(영문) 대구지방법원 김천지원 2007.7.27.선고 2006가합299 판결

1. The defendant shall pay to the plaintiff (designated party) 133, 730, 562 won with 5% interest per annum from March 4, 2006 to July 27, 2007 and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff (designated party)'s remaining claims are dismissed.

3. 1/2 of the costs of lawsuit is assessed against the Plaintiff (Appointed Party). The remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant (the appointed party) of the plaintiff 272, 720, 744 won and the complaint of this case

shall pay 20% interest per annum from the day following the service of a duplicate to the day of full payment.

(d).

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 3-1, 2, 7.12, 13, 4-1 through 8, Eul evidence 1, 2, and Eul evidence 3 through 6, respectively:

A. The Defendant is a company running urban bus transportation business, and the Plaintiff (designated parties) and the designated parties (designated parties) together with the Plaintiffs “the Plaintiffs” and “the Plaintiffs” are drivers who work or worked for the Defendant company that stated that they are “Plaintiff 000” individually.

B. The major contents of the collective agreement, employment rules, and wage-related labor-management agreement between the defendant company and the working workers, including the plaintiffs, are as follows from 2003 to 2006.

(1) Work hours and working hours shall be, in principle, 8 hours a day and 44 hours a week, but may be extended by a labor-management agreement in consideration of the special circumstances of public-interest transportation business, 19 days a month, and in principle, shift work on a 2-day work-day work and a 1-day work-day work. (2) The wage of a wage system driver shall be based on a monthly basic wage system, but the basic daily wage shall be calculated based on the hourly wage determined in the labor-management agreement, and the monthly basic wage shall be calculated based on it. The above regular wage is based on the calculation basis of various allowances. From June 1, 2002 to May 31, 2006, the wage system driver shall be determined by the wage agreement (hereinafter referred to as the "basic wage").

shall be as follows:

① From June 1, 2002 to May 31, 2003, KRW 3,385.3 won (2) From June 1, 2003 to May 31, 2004; KRW 3,514.95 won (2) From June 1, 2004 to May 31, 2004; KRW 3,644.65 won (4) from June 1, 2005 to May 31, 2006; KRW 3,785 (3) including basic working hours per day and KRW 8 hours per day and overtime hours, and KRW 13 hours during overtime hours.

(4) A weekly holiday allowance shall be paid to a person who has worked for the number of days of April (4. 75 April) 19 days, which is the number of contractual working days during the weekly holiday allowance.

(5) In the event that the number of working days per year is opened, a monthly paid leave of one day shall be granted, and in the event that the number of working days is opened for a continuous one year, 10 days, and in the event that the number of working days is 90% or more, an annual paid leave of 8 days shall be granted, and in the case of a person who has worked continuously for 2 years or more, an annual paid leave of 1 days shall be given every year in addition to the number of the above paid leave days, and in the case of a person who has worked continuously for 2 years or more, an annual paid leave of 10% or more of ordinary wages may be replaced by the annual paid leave of 10%. (6) Continuous service, risk, and an unpaid paid leave of 1 year or more as of June 1, 202, the continuous service allowance of 5,000 won shall be deemed to be one year, and in addition to the number of working days per year and 15,000 won per year thereafter, it shall not be paid until June 1 or 1 every year.

Risk allowances shall be paid 4,00 won per day, 20,236 won per day.

Provided, That allowances for service on board, risk allowances, and continuous service allowances shall be excluded from ordinary wages.

C. From March 2003 to February 2, 2006, Defendant Company paid the Plaintiffs overtime and night work allowances, weekly holiday allowances, annual and monthly holiday allowances (hereinafter “instant allowances”) calculated on the basis of the basic hourly rate.

2. The parties' assertion

A. The plaintiffs' assertion (1) continuous service allowances, risk allowances, and work allowances are included in ordinary wages.

