(영문) 서울중앙지방법원 2012.12.10. 선고 2011가단394320 판결

1. The defendant shall pay to the plaintiffs listed in the separate sheet No. 1 each interest rate of 20% per annum from November 1, 2012 to the date of full payment with respect to each claim stated in the separate sheet No. 2 and each of the above amounts.

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

3. Paragraph 1 can be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. The plaintiffs are employed as indefinite contract workers with the Ministry of Employment and Labor, and each branch office listed in the list of plaintiffs attached to the list of plaintiffs under the Ministry of Employment and Labor from November 1, 2008 to the present day. The plaintiffs are employers of the plaintiffs.

B. Article 46(1) of the Regulations on the Management of Inorganic Contract Workers provides that the head of the office or the head of the agency affiliated with the Ministry of Employment and Labor shall pay to a inorganic contract worker remuneration according to the remuneration schedule as determined by the Minister of Employment and Labor every year. According to the remuneration schedule from 2008 to 2011 as stipulated by the Minister of Employment and Labor upon delegation of the above management regulations, the defendant requires the Plaintiffs to pay the salary, adjustment allowances, 100,000 won per month for welfare expenses.

C. In calculating the Plaintiffs’ statutory allowances (overtime work allowance, night work allowance, Saturday extended allowance, holiday work allowance, annual paid leave allowance, monthly paid leave allowance, maternity leave allowance, maternity leave allowance, maternity leave allowance, and hereinafter “each of the instant statutory allowances”), the Defendant calculated the amount calculated by subtracting welfare expenses as the Plaintiffs’ ordinary wages, and paid only each of the instant statutory allowances calculated on the basis of the said ordinary wages to the Plaintiffs.

[Reasons for Recognition] Unsatisfy, each entry of Gap 1-4 evidence (including virtual number), the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiffs

1) The instant welfare expenses are not for compensating for actual expenses or for benefits, but for the Plaintiffs regularly, uniformly, and continuously paid, and constitute wages paid as remuneration for work, as the Defendant’s obligation to pay is stipulated under the labor contract, employment rules, and the Employment and Labor Contract Workers Management Regulations.

2) The instant welfare costs are fixed amounting to KRW 120,000 per month, paid periodically, regularly, and continuously. As such, the instant welfare costs are included in ordinary wages, the Defendant paid each statutory allowances after deducting them from ordinary wages, and thus, the Defendant is obliged to pay the difference between each statutory allowances calculated by including them in ordinary wages.

B. Defendant

1) In order to provide a more stable working environment for non-regular workers, the Defendant: (a) was converted to a in-house contract position; (b) however, since the converted workers into a in-house contract position were not guaranteed other welfare benefits than the salary and adjustment allowances under the salary class system and the respective statutory allowances of this case; (c) was paid with the instant welfare benefits regardless of the work; and (d) confirmed and agreed that the amount of welfare benefits after the formation of the wage agreement entered into with the labor union from 2008 to 2010 was paid with a living supporting and welfare regardless of the prescribed amount of work; and (d) in accordance with the guidelines for the calculation of ordinary wages under Article 602 of the Rules of the Ministry of Labor, money and valuables provided or provided merely as living supporting and welfare benefits falls under other money and valuables, not wages for work, and thus, the instant welfare benefits are not remuneration for work.

2) Even if wages are calculated, the scope of ordinary wages is stipulated in the rules of employment for inorganic contract workers as remuneration and adjustment allowances. The instant welfare expenses are excluded from the instant welfare expenses, and money paid for living assistance and welfare benefits cannot be deemed to be included in ordinary wages. Thus, the cost of life after the instant welfare does not include in ordinary wages.

3. Determination

(a) Whether it falls under wages;

Under the Labor Standards Act, the term “wages” refers to all kinds of money and valuables, regardless of their titles, paid by an employer to an employee as remuneration for work (Article 18 of the Labor Standards Act, Article 2 subparag. 5 of the current Labor Standards Act), and under the current positive law, all wages refer to remuneration that an employee provides as remuneration for work under the direction of the employer. As such, it cannot be the so-called livelihood security wage that merely takes place based on the status as an employee without premise of actual labor (see, e.g., Supreme Court Decision 2006Da13070, Jun. 15, 2007). Any money and valuables, which an employer pays to an employee as remuneration for work, are paid continuously and regularly by collective agreements, rules of employment, wage rules, labor contract, labor contract, labor practice, etc., and are paid uniformly to an employee meeting certain requirements, regardless of their names, shall be deemed as wages subject to the average wage calculation (see, e.g., Supreme Court Decision 2002Da52828, Feb. 14, 2003).

In light of the concept of wages and the fact that labor contracts are concluded for the purpose of providing an employer with labor and paying the employer wages, it is reasonable to see that the remainder money excluding the money that the employer pays to the employee in a purely mutually advantageous manner or pays in compensation for actual expenses, regardless of the name, is the wage paid in compensation for work.

