[1] Whether the reduction of working hours during the winter period should be considered in calculating the hourly ordinary wage (negative)

[2] The case where the employer can offset the worker's wage claim by using the right to claim the return of excess wages as an automatic claim

[3] Where there is no provision, agreement, or practice regarding the payment of wages during the industrial action period, whether a claim for wages has occurred (negative)

[1] Even though working hours are reduced according to the service regulations during the same season, this is merely a convenient measure taking into account the policy factors of energy saving and seasonal factors, and does not intend to increase the hourly ordinary wages of workers. Thus, such a reason cannot be considered in calculating the number of working hours per month, which serves as the basis for calculating hourly ordinary wages.

[2] Generally, wages are paid in full to workers. As a matter of principle, it is difficult for an employer to offset a claim against a worker’s wage claim against the worker in principle, or when the wage is paid in excess due to an error in calculation, etc., it is reasonably close as to the time when the event was paid in excess, the adjustment of wages, and the substance of adjustment, and there is no risk of undermining the stability of the worker’s economic life by pre-announcement of the amount and method, or when the worker claims wages or retirement allowances that have not been paid during his/her employment, it is difficult to offset the excess amount by the right to claim the return of wages

[3] Under the current positive law such as the Labor Standards Act, wages are referred to as "compensation for work provided by an employee under the direction and disposition of the employer, i.e., "compensation for work." Thus, unless a collective agreement or rules of employment, etc. provides for the payment of wages at the time of an industrial action, or there is an agreement or practice between the parties to such an agreement or practice, the principal right and obligation such as the duty to provide labor shall be suspended during the industrial action period in which the employee did not provide labor, and the right to claim wages does not arise, and the scope of wages for which the right to claim payment does not arise are limited to the so-called exchange part of the wages. On the premise of a normal employment relationship where the employer is able to exercise the right to command the labor for the provision of labor, it cannot be said that there is an intention to pay wages between the parties to the industrial action or to pay wages to the employee during the period of the industrial action.

[1] Articles 19(2) and 42 of the Labor Standards Act, Article 31 of the Enforcement Decree of the Labor Standards Act / [2] Article 36(1) of the Labor Standards Act / [3] Articles 18 and 36(2) of the Labor Standards Act, Article 3 of the Labor Dispute Mediation Act

[1] [2] Supreme Court Decision 94Da18553 decided Jun. 29, 1995 (Gong1995Ha, 2516) / [1] Supreme Court Decision 90Meu12493 decided Dec. 26, 1990 (Gong1991, 618), Supreme Court Decision 90Da14758 decided Jun. 28, 1991 (Gong1991, 2015), Supreme Court Decision 91Da1202 decided Feb. 11, 1992 (Gong192, 984) / [2] Supreme Court en banc Decision 94Da26721 decided Dec. 21, 195 (Gong1996, 198; 29Da39799 decided Dec. 39, 197) / [309Da197979 decided Feb. 19, 1996]

Plaintiff 1 and 39 others (Attorneys Hun-Ba et al., Counsel for the plaintiff-appellant)

Jongno-gu Seoul Metropolitan Government Medical Insurance Association

Seoul District Court Decision 94Na7019 delivered on November 24, 1995

1. Each appeal against the defendant against the plaintiff 13 and 20 shall be dismissed. 2. The part of the judgment below against the defendant as to the part of the plaintiffs' claim for allowances for good attendance, excluding the plaintiff 13 and 20, is reversed, and that part of the case is remanded to the Panel Division of the Seoul District Court. 3. The defendant's remaining appeal and the plaintiffs' appeal are dismissed. The costs of appeal against the dismissed appeal are assessed against each appellant.

1. Ex officio, the claim of the plaintiffs 13 and 20 was dismissed by the court below, and the defendant won all of the above plaintiffs, so the defendant's appeal against the above plaintiffs against the above plaintiffs is unlawful as it is without any interest of appeal, and thus, it shall not be dismissed.