Although the Defendant Company calculated and paid various allowances on the basis of the basic hourly wage, it should calculate the hourly ordinary wage including continuous service allowances, risk allowances, and work allowances in addition to the basic hourly wage, and pay various allowances calculated on the basis thereof. Therefore, the Defendant Company is obligated to pay to the Plaintiffs the remainder of the amount calculated by deducting the shares already received from the various allowances that it should receive (in the case of retirement from office, from March 2003 to January 2006). (2) Continuous service allowances, risk allowances, and work allowances are the amount calculated by dividing the monthly ordinary wage by the number of hours calculated on the basis of the monthly ordinary wage. In this case, the monthly ordinary wage is fixed wages paid to a person who has worked on the 13 hours a day and the 19th day of a month, and thus, the total amount of continuous service allowances, work allowances, risk allowances, and accident allowances falling under the basic daily wage is the amount calculated on the basis of the monthly average wage, and the daily average wage is the amount calculated on the basis of 30 hours per month and night work hours per day.

B. The Defendant Company’s assertion (1) Continuous service allowances, risk allowances, and service allowances that are not included in ordinary wages are variable wages whose amount of payment varies depending on the actual continuous service period. It is not remuneration for labor, but allowance of a favorable nature to give preferential treatment to long-term continuous service workers. Risk allowances and service allowances are not paid for fixed and uniform work quality and quantity, but for variable wages whose payment and amount of payment vary depending on the work performance, and do not belong to ordinary wages. (2) Continuous service allowances, risk allowances, and service allowances are not paid for fixed and uniform work quality and quantity, and thus, they do not belong to ordinary wages.

Even if continuous service allowances, risk allowances, and work allowances are included in ordinary wages, the allowances are calculated based on ordinary wages by adding a certain premium rate to ordinary wages, and thus cannot be included in ordinary wages in terms of concept. Thus, the ordinary wage at issue is the amount calculated by dividing the monthly ordinary wages calculated based on eight hours per day, which is the base salary, continuous service allowances, risk allowances, and work allowances, by 186.67 hours per day, which is the standard hours for calculation of monthly ordinary wages.

3. Determination

A. Whether continuous service allowances, risk allowances, and work allowances are included in ordinary wages (1) standard for determining ordinary wages

Article 6 (1) of the Enforcement Decree of the Labor Standards Act refers to the amount of hourly wage, daily wage, weekly wage, monthly wage, or contract amount to be paid to the person who works regularly or uniformly for the prescribed work or the total work. Since the Labor Standards Act provides that, in principle, the amount of money and valuables paid to the worker as the workers eligible for the prescribed work or the total work, which are regularly and uniformly paid. Therefore, even if the wage for the worker is paid periodically or uniformly for a period exceeding one month, it may be included in the ordinary wage if it is paid periodically or uniformly. Thus, even if the wage for the worker is paid periodically or uniformly, it may be included in the ordinary wage if it is paid periodically or uniformly, and even if it is not paid directly or in proportion to the prescribed work hours, it shall not be deemed that it is not a wage for the prescribed work or the total work, and such wage shall not be excluded from the ordinary wage

13. (See Supreme Court Decision 2002Da74282 delivered on June 1, 2002). (2) The fact that the defendant company paid 5,00 won per month to workers whose continuous service period is not less than 1 year as remuneration for continuous service as of June 1, 2002, and added 5,000 won every year thereafter. As seen above, the fact that the plaintiffs received continuous service allowances according to the labor-management agreement that the plaintiffs received according to the number of years of continuous service as of a certain point does not conflict between the parties. As such, if the defendant company paid an increase in the number of years of continuous service as of a certain point of time, it is a fixed wage that has been paid periodically and uniformly to workers who reach a certain period of continuous service without distinction between actual service performance and actual service performance, and thus, the defendant company first asserts that it falls within the scope of ordinary wages and thus does not fall within the scope of ordinary wages (see Supreme Court Decision 200Da29370 delivered on July 23, 2002).

