[1] Requirements for validity of a wage payment contract or collective agreement based on the comprehensive wage system, and standard for determining whether an agreement on the comprehensive wage system has been established

[2] In a case where Eul et al., employed as a bus driver of Gap corporation, sought payment of additional statutory allowances from Gap corporation, the case holding that the judgment below rejected Eul et al.'s claim on the ground that the comprehensive wage agreement was explicitly established, on the ground that the wage agreement entered into between Eul et al. and the labor union to which Eul et al. belong, provided that overtime work allowances, night work allowances, etc. should be divided and paid separately from the basic salary, and the wage system under the wage agreement does not include an agreement on the comprehensive wage system, and that the wage system is not included in the wage agreement, but it does not coincide with the wage payment practice of Gap corporation

[1] In principle, when an employer concludes an employment contract, the employer determines the basic wage for workers and pays an aggregate of various allowances based on the determination of the basic wage. However, if an employer and an employee agreed to pay a certain amount as a statutory allowance without setting the basic wage as a monthly wage or daily wage, or setting the basic wage in advance, while setting a certain amount as a statutory allowance without distinguishing it from the number of working hours, the wage payment contract or collective agreement based on the so-called comprehensive wage system, which stipulates that a certain amount shall be paid regardless of the number of working hours, is not disadvantageous to workers, such as including working conditions that do not meet the standard prescribed by the Labor Standards Act, and

Whether an agreement on the comprehensive wage system has been established ought to be specifically determined by comprehensively and comprehensively taking into account various circumstances, such as working hours, form and nature of work, unit for wage calculation, details of collective agreement and rules of employment, and actual conditions of the same workplace in the same kind, etc. In an individual case, even if it is naturally anticipated to provide overtime, night, and holiday work, if a collective agreement, rules of employment, or wage regulations stipulate that overtime, night, and holiday work allowances, etc. shall be paid separately from the basic wage, separately from the basic wage, it does not constitute the comprehensive wage system. Moreover, it cannot be readily concluded that there was an agreement on the comprehensive wage system, solely on the ground that there was an agreement on overtime hours in excess of a certain working hours in a collective agreement, etc., or that the wage increase rate was set based on

[2] In a case where Eul et al. employed as a bus driver of Gap corporation sought additional statutory allowances from Gap corporation for the payment of ordinary wages to Eul corporation, the case holding that Gap corporation's payment of overtime allowance, night work allowance, etc. separately from the basic salary in the wage agreement entered into between Eul et al. and the labor union to which Eul et al. belong, and Gap corporation actually paid Eul et al. wages according to the detailed items stated in the wage agreement, the wage agreement is deemed to have been formed, and the wage system under the wage agreement is merely the form of monthly remuneration, and it does not include an agreement on the comprehensive wage system, on the basis of a prior agreement on the agreed working hours in excess of the statutory standard working hours, and it stated that Gap corporation would pay wages in the comprehensive wage system, but it stated that Gap corporation paid separate statutory allowances in addition to the monthly fixed amount, and that various allowances not stated in the wage agreement were paid separately in accordance with the relevant wage payment standards, and that the aforementioned comprehensive wage agreement does not expressly stipulate the basic wage agreement and the aforementioned comprehensive wage provision.

[1] Articles 2(1)5, 15(1), 17, and 56 of the Labor Standards Act / [2] Articles 2(1)5, 15(1), 17, and 56 of the Labor Standards Act

[1] Supreme Court Decision 96Da24699 delivered on March 24, 1998 (Gong1998Sang, 1131)

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

Plaintiff 1 and one other (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Han River Passenger Co., Ltd. (Law Firm Sung et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2015Na50156, 50163 decided August 13, 2015

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. In principle, when an employer concludes a labor contract, it is reasonable to determine a basic wage for workers and pay an aggregate by adding various allowances based on that determination (see Supreme Court Decision 96Da24699, Mar. 24, 1998). However, if an employer and an employee enter into a wage payment contract or collective agreement based on the so-called comprehensive wage system with the content that the amount included in statutory allowances shall be determined as a monthly wage or daily wage without setting the basic wage in advance, or the basic wage shall be determined in advance without distinguishing legal allowances from the number of working hours, and that a certain amount shall be determined as a statutory allowance and shall be paid regardless of the number of working hours, if it is deemed justifiable in light of various circumstances without disadvantage to workers, such as including working conditions that do not meet the standard prescribed in

