[1] The method of calculating the average wage of a daily employed worker who clearly states the wages for the three-month period prior to the occurrence of a disaster

[2] The legislative intent of Article 19(2) of the Labor Standards Act and whether the above provision also applies to daily workers (negative)

[1] In general, daily workers shall be determined as average wages according to Article 19(1) of the Labor Standards Act, with the purport that it is not appropriate to calculate average wages because the actual working day is not the day and the working place, the number of working days, and the amount of wages are not fixed, and it is not appropriate to calculate average wages according to the calculation period because of changes in average wages according to Article 19(1) of the same Act. However, as long as the decision of the Minister of Labor under Article 3 of the same Act is not yet provided, the Minister of Labor has not determined wages under the same provision, but there is room to deem that daily workers cannot calculate average wages for daily workers. However, the term "cases where the calculation of average wages is impossible" refers to cases where it is technically impossible or it is considerably unfair to calculate average wages under the same provision. Thus, the average wages of daily workers who received wages specifically for three months prior to the occurrence of a disaster are reasonable to calculate the average wages in accordance with Article 19(1) of the same Act based on actual wages.

[2] Article 19(2) of the Labor Standards Act provides that "if the amount calculated under paragraph (1) is less than the ordinary wage of the worker in question, the ordinary wage shall be the average wage." The purpose of the provision is to guarantee the minimum amount of the average wage in preparation for extremely exceptional cases where the ordinary wage is considerably lower than the ordinary wage due to the worker's fault for three months prior to the occurrence of the cause for calculating the average wage, or because of the worker's failure to work normally for the three months prior to the occurrence of the cause for calculating the average wage. Thus, if the ordinary wage of the daily worker is considered as the agreed daily wage, the daily worker is not paid the daily wage, and the daily worker is not paid the daily wage, barring special circumstances such as the payment of a large number of overtime allowances, it is general that the above ordinary wage significantly exceeds the average wage, and accordingly, daily worker might receive various insurance benefits in accordance with the Industrial Accident Compensation Insurance Act without considering the characteristics of the work type. This does not seem to have the purport of the above provision.

[1] Article 19 of the Labor Standards Act, Article 3 of the Enforcement Decree of the Labor Standards Act / [2] Article 19(2) of the Labor Standards Act

[1] Supreme Court Decision 94Da8631 delivered on February 28, 1995 (Gong1995Sang, 1443)

Plaintiff (Attorney Cho Jong-tae, Counsel for the plaintiff-appellant)

Korea Labor Welfare Corporation

May 20, 199

1. The Defendant’s disposition of determining the average wage against the Plaintiff on August 4, 1997 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

[B] 1, 3, 8, 17, witness completion, and whole purport of oral argument]

A. The plaintiff;

(1) On June 6, 1997, around 02:00, the occupational accident of this case where: (a) the injury of dushes and cerebral he suffered from the occupational accident of this case, which occurred due to the reduction of dushes due to the reduction of dushes and the injury of dushes due to dushes, dushes due to the reduction of dushes due to the reduction of dushes due to the reduction of dushes due to the removal from the former

(2) A claim for temporary layoff benefits on July 18, 1997

B. Determination and correction of the Plaintiff’s average wage as follows:

(1) Order 73,369 Won 56 dated August 4, 1997

(2) Correction of 181,818 Won 18 on September 5, 1997

The The The

(3) Correction of 60,000 won on November 22, 1997 (hereinafter “instant disposition”).

Under the premise that the Plaintiff is a commercial worker who has received the wage of KRW 1,800,000 each month in the Gyeongnam-gu, the average wage shall be calculated (gold KRW 1,800,000 ± 30).

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Plaintiff

A daily-paid worker who has been paid from his/her relocation to South Korea shall be determined as the average wage of 250,000 won per day.

(2) Defendant

The plaintiff is a commercial worker who has received wages of KRW 1,800,000 every month from the Gyeongnam-gu, and thus, the average wage must be calculated on the basis thereof.

(b) Related statutes;

* Article 19 of the Labor Standards Act 【Definition of Average Wages】

(1) For the purpose of this Act, the term "average wages" means the amount calculated by dividing the total amount of wages paid to a worker during three months immediately before the day on which a cause for calculating his/her average wages occurred by the total number of calendar days in the relevant period. The period of less

(2) If the amount calculated pursuant to paragraph (1) is less than the ordinary wages of the worker concerned, the ordinary wages shall be the average wages.

* Enforcement Decree of the Labor Standards Act

【Average Wage of Daily Worker】

The amount determined by business or occupation of the Minister of Labor shall be the average wage for daily employed workers.

Article 4 【Average Wage in Special Cases】

Where it is impossible to calculate the average wage pursuant to Article 19 of the Act and Articles 2 and 3 of this Decree, the Minister of Labor shall determine the average wage.

【Ordinary Wage】

(1) For the purpose of the Act and this Decree, the term "ordinary wages" means hourly wages, daily wages, weekly wages, monthly wages, or contract wages determined to be paid periodically or uniformly to the worker for a prescribed labor or the whole labor.

(c) Fact of recognition;

[Adoption Evidence: A4-2, A5-1, 2, 3, A6-1 through 4, B-2-1, B-1 through 9, B-6-3, 7-3, inquiry of facts about Gyeongnam-gu representatives, and the whole purport of oral argument]

[Evidence Evidence: A3 (2-2), A4-1]

(1) The Plaintiff, as a major in the distribution of electricity on a daily basis, has been receiving daily allowances from the Sungsung Electrical Construction Co., Ltd., and the dialog Electrical Limited Co., Ltd. and engaged in irregular work.