However, a uniform payment in ordinary wages includes not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards. The term "specified conditions" in this context must be fixed conditions in light of the concept of fixed, fixed, average, and ordinary wages to calculate human wages (see Supreme Court Decision 2004Da41217, Sept. 9, 2005). Since continuous service allowances are uniformly paid to all workers who have reached the fixed conditions of continuous service, the above argument by the defendant company is without merit.

In 2002, the defendant company, at the time of the establishment of the continuous service allowance in 2002, agreed that the continuous service allowance shall not be included in ordinary wages, since the defendant company is a mutually advantageous allowance to give preferential treatment to the long-term continuous service workers rather than an exchange wage in accordance with the guidelines for the calculation of ordinary wages in the Ministry of Labor.

In addition, the fact that the employer agreed to exclude the continuous service allowance from the ordinary wage from the ordinary wage as seen above, but such circumstance alone is insufficient to deem that there is no other evidence to acknowledge it. In addition, the fact that the employer continues to pay the continuous service allowance to the employee as the allowance for work, and the employer’s obligation to pay is cancelled under the collective agreement, the rules of employment, the rules of employment, the rules of employment, the labor contract, the labor contract, and the labor practice falls under the scope of the wage. As seen above, the continuous service allowance is paid every month to all drivers under the labor-management agreement which has binding force on the Defendant company. Considering that all allowances are specified in the collective agreement, the rules of employment, the labor-management agreement, and the labor-management agreement, the mere fact that the Defendant company agreed to exclude the continuous service allowance from the ordinary wage is not the wage, but the wage, and thus, the Defendant company’s assertion is without merit.

(B) The fact that the Defendant Company paid KRW 4,00 per day to all drivers of the above examination allowance according to the labor-management agreement, and KRW 20,236 per day according to the number of attendance days is equal as seen above. As such, risk allowances and work allowances are money having the nature of wage subject to work, and as long as an employee meeting certain conditions such as work, is naturally paid the risk allowances and work allowances, they are paid periodically and uniformly. Thus, barring special circumstances, the risk allowances and work allowances are fixed and average ordinary wages paid for the amount or quality of prescribed work, and they fall under the scope of ordinary wages.

In this regard, the defendant company asserts that the payment of risk allowances and work allowances is different depending on the actual monthly work days, and the amount of payment is different, and it does not constitute ordinary wages.

However, it includes not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards. Risk allowances and overtime allowances are uniformly paid in accordance with the fixed condition of attendance allowance, 4,000 won for the attendance allowance and 20,236 won for the attendance allowance, which falls under the wage item that is not a monthly wage, not a monthly wage, and thus, even if the calculation of risk allowances and work allowances for each worker per month differs from the monthly total amount, it cannot be said that the amount of payment is changed in proportion to actual work performance (see Supreme Court Decisions 2004Da56196, Mar. 11, 2005; 2002Da74282, Jun. 13, 2003; 2002Da74282, Jun. 13, 2003). The above argument by the defendant company is without merit, it does not constitute a change in ordinary wage between the defendant company's employees and employers.

The defendant company asserts that since the defendant company agreed to exclude continuous service allowances, risk allowances, and work allowances from ordinary wages, these allowances do not constitute ordinary wages.

However, ordinary wages guarantee the minimum level of average wages that can be increased or decreased based on actual working hours or actual performance, as well as the basis for calculation of additional allowances for night and holiday work under Article 55 of the Labor Standards Act and pre-announcement of dismissal allowances, etc. under Article 32 (1) of the same Act. Since there are no separate minimum standards other than premium rates or payment days, each of the above provisions recognizes the validity of an agreement to exclude various allowances to be included in ordinary wages from ordinary wages in light of the nature of the agreement between the labor and management, if it recognizes the validity of the agreement to exclude them from ordinary wages, additional allowances shall be paid for extension, night, and holiday work, and the purport of the agreement between the labor and management that excludes the dismissed workers from ordinary wages under the same Act by nature is dismissed, and therefore, it is invalid (see Supreme Court Decision 2005Da5396, Feb. 23, 2006; Supreme Court Decision 2005Da5396, Feb. 23, 2006).

