Plaintiff (Counterclaim Defendant) 1 and 7 others (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Han River Passenger Co., Ltd. (Law Firm Sung, Attorneys Jeong Byung-hee et al., Counsel for defendant-appellant)

June 25, 2015

Incheon District Court Decision 2012Gadan214217 Decided October 23, 2014

1. Of the judgment of the court of first instance, the part against the Defendant (Counterclaim Plaintiff) regarding the main lawsuit shall be revoked, and all of the claims filed by the Plaintiff (Counterclaim Defendant) corresponding to the revoked part shall be dismissed.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant).

1. Purport of claim

[Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall pay to Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 1,108,751 won, 18,723,718 won to Plaintiff 2, 18,759,048 won to Plaintiff 3, 17,879,979,972 won to Plaintiff 4, and 10,672,194 won to Plaintiff 5, 22,296,746 won to Plaintiff 6, and 17,626,492 won to Plaintiff 7, and 20,346,154 won to Plaintiff 8, and 20% interest per annum from the day following the delivery of the complaint to the day of full payment.

[Preliminary Counterclaim] Plaintiff 1 shall pay to the Defendant 1,13,710 won, Plaintiff 2 shall be 1,784,240 won, Plaintiff 3 shall be 885,40 won, Plaintiff 4 shall be 2,55,943 won, Plaintiff 7 shall be 56,80 won, and Plaintiff 8 shall be 56,80 won with 20% interest per annum from the day following the delivery of the instant counterclaim to the day of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance regarding the counterclaim shall be revoked. The same shall apply to the claim for the counterclaim.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, it is citing it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the main claim

A. Determination on this safety defense

The defendant asserts that the lawsuit of the plaintiff 1, 3, and 7 is unlawful because it conflicts with res judicata, and thus, the plaintiff 1, 3, and 7 filed a lawsuit claiming wages against the defendant on March 23, 2011 (hereinafter referred to as "pre-trial lawsuit") with the Incheon District Court 201Na65962. The previous lawsuit claims allowance for work on weekly holiday as stated "the subject matter of the lawsuit is not provided," the claim for allowance from May 2008 to October 10, 201, the plaintiff 2, the plaintiff 358,768 won, the appellate court in the previous lawsuit, the plaintiff 2, the plaintiff 3, the plaintiff 2, the plaintiff 2, the plaintiff 2, the plaintiff 3, the plaintiff 2, the plaintiff 2, the plaintiff 3, the plaintiff 2, the plaintiff 3, the plaintiff 2, the plaintiff 2, the plaintiff 3, the plaintiff 2, the plaintiff 4, the remaining amount between the plaintiff 1 and the plaintiff 2, the plaintiff 3, the plaintiff 2, the plaintiff 2, the plaintiff 36.

Therefore, since the subject matter of the lawsuit of the above plaintiffs and the subject matter of the lawsuit of this case are not identical, it does not conflict with the res judicata. The defendant's defense of principal safety is without merit.

B. The parties' assertion

1) The plaintiffs' assertion

The Defendant calculated the hourly ordinary wage on the basis of only the basic salary, excluding bonuses, continuous service allowances, good faith allowances, and leave allowances, when paying overtime work allowances, night work allowances, weekly work allowances, holiday work allowances, annual work allowances, annual work allowances, and holiday allowances (hereinafter collectively referred to as the “instant statutory allowances”), and calculated the hourly ordinary wage on the basis of only the basic salary, excluding bonuses, continuous service allowances, good faith allowances, and leave allowances. As such, the Defendant included the bonus, continuous service allowances, good faith allowances, and leave allowances in ordinary wages, and calculated the hourly ordinary wage and paid the instant statutory allowances to the Plaintiffs.

Therefore, the Defendant is obligated to pay the amount stated in the purport of the claim to the Plaintiffs, which is the difference between the amount of statutory allowances of this case, which was determined based on ordinary wages, including bonuses, continuous service allowances, good faith allowances, and leave allowances, paid to the Plaintiffs from September 2009 to August 2012, minus the amount of the fixed legal allowances.

