[1] The scope of wages as the basis for calculating average wages

[2] The case holding that the special incentive amount for special production, which has been paid regularly, continuously, and uniformly, constitutes the wage which is the basis for calculating the average wage

[3] The case affirming the judgment below holding that there was an implied agreement between labor and management to exclude special production encouragement funds from the calculation of retirement allowances

[1] The total amount of wages, which is the basis of the calculation of average wages, shall be money and valuables paid by an employer to an employee as the target of work, including all the forms of money and valuables, for which the employer is continuously and regularly paid to an employee and whose obligation to pay is deleted by collective agreements, rules of employment, wage regulations, employment contracts, labor practices

[2] The case holding that even if the circumstance in which the company paid special incentive money for production was agreed to pay the incentive money for production as a result of the mediation of a labor dispute, and the above incentive money for production was agreed to be paid once as a special bonus in consideration of the previous year's management performance, if the special incentive money for production has been paid periodically, continuously, and uniformly to workers regardless of a change in company's management performance or work performance after the mediation, it constitutes wages which are the basis for calculating the average wage, regardless of the employer's obligation to pay periodically, continuously, and uniformly, regardless of changes in company's management performance or work performance

[3] The case affirming the judgment below that there was an implied agreement between labor and management to exclude special production encouragement funds from the calculation of retirement allowances

[1] Article 19 of the Labor Standards Act / [2] Article 19 of the Labor Standards Act / [3] Articles 19 and 34 of the Labor Standards Act

[1] Supreme Court Decision 95Da19256 delivered on May 14, 1996 (Gong1996Ha, 1837), Supreme Court Decision 96Nu15084 delivered on May 28, 1997 (Gong1997Ha, 1893), Supreme Court Decision 97Da56235 delivered on February 9, 199 (Gong199Sang, 451 delivered on May 12, 1999) (Gong199Sang, 114 delivered on July 4, 200)

Plaintiff 1 and six others (Attorney Kang Young-chul, Counsel for the plaintiff-appellant)

Han Cement Industry Co., Ltd.

Seoul High Court Decision 2000Na53948 delivered on July 11, 2001

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. The lower court determined that the Defendant Company’s annual average wage of 250% from 1988 to 1997 was paid periodically and uniformly to the Plaintiffs. However, the payment of the production incentive amount around 1988 was made at the time of the Defendant Company’s offering of 100% bonus per annum to its employees at the same company’s company affiliated with the same type of cement as at the time of the Defendant Company’s offering of 198-20% bonus, which was less than 600% bonus, and the labor dispute was formed in the cement industry as a whole, and the Defendant Company did not reach an agreement to pay the production incentive amount of 350% every year to all employees of cement industry through the adjustment of the labor dispute, which was not based on the average wage of the Defendant Company’s 198-198-2 agreement to provide the employees with an annual average wage of 350% bonus for the first time after the 198-198-198-2 agreement to pay the Defendant Company’s average wage.

The total amount of wages, which is the basis for the calculation of average wages, are money and valuables paid by the employer to workers as workers eligible for work, and which are continuously and regularly paid to the workers and whose obligation to pay is cancelled under collective agreements, rules of employment, salary regulations, employment contracts, labor contracts, labor practices, etc., regardless of their titles (see, e.g., Supreme Court en banc Decision 97Da56235, Feb. 9, 199; 97Da5015, May 12, 1999). As recognized by the court below, the circumstances leading the defendant company to pay special incentives for production have been agreed to pay incentives for production of 350% from the labor dispute of cement industry workers in January 1989, and 350% bonuses additionally paid in the proposal of adjustment are special bonuses for the year 1988, which are the basis for the calculation of the average wages, regardless of the changes in the performance of work, and thus, constitute a labor contract or labor crisis of the defendant company's 1988.

Nevertheless, the court below erred in finding that the special production incentive amount in this case does not constitute the wage which is the basis for calculating the average wage. However, as long as the court below's assumptive decision is justified, the above error of the court below's judgment does not affect the conclusion of the judgment. Thus, the ground of appeal pointing out this error is without merit.

2. The court below, as alleged by the plaintiffs, can be deemed to have the nature of wage to be included in the average wage as it is reasonable to view that there was an implied agreement between the labor and management to exclude the special production encouragement amount from the calculation of the retirement allowance, considering the circumstances in its reasoning, and rejected the plaintiffs' assertion that the amount of special production encouragement amount should be included in the average wage when calculating the retirement allowance, even when calculating the minimum amount of retirement allowance as stipulated in the Labor Standards Act based on the calculation of the average wage by including the special production encouragement amount of the plaintiffs' assertion as the average wage, it is clear that the amount is less than the amount calculated and paid by the defendant company by reflecting only 70% of the bonus in accordance with the retirement payment provision of the defendant company. Thus, the court below determined that the above agreement cannot be

In light of the records, the above recognition and determination by the court below is just, and there is no error of law such as misconception of facts, violation of the rules of evidence, and incomplete hearing.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)