In this case, it is evident that the welfare expenses of this case are not benefits of the nature of compensation for actual expenses in light of the time, method, amount, scope of payment, etc. of the welfare expenses of this case, the obligation to pay the welfare expenses of this case to the defendant in accordance with the employment contract, employment rules, employment rules of the Ministry of Employment and Labor, and the employment contract worker management regulations of the Ministry of Employment and Labor, so it is difficult to see that the amount determined as 120,000 won per month is paid to all contract workers. The welfare expenses of this case are not fixed or temporary payment, the occurrence of the cause for payment is not a fixed or temporary payment, and the defendant has continuously paid 120,000 won per month to the plaintiffs on a regular and continuous basis as welfare expenses, and the intention of this case is very weak in terms of the fact that the welfare expenses of this case is not directly or pro rata to the plaintiffs' working hours, but in substance, it is reasonable to see that it falls under the welfare expenses of this case, regardless of the status of workers.

On the other hand, as seen above, the instant welfare expenses are wages paid as compensation for work in our legal system where the livelihood security wages cannot be recognized, since the instant welfare expenses are not reimbursement for actual expenses, and they are not reimbursement for living expenses without payment obligations. The mere fact that the Defendant stated that the instant welfare expenses are payment for living expenses after the instant welfare expenses or the remuneration table attached to the wage agreement, regardless of the prescribed labor, does not have the nature as wages with the welfare expenses of this case.

B. Whether the case constitutes ordinary wages

1) If a certain amount of money or valuables paid to an employee as a worker for the prescribed work or total work is paid periodically or uniformly, in principle, the amount of wages belonging to the ordinary wages. However, in light of the legislative intent of the Labor Standards Act and the function and necessity of the ordinary wages, if a certain amount of wages falls under ordinary wages, it shall belong to a fixed wage paid periodically or uniformly. Thus, it does not constitute ordinary wages if a certain amount of wages is not paid periodically or uniformly or uniformly, or if a certain amount of wages varies depending on actual work performance, it shall not constitute a fixed wage. Here, it includes not only the amount paid to all workers, but also the amount paid to all workers who meet the certain conditions or criteria, and the term “specified condition” in this context should be “fixed condition” in light of the concept of ordinary wages to calculate “fixed and average wage” (see, e.g., Supreme Court Decision 2006Da13070, Jun. 15, 2007).

In this case, as seen above, the welfare expenses in this case, regardless of the actual work performance for all inorganic contract workers under the Ministry of Employment and Labor as remuneration for work, shall be considered as a fixed wage which is regularly, continuously, and uniformly paid, so it is reasonable to view that they have the nature of ordinary wage as the object of total work.

2) Validity of the employment contract or employment rules to be excluded from ordinary wages

Since it is deemed that there was an agreement to exclude the instant welfare expenses from ordinary wages under the labor contract and the rules of employment, the validity thereof shall be examined.

The minimum amount of ordinary wages is guaranteed as well as the basis for calculation of premium or advance notice of dismissal for overtime hours, night and holiday work as prescribed by the Labor Standards Act. If each of the above allowances recognizes the validity of the agreement to exclude various allowances to be included in ordinary wages in light of the nature of the agreement between the labor and management as there is no additional rate or minimum standard other than the number of days to be paid, it shall be excluded from ordinary wages. The purport of each of the above provisions is to stipulate that dismissed workers shall pay premium for overtime hours, night and holiday work, and that workers shall normally receive premium for a certain period. Thus, the agreement between the labor and management that excludes the allowances to be included in ordinary wages under the Labor Standards Act from ordinary wages is null and void as a contract that determines the working conditions that do not reach the standard under the above provision under Article 22(1) of the Labor Standards Act (see, e.g., Supreme Court Decision 2006Da13070, Jun. 15, 2007).

Therefore, the defendant's assertion on the welfare expenses of this case cannot be excluded from ordinary wages based on the above rules of employment, etc.

3) The Ministry of Employment and Labor’s guidelines for the calculation of ordinary wages, which are established by the Ministry of Employment and Labor, provides that the standard of determining whether the money or goods provided as a means of livelihood assistance or welfare to workers regardless of the working hours does not constitute ordinary wages. However, this does not have legal nature by itself under the administrative rules established by the Ministry of Employment and Labor, and its content is not consistent with the concept of wage and ordinary wages as prescribed by the Labor Standards Act. Therefore, the Defendant’s assertion on this cannot be accepted, since the instant welfare expenses cannot be excluded from ordinary wages, on the ground of

C. The duty to pay the unpaid amount of each of the instant statutory allowances

In full view of the purport of the argument in Gap evidence No. 4, as a whole, it is within three years retroactively from October 31, 201, which was the date of receipt of the complaint of this case, and the amount calculated by subtracting the plaintiffs' respective statutory allowances of this case already received from the statutory allowances of this case calculated based on legitimate ordinary wages including 120,000 won during the period from November 1, 2008 to January 1, 2012, which was sought by the plaintiff, is recognized as the same fact as the amount claimed by the plaintiff No. 2 of this case (the basis of calculation is the same as the data verifying various statutory allowances of each of the plaintiff No. 3).

According to the above facts, the defendant seems to have not paid the claim amount by the plaintiff 2 among the statutory allowances of this case to be paid in accordance with the Labor Standards Act.

Therefore, the Defendant is obligated to pay to the Plaintiffs the money calculated by deducting the instant welfare expenses from the ordinary wage calculated on the basis of the ordinary wage calculated on the basis of the ordinary wage calculated on the basis of the ordinary wage calculated on the basis of the instant ordinary wage, including the instant welfare expenses, at the rate of 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the day following the delivery of a written application for modification of the purpose of claim and the cause of claim on October 31, 2012 to the day of complete payment.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.