(2) In around 1993, the Plaintiff received active education from the Korea Electric Power Corporation due to the necessity of the Gyeongnam-dong Department, and the above education was only for the employees of the company, and it was reported as being paid monthly wages of KRW 1,800,000 in consideration of the fact that it would be 250,000 per day when it acquired the qualifications of medical insurance and national pension as a full-time employee belonging to the Gyeongnam-dong Department for convenience and that it would be 7,800,000 per day, and thereafter, the Plaintiff maintained its qualifications before the occurrence of the instant accident.

(3) Between March 6, 1997 and June 5, 1997, the number of working days actually worked in the Gyeongnam New Year is 28 days in total (8 days in March, 7 in April, 8 in May, and 5 in June), and 10 hours in daily work and 250,000 won in total during this period.

(d) Markets:

(1) Whether the plaintiff is a daily worker

According to the above facts, it is evident that the plaintiff is a daily worker who was paid 250,000 won a daily allowance from the Gyeongnam-gu at the time of the accident, and even if the plaintiff or Gyeongnam-gu reported false facts as seen earlier in acquiring the status of medical insurance and national pension for the plaintiff, it cannot be determined as a regular worker or determined the amount of the wages based on the above separate legal sanction. The plaintiff asserts that the plaintiff has received a large amount of wages than the above reported amount, and it is difficult to conclude that it goes against the principle of good faith or the principle of good faith.

(2) Method of calculating average wages of daily workers;

(A) In general, daily workers are obliged to determine the amount of average wages according to Article 19(1) of the Enforcement Decree of the Act for daily workers under Article 3 of the Act, with the purport that it is inappropriate to calculate the amount of average wages according to the calculation period because the amount of average wages is not fixed because the actual working day is not fixed and the working place, working day, working day, and wage amount is not fixed. However, in fact, the Minister of Labor does not determine the wage under the same provision until now.

As such, unless the decision of the Minister of Labor under Article 3 of the Enforcement Decree of the Act has yet to be prepared, there is room to regard the daily average wage as a case where it is impossible to calculate the daily average wage.

However, in this context, “in cases where the calculation of average wages is impossible” refers to cases where it is technically impossible to calculate them as they are written or where it is considerably unfair to calculate average wages in accordance with the above relevant provisions (see Supreme Court Decision 94Da8631 delivered on February 28, 1995).

On the other hand, it is reasonable to calculate the plaintiff's average wage on the basis of the amount actually received by the plaintiff prior to the disaster of this case, since the plaintiff specifically revealed the wages for the three-month period prior to the occurrence of the disaster of this case as above, it seems that the plaintiff could calculate the plaintiff's ordinary living wage according to Article 19 (1) of the Act based on the above facts. Furthermore, even if such method is taken, the amount is remarkably higher or less than ordinary wage, and it is reasonable to calculate the amount based on the amount actually received by the plaintiff prior to the accident of this case. Accordingly, it is reasonable to calculate the specific amount as 76,086 won [250,000 won x 28) ± 92 (from March 6, 1997 to June 5 of the same year).

(B) Relationship with ordinary wages

The purport of Article 19(2) through (1) of the Act that the ordinary wage shall be the average wage if the amount calculated pursuant to paragraph (1) is less than the ordinary wage of the worker in question is to guarantee the minimum amount of the average wage in preparation for extremely exceptional cases where it is extremely low compared to the ordinary wage due to reasons attributable to the worker in the three-month period before the occurrence of the cause for calculating the average wage.

However, in cases where the ordinary wage of daily workers is considered as the agreed daily wage, barring special circumstances such as the daily bonus, daily allowance, and company allowance, the above ordinary wage is a general case where the above ordinary wage significantly exceeds the average wage, and accordingly, there is room for a daily worker to receive various insurance benefits under the Industrial Accident Compensation Insurance Act without considering the unique characteristics of his/her work form, and it seems that the above provision does not purport to allow such cases.

In addition, the ordinary wage is a fixed and average wage that is to be paid periodically and uniformly for the calculation period of the first wage even among the exchanged wages paid as an object of work (see, e.g., Supreme Court Decision 90Meu14758, Jun. 28, 1991). Even if daily wage is agreed upon in the form of incomplete employment in which it is unclear whether the work is performed or not, the issue of whether the work is paid depends on whether the work is actually performed or the number of days of work, and thus, the ordinary worker receives the ordinary wage as a daily wage (e.g., where the ordinary worker receives the daily wage without paying a certain amount of taxi commission, such as a taxi driver for business purpose, it is necessary to distinguish it from the concept of ordinary wage.

In particular, as in the case of this case, as long as the wage for the three-month period prior to the occurrence of a disaster is specifically specified, it would be more reasonable to compute the amount of insurance benefits based on the average wage calculated based on the above-paid worker's work status, the purport of the law, and the concept of ordinary wage.

(3) Sub-decisions

Therefore, even though the Plaintiff’s average wage is 76,086 won or more, the instant disposition that determined the average wage of KRW 60,000 on the premise that the Plaintiff is a permanent employee is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges White-lele (Presiding Judge)