2) The defendant's assertion

Due to the characteristics of bus transportation business, the Defendant, as a matter of course, must naturally work overtime work, night work, holiday work, etc.; thus, the Defendant agreed with workers on overtime work, night work, holiday work, etc., and paid wages by means of a blanket wage system, which is the sum of wages and statutory allowances in this case regardless of actual working hours, and provided for in a collective agreement, wage agreement, etc., and in light of the amount of wages paid to the Plaintiffs, the Defendant’s payment of wages by the comprehensive wage system is no more unfavorable than the standard prescribed in the Labor Standards Act. Therefore, the Defendant’s payment of wages under the comprehensive wage system is valid. Therefore, since the Defendant’s payment of wages to the Plaintiffs includes the instant statutory allowances under the Labor Standards Act, the Defendant

In addition, the bonus, good faith allowance, continuous service allowance, leave allowance, etc. paid by the defendant to the plaintiffs are different depending on the conditions such as the number of years of service and the number of years of service, so it is not included in ordinary wages because it lacks fixedness.

C. Relevant legal principles

1) In principle, when an employer concludes a labor contract, it is deemed that it is difficult to calculate working hours based on the determination of basic wages for workers and the addition of various statutory allowances added according to the number of working hours. However, in cases where an employer and an employee are deemed to have difficulty in calculating working hours due to the nature of work, the employer and the employee should determine either the basic wages and statutory allowances as wages, or pay them in one amount including both parties as wages, and the basic wages shall be determined separately by setting a single comprehensive amount regardless of the number of working hours, or the two shall be determined by adding up various statutory allowances; and (3) the basic wages shall be determined by setting various statutory allowances regardless of the number of working hours, regardless of the number of working hours (hereinafter referred to as the “comprehensive wage system”); and the comprehensive wage system is valid when the employer does not disadvantage workers for reasons such as including working conditions that fall short of the standard prescribed by the Labor Standards Act, or when it is deemed justifiable in light of various circumstances (see, e.g., Supreme Court Decisions 2008Da57852, Dec. 10, 2013).

2) Whether an agreement on the comprehensive wage system was established ought to be specifically determined by comprehensively and comprehensively considering various circumstances, such as working hours, forms and nature of work, unit for wage calculation, details of collective agreement and employment rules, and actual conditions of the same workplace (see, e.g., Supreme Court Decisions 2008Da57852, Dec. 10, 2009; 90Meu6934, Nov. 27, 1990).

D. Determination

1) An express agreement on the comprehensive wage system

In the wage agreement in 2009 and 2010, "monthly wages are the amount including all legal allowances at the full time except for accident-free allowances and continuous service allowances, and the number of working hours per day shall not be calculated on a daily basis in consideration of the incorrect working hours, seasonal factors, etc. in light of the characteristics of route buses, and shall be calculated on a daily basis at least 3 hours and 25 minutes per day, calculated on an average of 17 hours per day (excluding recess hours) and paid as the number of working days per day in a comprehensive manner." In the deposit agreement in 2011, the provision that "the monthly wage is calculated on a daily basis and paid as 19 hours per day according to the comprehensive wage method" is that "the wage agreement in 2012 includes all allowances that may arise in the daily operation, considering the characteristics of the daily operation system, and the wage schedule recognizes that the comprehensive wage schedule includes the convenience of payment prior to each other."

In addition, the wage agreement in 2009 states that the total monthly payment shall be KRW 1,812,200, the total monthly payment shall be KRW 1,965,470, and the wage agreement in 2010 states that the monthly payment shall be made by applying the number of working days in accordance with the wage table calculated by the method of wage calculation in 201, the wage agreement in 201 states that monthly pay shall be KRW 1,261,156, and that the wage agreement in 2012 states that monthly pay shall be KRW 1,261,156, and that the basic pay, overtime pay, night work allowance, weekly paid allowance, etc. indicated as fixed amount in the agreement in 209 shall be increased by 4% in a lump sum, and that the agreement in 2010 also states that each of the above allowances shall be increased by 2% in a lump sum.

According to the above facts, it is judged that there was an express agreement between the plaintiffs and the defendant to pay wages and pay wages by applying the comprehensive wage system.