B. The amount calculated by dividing the ordinary wage by 12 hours per year multiplied by the average number of weeks per month per month per day per day per day per day per day per day per month’s ordinary wage calculation method (a) of the ordinary wage at the time of continuous service, risk allowance, and working on board allowance (a) by the ordinary wage at the time of ordinary wage calculation (a) under Article 6(2) of the Enforcement Decree of the Labor Standards Act, by the amount determined by dividing that amount by the daily wage amount, with respect to the wages determined by the daily wage amount, by the number of contractual hours per day, and with respect to the wages determined by the monthly wage calculation standard number of contractual hours per month (the total number of contractual hours of the week as prescribed in Article 20 of the Labor Standards Act and the paid hours other than contractual hours). According to Article 20 of the Labor Standards Act, the contractual work hours are the work hours determined between the employee and the employer within the scope of the working hours as prescribed in Article 49

However, a fixed allowance received by an employee in the form of a monthly salary, along with the basic rate of pay.

In a case where the part having the nature of wage for paid holidays prescribed in the Labor Standards Act is included in the ordinary wage, the ordinary wage shall be calculated by deducting the part of wage for paid holidays from the fixed allowance received each month, and then dividing it by the number of contractual work hours. However, in such a case, the same result is that the calculation of the hourly ordinary wage is also the same according to the method of dividing the fixed allowance by the total number of working hours after calculating the monthly average total number of working hours by deeming the worker to have worked on paid holidays (see Supreme Court Decision 97Da28421, Apr. 24, 1998).

Likewise, as in the instant case, if daily working hours determined by the employee and the employer exceed standard working hours and include overtime and night work hours in a lump sum during daily working hours, the part of the wage for overtime and night work hours is also included in the daily wage paid in the form of daily wage. Thus, in calculating the hourly ordinary wage, the amount calculated by deducting the wage portion for overtime and night work from the daily wage and dividing it by the standard working hours is the hourly ordinary wage.

Therefore, in the case of this case, the basic hourly wage shall be added to the calculation of the ordinary wage, and the ordinary wage for continuous service determined as the daily wage and the amount of the monthly wage shall be calculated by combining both (b) the two different methods of calculation by converting it into an hourly rate. Meanwhile, in calculating the hourly ordinary wage, the plaintiffs asserted that the calculation of the hourly ordinary wage should be based on the total amount of continuous service allowances, risk allowances, work allowances, as well as work allowances, as well as work allowances, while the Labor Standards Act orders the payment of the premium calculated by adding a certain rate to the hourly ordinary wage, the ordinary wage does not include the above statutory allowance, in light of the fact that the Labor Standards Act orders the payment of the hourly ordinary wage, such as overtime allowance, night allowance, and holiday work allowances, as it does not include the above statutory allowance, the calculation of the hourly ordinary wage cannot be based on the total amount including the allowance. Accordingly, the plaintiffs' above assertion is without merit.

(2) According to the collective agreement of this case and wage agreement, working hours shall be 8 hours a day and 44 hours a week; according to the agreement between labor and management, the working hours shall be 13 hours a day (the basic working hours and 5 hours of overtime work, 1 hours of overtime work, 5 hours of overtime work, 1 hours of overtime work, 19 days a day), and the monthly working hours shall be 19 days a day, and the daily working hours shall be 4.75 days a day (14 weeks a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day a day is paid to the person who opened the last 19 days a day a day a day a day a day a day a day a day a day a week a day a day a day a day a day a day a day a week a day a day a week a day a week is paid.

