2015Gudan5847 Revocation of partial payment of childcare leave benefits

A

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

September 11, 2015

October 7, 2015

1. On March 27, 2015, the Defendant’s disposition to revoke the Plaintiff’s application for the difference in childcare leave benefits filed against the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, who was employed by the National Daily Group Co., Ltd. (hereinafter referred to as “Nonindicted Company”), was on childcare leave from July 27, 201 to April 26, 2012, and applied for childcare leave nine times in relation to the above childcare leave, and received KRW 7,183,50 in total from the Defendant during childcare leave from September 5, 201 to December 11, 2012.

B. In calculating the above child care suspension benefits, the Defendant deemed KRW 1,95,459 as ordinary wages in accordance with the collective agreement in the year 2010 of the non-party company providing that "ordinary wages shall be 60% of the basic salary," which is 1,95,459 won, which is 60% of the basic salary of the Plaintiff.

C. On March 26, 2015, the Plaintiff asserted that the Defendant’s basic salary is not considered as ordinary wage but as ordinary wage of 60% is unreasonable, and applied for payment of the difference between the childcare leave and the amount already paid, which is calculated on the basis of the entire ordinary wage corresponding to the basic wage (hereinafter “instant application”). Accordingly, the Defendant issued a notification to the Plaintiff on December 27, 201, stating that “the Plaintiff was legally paid childcare leave due to the termination of the childcare leave period prior to the Supreme Court en banc Decision on the ordinary wage ( December 18, 2013), and that “the Plaintiff is not subject to re-determination of ordinary wage” (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 3, Eul evidence 1 and 2, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

Where there is an objection to a decision on the payment of childcare benefits, an administrative litigation shall be filed within 90 days from the date when he/she becomes aware of the disposition under Article 87(1) and (2) of the Employment Insurance Act, or within one year from the date when he/she becomes aware of the disposition, etc. under the Administrative Litigation Act, and within one year from the date when he/she becomes aware of the disposition, etc. under the Administrative Litigation Act. The plaintiff was aware of the last payment of childcare benefits from the defendant on December 11, 2012. Accordingly, the lawsuit in this case was filed on April 27, 2015, which was 90 days after the date when the plaintiff became aware of the decision on childcare benefits, and thus, is unlawful as it exceeds

B. Determination

The main text of Article 20(1) of the Administrative Litigation Act provides that a litigation for revocation shall be instituted within 90 days from the date on which a disposition is known, and Article 20(2) provides that a litigation for revocation shall not be filed after the lapse of one year from the date on which a disposition is taken. Meanwhile, a disposition of refusal is established by an administrative agency’s declaration of rejection against a citizen’s application for a disposition, and where an administrative agency again expresses its intention of rejection against the same application, a new disposition shall be deemed to have been taken. In this case, the period allowed for an administrative appeal and an administrative litigation shall be based on each disposition (see, e.g., Supreme Court Decisions 92Nu7542, Dec. 8, 192; 92Nu1643, Oct. 10, 1992).

In light of the following circumstances known by the above facts, namely, ① the Plaintiff applied for additional payment of the difference in childcare leave from April 26, 2012, which was the last day of the childcare leave, the period of extinctive prescription has not elapsed since March 26, 2015, and thus, the Plaintiff’s remaining right to claim for childcare leave against the Defendant still exists, ② the instant disposition against the Plaintiff’s refusal of payment of the instant application is subject to appeal litigation, and the period of filing the lawsuit should be determined based on the instant disposition, which is a new rejection disposition, and ③ the record clearly shows that the Plaintiff filed the instant lawsuit within 90 days from the date of the instant disposition. Thus, the Plaintiff’s instant lawsuit cannot be said to have been subject to the period of filing the lawsuit, and the Defendant’s assertion is without merit.

3. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff’s basic wage out of the Plaintiff’s wages constitutes ordinary wages as the fixed wage to be paid periodically and uniformly during the period of wage calculation. Therefore, the Defendant is obligated to pay the difference between the property-fixed childcare benefits including the entire basic wage and the childcare benefits already received by the Plaintiff, and thus, the instant disposition rejecting the payment is unlawful.