(ii) difficulties in assessing working hours;

In full view of the following circumstances, comprehensively taking account of the respective descriptions and arguments stated in Gap evidence 4, 6, 7, and Eul evidence 2, 7, 8, 16, 24, 27, 29, and 30, it is difficult to pay wages in the way of calculating and paying statutory allowances in excess of the contractual hours, such as a general employment contract in this case, if the plaintiffs and the defendant agreed to provide contractual work hours, and if the hours exceed the contractual work hours after calculating the actual working hours, the agreement on the application of the comprehensive wage system between the plaintiffs and the defendant is deemed valid unless there are special circumstances.

① Due to the characteristics of cross-country bus transportation business run by the Defendant, the Plaintiffs’ working hours vary depending on individual factors, such as road conditions, real-time traffic conditions, driving conditions, prime time (time prior to departure, commuting, night night, night night, etc.), weather conditions, operation period (time prior to departure), etc., and driving hours for each driver, driver’s allocation time, driver’s attitude, driving habits, etc. As such, it is difficult to confirm that the Plaintiffs’ working hours take three-hours from the departure to the arrival of a specific bus, and thus, it is difficult to confirm whether the entire hours were used for work, whether the entire hours were faithfully provided.

② In light of the Plaintiffs’ work patterns, the driving distance of Defendant bus routes, and the operational courses, etc., the Plaintiffs were naturally expected to work for more than 8 hours on work day, and for more than 10 p.m. and for more than 10 p.m. holidays. Therefore, unlike the ordinary employment contract that takes place on overtime work, night work, and holiday work, the Plaintiffs’ work was naturally planned to work overtime, night work, and holiday work hours on a regular basis, and due to the foregoing circumstances, it is difficult for the Defendant to confirm the Plaintiffs’ extended working hours, night work hours, and holiday work hours.

③ Whether to implement the instant employment contract can be determined by the Plaintiffs’ completion of the five-time work hours agreed with the Defendant, and did not have been determined by the Plaintiffs’ total working hours. The Plaintiffs did not think that wages would have decreased if the five-time work hours are shorter than the number of hours on the working day, and that wages would have decreased if the wage would increase if the number of night work hours is less than the number of hours, and that wages would have decreased if the number of night work hours is less than the number of night work hours, and there was no need to suspend operation due to the completion of the work of the total working hours per day during the five-time work period, to demand replacement of drivers, and to retire. Defendant also did not instruct the Plaintiffs who completed the five-time work hours to operate the additional operation on the ground that the total working hours per day remains.

④ In managing and supervising the Plaintiffs’ operation by establishing the management center on a regular basis by means of electronic tacomerta, CCTVs, etc., it would not be technically and physically impossible to measure the hours of contractual work, overtime work, night work, and holiday work. However, it would be likely that considerable expenses would be incurred. However, there is no evidence to prove that the Defendant had intentionally failed to take the above measures against the Plaintiffs’ demand or desire despite the economic potential, and there is no evidence to prove that the Defendant and similar companies were taking the above measures.

3) Determination on the disadvantage of the plaintiffs and other circumstances

A) There is no evidence to acknowledge that each of the instant wage agreements on the inclusive wage system violated the Labor Standards Act, such as the minimum wage system, or was concluded for the purpose of avoiding the Labor Standards Act.

B) As seen earlier, each of the instant wage agreements sees 5 hours in overtime work, 4 hours in night work, and 3 hours in overtime work (2009, 2010), and 19 hours in day working hours as overtime work (201, 2012) as well as 201 hours in each of the instant wage agreements sees that there are the provisions as seen earlier. This is also deemed to be inconsistent with the comprehensive wage system recognized earlier.

However, in full view of the following circumstances admitted by the evidence as seen earlier, the Plaintiffs and the Defendant are not stated in the wage agreement with the intent to be bound by each of the above working hours, but merely on a formal basis to indicate that their wages and working hours are not in violation of the Labor Standards Act, due to the relationship that stipulates the wage and working hours in the wage agreement under Article 17(1) of the Labor Standards Act.