Therefore, from among the continuous service allowances determined as a monthly wage by applying the above calculation method, if the monthly wage of KRW 5,00,00 for which the plaintiffs seek is converted into a monthly wage, it shall be divided into the monthly standard working hours. As such, the monthly continuous service allowances shall be the part [5,00 won - [8,00 won for the monthly continuous service allowances x 365/12 x 7] of the amount corresponding to the contractual working hours during the monthly continuous service allowances] - [5,00 won for the monthly continuous service allowances x 19 days x (5 hours x 5 x 19 x 5 x 5 x 5)] of the prescribed working hours of the month (one day working hours x 8 hours x 19 days x 19 days x 19 days )] divided by the monthly standard working hours of 14.75 won, which is an amount calculated by dividing the number of monthly continuous service allowances by the monthly wage of KRW 14.

Defendant Company asserted that the number of weeks per year should be calculated in 52 weeks since it reached an agreement between the labor-management to calculate the number of weeks per year as 52 weeks. However, it is difficult to find that the Defendant Company calculated the number of weeks per year as 52 weeks in calculating various allowances by itself, and there is no other evidence to acknowledge that there was such an agreement between the labor-management. Thus, the above argument by the Defendant Company is without merit (the Plaintiff’s assertion as to the number of weeks per annum)

19. The plaintiff's assertion about the number of weeks is not considered as 52 weeks after a year is not considered as 52 weeks, and 365 (12 x 7) is mainly asserted. Thus, it cannot be deemed that the plaintiff recognized the defendant's assertion about the number of weeks of absence.

(B) According to the above facts, the Defendant Company paid the Plaintiffs a risk allowance of KRW 4,00 per day and an allowance of KRW 20,236 per day. Therefore, when converting the risk allowance and allowance of KRW 20,236 per day into the amount of daily wage by applying the above calculation method, the remainder after deducting the part of overtime and night duty from the daily wage risk allowance or the daily wage work allowance, shall be divided into the daily standard work hours. Thus, the Si wage risk allowance of KRW 4,00 [the amount equivalent to the contractual work hours during the daily wage [the amount calculated by dividing the amount of the daily wage risk allowance of KRW 5 hours x 5 x 1 x 0 x 5 x 5 x 5 x 5 x 5 x 25 x 5 x 5 6 x 25 x 5 x 5 x 5 6 x 5 x 5 5 x 5 1) of the daily wage work hours];

(C) The ordinary wage at the time of ordinary wage should be calculated as above 14.75 won for continuous service as calculated as above, 250 won for continuous service at the time of urgency, and 1,75 won for on-board service at the time of urgency, and 264.75 won for on-board service at the time of urgency, so the ordinary wage at the time of ordinary wage

3. From January 1 to May 31, 2003, from June 1, 2003, from June 1, 2003 to May 31, 2004, 5,04.45 won, from June 1, 2003 to May 31, 2004, from June 1, 2004 to May 31, 2005, 5,174.15 won, and from June 1, 2005 to January 31, 2006, 5,319 won.

However, as seen above, Plaintiff A from September 1, 2003, Plaintiff B from September 1, 2003, and Plaintiff B from October 2004.

1. Since the Plaintiff started to receive the payment of continuous service allowances, the ordinary wage of the City from March 1, 2003 to May 31, 2003 of the Plaintiff A shall be 4,90,05 won, and from June 1, 2003 to May 31, 2003.

31. Ordinary ordinary wages up to 5,029.7, and Plaintiff B’s ordinary wages from March 1, 2003 to May 2003

31. The Si’s ordinary wage up to 31. 4,900 won, and the Si’s ordinary wage from June 1, 2003 to May 31, 2004 shall be 5,029 won, and the Si’s ordinary wage from June 1, 2004 to September 30, 204 shall be 5,159 won.

C. During the determination and calculation by item of the various allowances to be paid, (1) extension and night work allowances from March 2003 to January 2006, the Plaintiffs’ extension and night work hours (e.g., increased hours) are as follows: “The fact that the Defendant Company paid the amount to be paid to the Plaintiffs as an extension and night work allowance” in the calculation of individual allowances is as follows: “the time is as indicated” in the calculation of individual allowances. The fact that the Defendant Company paid the amount to be paid to the Plaintiffs as an extension and night work allowance is without dispute between the parties.

