attached Table 1 (1) and attached Table 1 (1) by distinguishing the number of days of continuous service as stated in attached Table 2 when paying retirement pay to the plaintiffs according to those provisions, and calculates the total number of days of retirement pay as stated in paragraph (8) of the same Table by dividing the total amount of basic pay and other allowances paid to the plaintiffs for three months prior to the retirement date by the total number of days of that period, and then calculates the total amount of retirement pay as stated in paragraph (5) of the same Table after deducting the income tax of Class A from the total amount of bonus paid to the plaintiffs as stated in paragraph (6) of the same Table.

2. The plaintiff's attorney's bonus that the plaintiffs received while serving in the defendant corporation is also the wage that the plaintiffs received as an object of work. Thus, the defendant corporation should calculate and pay the retirement allowance without including the bonus as above, although it should be calculated in calculating the average wage. Thus, the defendant corporation has a duty to additionally pay the difference after calculating the retirement allowance based on the average wage calculated by including the bonus to the plaintiffs. As such, the defendant corporation's attorney cannot be viewed as wages due to its nature, but the defendant corporation's attorney's bonus cannot be viewed as wages, but the defendant corporation's employee's wage provision or retirement allowance provision was established on the premise that the bonus should not be included in calculating the average wage. Thus, the defendant corporation's claim for the calculation of the retirement allowance based on the average wage that the retired worker did not include the bonus in calculating the average wage has already been established in custom, so the defendant corporation's claim for the calculation of the retirement allowance should be based on the defendant corporation's average wage, so the defendant corporation's claim for the calculation of the retirement allowance should be without merit.

Article 14 of the Labor Standards Act provides that “The average wages of the Corporation shall be calculated on the basis of the average wages of the Corporation No. 1 and No. 1 and No. 6 (Organizational Convention), and that “the average wages of the Corporation shall be calculated on the basis of no. 1 and no. 4” shall be calculated on the basis of no. 1 and no. 3 months before the end of the year.” However, according to the above provision of the Labor Standards Act, the provisions of Article 25 of the Labor Standards Act provides that “the average wages of the Corporation shall be calculated on the basis of no. 1 and no. 4 months after the end of the year” and the provision of the Labor Standards Act provides that “the average wages of the Corporation shall be calculated on the basis of no. 1 and no. 3 months after the end of the year” shall be calculated on the basis of no. 4 months after the end of the year. The average wages of the Corporation shall be calculated on the basis of no. 1 and no. 4 months after the end of the year.”

(A) However, although the defendant's attorney should naturally incorporate the bonus into the calculation of the average wage of the plaintiffs, it is argued that the defendant would be exempted from the liability to pay the retirement allowance as the employer inasmuch as the defendant has paid much more amount than the minimum amount of retirement stipulated in Article 28 of the Labor Standards Act as the amount of retirement allowance of the plaintiffs, so long as the defendant has paid the amount exceeding the minimum amount of retirement stipulated in Article 28 of the Labor Standards Act. Thus, the defendant's attorney's assertion is without merit, since the defendant's obligation to pay the retirement allowance does not arise pursuant to Article 28 of the Labor Standards Act, but is based on

(B) In addition, the defendant Corporation established the rules on retirement allowances under the premise that bonuses are excluded as a matter of course from the calculation of the average wage, which is the basic wage of the retirement allowances, and argued that since the above average wage is calculated with the exception of bonuses, and the implementation of the rules on retirement allowances is established in custom, the above average wage is established. Thus, the defendant Corporation did not provide evidence to acknowledge this, and the testimony of non-party 1 and non-party 2 of the court below's witness and non-party 2 is insufficient to recognize it, and there is no evidence sufficient to acknowledge it differently, and even if the rules on retirement allowances were established under the premise that bonuses are not included in the concept of average wage at the beginning of the above provision, this alone does not affect the objective interpretation of the nature of bonuses or the rules on retirement allowances, and even if the plaintiffs did not waive the remaining retirement allowances, as long as they did not give up the retirement allowances, the defendant Corporation cannot refuse to pay the difference between the above retirement allowances and the retirement allowances.

(C) The defendant's attorney's defense that the remaining plaintiffs' claim for retirement benefits except the plaintiff 78 and 80 had expired by the expiration of the two-year extinctive prescription period. Thus, according to the defendant's evidence Nos. 1-1 to 82 (Retirement Benefit Account Statement), it can be acknowledged that the above plaintiffs retired from the defendant Corporation on September 30, 1972. Thus, the defendant's claim for additional payment of retirement pay should be terminated by the two-year extinctive prescription period as of September 30, 1974. However, it is obvious that the plaintiffs received in the court room on September 29, 1974. Thus, this defense is without merit.

(D) In addition, the defendant's attorney argues that the plaintiff 80 could not include bonuses in the average wage, which is the basis for the calculation of the retirement allowance of that person, because he did not receive bonuses within 3 months from the time when the reason for the payment of retirement allowance occurred. Thus, as the plaintiff had already been recognized on July 13, 1957 and served for 15 years and 11 months, the average wage, which is the basis for the calculation of the retirement allowance, refers to the average wage under the wage rules of the defendant corporation, which is the basis for the calculation of the retirement allowance, and is not determined by the reason that the plaintiff was unable to receive the bonus for a specific period or was unable to receive the bonus within 3 months before his retirement. Thus, this dispute is without any further determination, and therefore, it is recognized in accordance with subparagraph 4-20 (detailed statement) and subparagraph 3 (written statement of bonus payment), and subparagraph 9 (written statement of the retirement allowance in the statement of accounts under subparagraph 20 (written statement).

3. Therefore, in calculating the average wage, which serves as the basis for calculating the amount of the plaintiffs' additional retirement allowance, it is clear that the average wage included in the bonus described in paragraph (9) that the plaintiffs received within 3 months prior to their retirement is included in paragraph (10) and the total amount of the retirement allowance to be actually paid to the plaintiffs as stated in paragraph (11) of the same Table, is calculated by multiplying the number of days of each retirement allowance specified in paragraph (11) by the number of days of continuous service according to the plaintiffs' continuous service according to the number of years of continuous service, the total amount of the retirement allowance to be paid to the plaintiffs as stated in paragraph (12) of the same Table, calculated by deducting Class A employment income and local taxes as stated in paragraph (13) of the same Table, which is then deducted from the amount of each retirement allowance already paid to the plaintiffs at the time of their retirement.

4. Accordingly, the defendant is obligated to pay the retirement allowance to the plaintiffs within 14 days from the date of retirement with the additional retirement allowance as stated in paragraph (14) of the same Table and the delay damages at the rate of 6% per annum from the day of each written order to the day of full payment, in accordance with the retirement allowance regulations for employees of the defendant corporation (the labor contract entered into between the public corporation and the defendant corporation, which is applicable to the commercial activities of the defendant corporation and engages in extracting minerals, shall be governed by the Commercial Act, and the labor contract entered into with the plaintiffs, which is a supplementary commercial activity of the defendant corporation, shall be governed by the commercial rate as to the retirement allowance obligations under the labor contract, since all of the claims of the plaintiffs except the plaintiff 80 are reasonable, and the remaining claims of the plaintiff 80 shall be accepted within the limit recognized above, and they shall be dismissed. Accordingly, this appeal is justified and without merit, and the costs of appeal shall be borne by each losing party and the application for a declaration of provisional execution shall be without merit. It is so decided as per Disposition.

Judges Park Woo (Presiding Judge)