2. We examine the plaintiffs' attorney's grounds of appeal.

A. On the first ground for appeal

If working hours are reduced at the same time, the argument that the hourly ordinary wages should be adjusted again is not only an attack against the judgment of the court below on the grounds that the court below did not claim in the court below, but also a convenient measure that takes into account the policy factors such as energy saving and seasonal factors, but also does not purport to increase the hourly ordinary wages. Therefore, this reason is not to be considered in calculating the number of the monthly working hours that serve as the basis for calculating the hourly ordinary wages (see, e.g., Supreme Court Decision 90Meu12493, Dec. 26, 1990), and the decision of the court below to the same purport is just, and there is no error of law by misunderstanding legal principles as to the calculation of the aggregate wages. The argument is either vague or without merit.

B. On the second ground for appeal

In general, since wages are paid in full to workers, in principle, the employer cannot offset the worker's claim against the worker's wage claim. However, the court below's decision to the same purport is just and there is no possibility of undermining the stability of the worker's economic life, such as the time when the wage was paid in excess and the adjustment of wages, and the amount and method are reasonably close as much as not losing the substance of the adjustment when the wage was paid in excess due to an error in the calculation, etc., or when the worker claims wages or retirement allowances which were not paid in his/her service, it is difficult to offset the worker with his/her right to claim the return of the excess wages as his/her automatic claim (see, e.g., Supreme Court Decisions 93Da28737, Oct. 12, 1993; 94Da26721, Dec. 21, 1995). There is no error in the misapprehension of legal principles as to the offsetting of wages.

3. We examine the defendant's grounds of appeal.

A. Under the current positive law, such as the Labor Standards Act, the wage is referred to as "price for work provided by an employee with his/her own labor under the direction and disposition of the employer, i.e., remuneration for work." Thus, unless the collective agreement or rules of employment, etc. provides for the payment of wages at the time of industrial action or it is recognized that there is an agreement or practice between the parties to the labor contract, etc., the principal right and duty to provide labor should be suspended as the principal right and right of the worker in the payment relationship during the industrial action period in which the worker did not provide labor, and the scope of wages for which the right to claim the payment does not arise shall not be limited to the so-called exchange part among the wages. The wage scope that does not arise is limited to the so-called exchange part among the wages. On the premise of the ordinary employment relationship that the employer is able to exercise the right to command labor for the provision of labor, or there is a practice that the employer did not provide labor for the provision of labor, and thus, the employer cannot pay wages between the parties to industrial action (see 197.2).

Nevertheless, while recognizing the fact that the plaintiffs engaged in the strike between October 23, 1989 and December 28, 198, the court below held that the worker who did not provide labor to the employer due to the industrial action cannot claim wages which are generally paid for work. However, the scope of wages for which the right to claim payment does not exist is limited to the former among the interchangeal part paid for the actual labor out of the wages and the part for which the status as the worker is guaranteed by the former, the defendant has a duty to pay allowances to the plaintiffs on January 20, 190 pursuant to the above operational regulations. Accordingly, the court below erred by misapprehending the legal principles on the payment of wages during the period of industrial action and by misapprehending the interpretation of the operational regulations of the defendant union, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

B. As to the remaining part against the Defendant, there is no indication in the grounds of appeal in the petition of appeal, and the Defendant did not submit the appellate brief within the statutory period.

4. Therefore, the Defendant’s appeal against Plaintiff 13 and 20 is unlawful, and thus, each of the appeals is dismissed. Of the judgment below, the part against the Defendant regarding the part regarding the part regarding the claim for allowances for good attendance of the Plaintiffs other than Plaintiff 13 and 20 is reversed, and that part of the case is remanded to the Seoul High Court. Each of the Plaintiffs’ remaining appeals except Plaintiff 13 and 20 and the remainder of the Defendant’s appeal are all dismissed. It is so decided as per Disposition by the assent

Justices Cho Chang-tae (Presiding Justice)