The method of determining whether the obligation to specify the items of wages, etc. when concluding a labor contract is fulfilled;

Articles 24 and 115 of the Labor Standards Act, Article 8 of the Enforcement Decree of the Labor Standards Act

Defendant

Prosecutor

Attorneys Kim full-time et al.

Seoul Eastern District Court Decision 2006No288 Decided September 5, 2006

The appeal is dismissed.

We examine the grounds of appeal.

1. In light of the records, the court below is justified in holding that the employment contract of this case, which takes effect from the date of entry into force of the instant annual salary contract, was entered into between the defendant and the non-indicted at the time of entry by the annual salary system, and that the contract of this case and the annual salary contract of this case were newly entered into with the revision of the employment rules on June 30, 2004, when entering into a new employment contract with the defendant at the time of entry, is justified. It is difficult to see that there was any error in the violation of the rules of evidence that the prosecutor determined that the employment rules of this case, which are not part of the employment contract of this case, were merely the post-establishment of the employment rules of this case or which

2. A. Article 24 of the Labor Standards Act provides that an employer shall specify wages, working hours, and other working conditions for workers at the time of concluding a labor contract, and in particular, considering the importance of the constituent items, calculation methods, and payment methods of wages among the working conditions, the above working conditions may be restricted. However, as to such specific methods, Article 8 of the Enforcement Decree of the Labor Standards Act provides that matters concerning the constituent items, calculation methods, and payment methods of wages shall be specified in writing. Meanwhile, Article 115 of the Labor Standards Act provides that an act violating Article 24 of the same Act shall be punished. As such, whether an employer fulfilled his/her duty to specify in writing the constituent items of wages at the time of concluding a labor contract shall be determined by comprehensively examining the employment contract, employment rules, etc. concerning the constituent items of wages.

B. (1) According to the records, Article 29 of the Rules of Employment of this case only provides for annual paid leave and does not provide for monthly paid leave or annual paid leave allowances anywhere. The employment contract of this case, annual salary contract of this case and rules of employment do not directly provide for annual paid leave allowances and family allowances under Article 45 of the Labor Standards Act. Although the composition of annual salary under Article 39 of the Rules of Employment of this case is the basic monthly pay, overtime allowances, business management allowances, position allowances (limited to management duties), the employment contract of this case, annual salary contract of this case, and rules of employment do not provide for the criteria for payment of business management allowances anywhere to the employment contract of this case and the annual salary contract of this case does not provide for the provisions concerning business management allowances, unlike the case of liability allowances.

(2) However, according to the records, since Article 29 of the Rules of Employment of this case only provides for annual paid leave when entering into the instant annual salary contract, unlike the previous provisions, the provisions on annual paid leave (Article 57) shall be abolished, integrated into annual paid leave days, and measures shall be taken to promote the use thereof, and the provisions on annual paid leave shall be amended (amended by Act No. 6974 of September 15, 2003) that amended the provisions on annual paid leave (Articles 59 and 59-2). Article 7 of the Rules of Employment of this case provides that “The provisions on annual salary and other matters concerning the amendment to the Rules of Employment of this case shall not apply to the instant case’s employment contract, even if the Nonindicted Party was the chairperson of the Staff Council,” and Article 2 of the Addenda of the Rules of Employment of this case provide that “The provisions on annual paid leave shall not apply to the company’s amendment of the Rules of Employment of this case’s employment before the enforcement date.”

(3) Meanwhile, in light of the records, even if the employment contract of this case, annual salary contract of this case, and rules of employment do not have a provision on temporary shutdown allowances under Article 45 of the Labor Standards Act directly, the above provision on temporary shutdown allowances under the supplementary provision of this case can be applied pursuant to the above supplementary provision of this case, and thus, it is difficult to deem that the above provision on the composition items of wages violates the duty to specify in writing.

(4) In addition, in light of the records, the fact that the employment contract of this case, annual salary contract, and rules of employment did not provide for family allowances is attributable to the fact that the payment of family allowances is decided not to pay family allowances, and it is difficult to find out the legal basis for the payment obligation. Thus, it is difficult to view that the act violated the duty to specify the items of wages in writing.

(5) According to the records, Defendant Company introduced an annual salary system based on the principle of performance for former workers. Article 39 of the Rules of Employment provides that the organization of the annual salary shall be calculated on a monthly basis, overtime allowance, business management allowance, position allowance, and liability allowance, as well as overtime work and night work allowance, separately from Article 41 (Overtime Work and Holidays Work) regarding the increase of wages for overtime work, night work, and holiday work, 50/100 of ordinary wages shall be paid in addition to the annual salary, if the company performs overtime work and night work (from 10:0 a.m. to 6:0 a.m.), and if the company performs overtime work, it shall be deemed that the company is not obliged to pay the annual salary for five (0) months or above, and the company shall not be obliged to pay the annual salary for five (0) months or above, in addition to the annual salary for five (0) months or above, if the company is obligated to do so on a monthly basis.

C. Ultimately, the judgment of the court below that the defendant cannot be deemed to have violated the duty to specify the constituent elements of wages is just and acceptable in conclusion, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal by the prosecutor.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)