① There is no evidence to prove that there was a special change in the Plaintiffs’ labor form or the Defendant’s wage payment form from 2009 to 2012. The wage agreement for each corresponding year states that the inclusive wage scheme is stipulated, and the wage agreement for the year 2012 states that “The wages (which are divided into basic wages, overtime work, night work, holiday work, and holiday work) are only divided into wage items for the convenience of wage payment.”

② Each wage agreement in 2009 and 2010 states that daily working hours are 17 hours, 5 hours a week overtime, and 4 hours a night work. However, the Plaintiffs were working regardless of the aforementioned hours. The Plaintiffs and the Defendant did not intend to observe the said hours, or to measure or record working hours, and the Defendant did not have to calculate the contractual working hours, statutory working hours, and accordingly, paid basic wages and statutory allowances.

③ In each wage agreement in 2011 and 2012, the Plaintiffs’ working hours are 19 hours a day, and the contractual working hours are 16 hours and 3 hours a day, but this is also considered to be merely a formal entry on the same grounds as the examination on the working hours in 209 and 2010. In particular, in the wage agreement in 2011 and 2012, the total working hours per day are increased by 2 hours a day, and there is no content on night work hours, and there is no evidence to acknowledge that the working conditions in 201 and 2012 were changed accordingly.

C) As seen earlier, each of the instant wage agreements states the amount of basic wages (e.g., the monthly wage) in addition to the total monthly payment, seems to be inconsistent with the comprehensive wage system recognized earlier.

However, as seen earlier, the wage agreement in 2010 states that the monthly wage rate is below KRW 5,458.2 and the monthly wage rate is below KRW 6,603.2. As such, the reason why the wage rate is below KRW 6,603 is determined at a time is not because the Plaintiffs and the Defendant first determined the basic wage or ordinary wage and paid the statutory wage added to working hours based on the basis of the aforementioned determination (hereinafter “general wage payment method”) but the fact that the Plaintiffs and the Defendant adopted the comprehensive wage system and determined the total monthly wage amount by adopting the comprehensive wage system, but on the other hand, it appears that the monthly wage amount determined by the comprehensive wage system in order to make the appearance as consistent with Article 56 Section 1 of the Labor Standards Act on the general payment method, compared with each other’s working hours, derived from the basic wage and various legal allowances items, and entered them in the comprehensive wage agreement, and thus, it appears that the total monthly wage amount was not hindered in each of the instant comprehensive wage payment agreements.

4) Sub-committee

Each of the instant wage agreements is a comprehensive wage system that applies in cases where it is difficult to calculate working hours, and is legitimate in light of all circumstances without disadvantage to the plaintiffs.

Therefore, since the wages that the Defendant received to the Plaintiffs under each collective agreement and each of the wage agreements of this case include the basic wages determined by the Plaintiffs and the Defendant as a fixed amount and the statutory allowances of this case, there is no additional allowance to be paid by the Defendant to the Plaintiffs.

Therefore, the plaintiffs' claims seeking additional payment of statutory allowances of this case are without merit under the premise that each of the instant wage agreements is not a comprehensive wage system, or that it is invalid due to the violation of the Labor Standards Act.

3. Conclusion

Therefore, the plaintiffs' claim of the main lawsuit shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair, the defendant's appeal shall be accepted, and the part against the defendant as to the main lawsuit in the judgment of first instance shall be revoked, and all of the plaintiffs' claims corresponding to the revoked part shall be dismissed. It is so decided as per Disposition (as the plaintiffs' claim of the main lawsuit in this case is accepted in the judgment of first instance, it is decided not to separately decide on the defendant's claim of the main lawsuit in this case, and as the plaintiffs' claim of the main lawsuit is rejected in the judgment of first instance, the part concerning the main claim in the judgment of first instance

Judges Mod Sick(Presiding Judge) et al.

1) An employer shall, in addition to the ordinary wages, pay 50 percent or more thereof for overtime work (work during the hours as extended pursuant to Articles 53 and 59 and the proviso of Article 69), night work (work between 10:0 p.m. and 6:0 a.m.), or holiday work.