(2) The defendant's assertion

A. According to Article 95(1) of the Enforcement Decree of the Employment Insurance Act, childcare leave under Article 70(3) of the Employment Insurance Act provides that the monthly amount equivalent to 40/100 of the ordinary monthly wage calculated according to the Labor Standards Act as of the first day of the childcare leave shall be the amount paid on a monthly basis. The Plaintiff’s collective agreement at the time of the first day of the childcare leave provides that “ordinary wage shall be 60% of the basic wage,” and it is lawful to calculate the Plaintiff’s childcare leave based on ordinary wage

(B) According to Supreme Court en banc Decision 2012Da94643 Decided December 18, 2013, Supreme Court en banc Decision 2012Da94643 decided on August 24, 2015, the payment of difference between the childcare leave benefits can be paid by re-sale of the property unless the period of extinctive prescription (the written reply submitted by the Defendant appears to be a clerical error in the extinctive prescription period) is expired, but according to the content of the instant guideline and the purport of oral argument, the difference between the childcare leave benefits can be paid only when the period of extinctive prescription has not elapsed. According to the foregoing guidelines, the Plaintiff’s right to claim for childcare leave benefits has already expired, and thus the Plaintiff is not subject to payment of difference in the childcare leave benefits.

B. Determination

(1) As to the assertion on the scope of ordinary wages, which serve as the basis for calculation of childcare leave benefits

A. According to Article 95(1) of the Enforcement Decree of the Employment Insurance Act and Article 95(1) of the Enforcement Decree of the same Act, childcare leave under Article 70(3) of the Employment Insurance Act means a monthly amount equivalent to 40/100 of the ordinary monthly wage calculated according to the Labor Standards Act as of the first day of childcare leave. Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that the amount of ordinary wage refers to an hourly amount, daily amount, weekly amount, weekly amount, monthly amount, or contract amount, which is determined to be paid for contractual or total labor regularly

Whether a certain wage belongs to ordinary wages shall be determined based on the objective nature of whether the wage is paid as money or goods paid to an employee for a contractual work, and it shall not be determined by the formal criteria, such as the name of the wage or the end of the period of payment. Specifically, a certain wage means that the wage is continuously paid at a certain interval and that the wage has to be paid in order to belong to ordinary wages; ② a uniform payment means that the wage is paid not only to all the workers, but also to all the workers who meet the certain conditions or standards; ③ ‘fixedness' means that the wage is naturally paid regardless of achievements, achievements, or other additional conditions with respect to the work provided by an employee (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

On the other hand, even if the employer and the employer agree to exclude wages that are included in ordinary wages under the Labor Standards Act from ordinary wages, such agreement shall be null and void within the scope of the shortage when it falls short of the above standard.

(2) Determination

According to the evidence Nos. 1, 5, and 7, the Plaintiff’s basic salary at the time of the commencement of childcare leave. The Plaintiff’s basic salary out of the Plaintiff’s wage is a fixed wage regularly and uniformly paid in return for work, and its entirety falls under ordinary wage under the Labor Standards Act in light of its nature. Therefore, even if the collective agreement of the non-party company determined that only 60% of the basic salary should be ordinary wage and exclude part of it from ordinary wage, the provision of the collective agreement is null and void, and the Plaintiff’s basic wage should be calculated by including the whole basic wage in the ordinary wage. Thus, the Defendant’s disposition based on the different premise is unlawful.

Therefore, the plaintiff's above argument is reasonable, and the defendant's above argument is without merit.

(2) As to the assertion on the expiration of extinctive prescription

As seen earlier, the Defendant’s extinctive prescription period and assertion are not included in the original grounds for disposition, and it cannot be deemed that the original grounds for disposition are identical to the original grounds for disposition, since the Plaintiff’s child-care leave period and the grounds for disposition are not included in the period of extinctive prescription before the Supreme Court en banc Decision on the ordinary wage expired. Thus, the Defendant is not allowed to add the period of extinctive prescription to the grounds for disposition.

Even if it is not a domestic case, Article 107(1) of the Employment Insurance Act provides that the right to receive childcare benefits shall expire if it is not exercised for three years, and Article 107(2) of the Employment Insurance Act provides that the above extinctive prescription shall be interrupted. Thus, an application for childcare benefits may be filed before three years elapse from the last day of the childcare leave. As recognized earlier, the Plaintiff filed the instant application on April 26, 2015, before the expiration of three years from the last day of the childcare leave. Thus, the Plaintiff’s application is lawful [in this case, the Plaintiff filed an application for childcare benefits under Article 95 of the Enforcement Decree of the Employment Insurance Act within 12 months from the date of the expiration of the childcare leave, and the Defendant is obligated to pay childcare benefits under the above Act and subordinate statutes. Thus, the Plaintiff’s application for childcare benefits cannot be deemed as included in the previous application for childcare benefits.

Therefore, the defendant's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges Kim Gin-dong