In doing so, the defendant company is obligated to pay the plaintiffs the above-mentioned working hours by multiplying the above-mentioned ordinary wages by the "calculated allowance" calculated as stated in the calculation allowance, and the remaining "amount calculated by deducting the amount corresponding to the already paid amount" which the plaintiffs had already received. (2) The unpaid allowance is paid.

During the period from March 2003 to January 2006, the Plaintiffs’ weekly holiday number is as indicated in the “number of days” in the attached Form “Calculation of the respective allowances for each individual”, and the Defendant Company is obliged to pay the Plaintiffs the amount corresponding to the amount already paid as the weekly holiday allowance by the Plaintiffs “the fact that the amount corresponding to the said amount was paid as the weekly holiday allowance” is paid as the weekly holiday allowance. Therefore, the Defendant Company is obliged to pay the Plaintiffs the amount corresponding to the unpaid amount “the remaining amount after deducting the amount corresponding to the already paid amount” from the relevant amount as indicated in the “calculated allowance” by multiplying the daily ordinary wage and the basic working hours by eight hours.

(3) During the period from March 2003 to January 2006, the Plaintiffs’ annual and monthly leave allowances is “The number of days of each individual’s annual and monthly leave allowances” in attached Form “The fact that the Defendant Company paid the Plaintiffs the amount corresponding to the stated amount in the annual and monthly leave allowances “the same as the relevant number of days” in the calculation of the individual’s monthly leave allowances, and that the Defendant Company paid the Plaintiffs the amount in the annual and monthly leave allowances in installments. Therefore, there is no dispute between the parties concerned. Therefore, the Defendant Company has the obligation to pay the Plaintiffs the unpaid amount “the unpaid amount” calculated by deducting the amount corresponding to the stated amount in the annual ordinary wages and basic working hours from the stated amount “the unpaid amount” after deducting the amount corresponding to the monthly paid amount. (4) While the Plaintiffs are claiming the unpaid amount calculated on the basis of the monthly leave allowances on the 19th day of each month, they do not accept the Plaintiffs’ claim for payment as the basis of the number of days in excess of the Plaintiffs’ actual working hours.

(5) In full view of the purport of the entire pleadings, the defendant company and driving workers, as well as the overall purport of the arguments, comprehensively taking account of each one of the statements of evidence Nos. 3, 4, 5, and 6, the deduction of the amount of allowances and the amount of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class of the class.

9. Upon entering into a wage agreement for each of the pertinent years, the terms of the agreement shall be retroactively applied from June 1 to May 31 of the following year, but the agreement was concluded not to apply to workers retired prior to the date of each agreement. Accordingly, the Defendant Company:

11. On August 2005, the amount of unpaid allowances due to the retroactive application of the wage agreement to the plaintiffs can be recognized as having been paid as indicated in the calculation of the individual's various allowances. Thus, the above amount of allowances should be deducted from the amount that the defendant company should pay to the plaintiffs.

D. Sub-committee

Therefore, Defendant Company is obligated to pay to Plaintiff 00 KRW 10,35, KRW 50, KRW 10, KRW 520, KRW 00, KRW 10,520, and KRW 10,655, KRW 613, and KRW 10,582, KRW 917 to Plaintiff 00, KRW 10,672, KRW 189, KRW 00, KRW 071, KRW 10, KRW 3331, KRW 580, KRW 00, KRW 00, KRW 10, KRW 282, and KRW 07, KRW 289, KRW 30, KRW 289, KRW 39, KRW 30, KRW 485, KRW 00, KRW 00, KRW 87, KRW 97, KRW 289, KRW 309, KRW 389, KRW 305, KRW 485, KRW 200, KRW 3639, KRW 4839, KRW 36375.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.