Whether an agreement on the comprehensive wage system has been established ought to be specifically determined by comprehensively and comprehensively taking into account various circumstances, such as working hours, form and nature of work, unit for wage calculation, details of collective agreement and rules of employment, and actual conditions of the same workplace in the same kind, etc. In an individual case, even if it is naturally expected that overtime, night, and holiday work is performed by nature of work, if a collective agreement, rules of employment, or wage regulations stipulate that overtime, night, and holiday work allowances, etc. should be paid separately from basic pay, it does not constitute the comprehensive wage system. Furthermore, it cannot be readily concluded that there was an agreement on the comprehensive wage system, solely on the ground that there was an agreement on overtime hours in excess of a certain working hours in a collective agreement, etc., or that there was an amount set based on the amount including basic

2. A. We examine the reasoning of the lower judgment and the circumstances indicated in the record in light of such legal doctrine.

1) The wage agreement concluded between the labor union to which the Plaintiffs were employed and the Defendant from 2009 to 2012 stipulates that overtime work allowances, night work allowances, etc. shall be paid separately from basic pay. In addition, each of the above wage agreement stipulates that wages shall be paid in accordance with the wage table, and the wage table indicates the total amount of the above detailed items and the amount thereof depending on the number of working days. In addition, the Defendant paid wages to the Plaintiffs as the monthly wage table, and the monthly wage statement also indicates the amount by distinguishing the detailed items, and the amount by the detailed items in the wage statement corresponds to the amount by the detailed items in the wage table. Accordingly, the Defendant can be deemed to have actually paid the Plaintiffs’ wages in accordance with the detailed items in the wage agreement, the wage table, and the wage statement.

2) According to the wage agreement from 2009 to 2012, under the premise that the drivers of the Defendant employed by the Defendant were operating a route set at five times a day in the form of daily work, the number of overtime work hours and night work hours are set in advance and the number of overtime work hours and night work hours. Furthermore, each of the above wage agreement separately sets the basic pay. Based on such basic pay rate, the wage system under the wage agreement from 2009 to 2012 includes a total of the basic pay for monthly work hours under the premise that the drivers were operating a route set at five times a day in the form of daily work. Considering such circumstances, the wage system under the wage agreement only includes the basic pay for the number of overtime work hours and night work hours under the Labor Standards Act, based on the number of overtime work hours and night work hours under the said basic pay rate, and also includes the monthly wage amount. From 2012 to 2012, the wage system can not be said to include the basic pay in the form of the monthly wage agreement and the monthly wage payment.

3) In each of the above wage agreements, the phrase “the monthly wage is the amount that includes all legal allowances at the end of the day (2009, 2010, and 2010)”, “The wage system is a comprehensive wage system including all allowances that may arise from the operation of the day (2011)”, and “the wage system is a comprehensive wage system including all allowances that may arise from the operation of the day, and the wage table is divided into wage items for the convenience of the payment of wages (the wage agreement in 2012).” However, the above provision is inconsistent with the Defendant’s practice of the payment of wages.

A) The Defendant has separately paid the “drawing allowance”, which is a holiday allowance under Article 56 of the Labor Standards Act, to the workers who provided labor on contractual holidays. The annual allowance also paid the basic daily pay from October 201 to the worker who provided labor regardless of full attendance or full attendance. As such, even though the Defendant stated that various statutory allowances were included in the wage agreement in 209, 2010, and 2012, the Defendant paid a separate statutory allowance in addition to the monthly fixed amount.

B) The wage agreement in 2011 and 2012 has a separate provision that various allowances, such as bonuses, cut allowances, etc. not shown in the wage table, shall be paid in accordance with the relevant monthly payment criteria.

C) In the wage agreement of 2011 and 2012, the monthly wage for which basic pay and allowances shall be paid collectively is not set forth in the wage agreement of 2010. Moreover, although the monthly inclusive wage is set at KRW 1,965,470 in the wage agreement of 2010, the wage agreement of 2010 does not indicate that the monthly wage according to the number of days is KRW 1,965,470 in the wage agreement of 201 and the wage statement is written in accordance with the wage table, it is difficult to view that the comprehensive wage specified in the wage agreement of 2010 was actually paid.

B. Nevertheless, the lower court determined that an inclusive wage agreement was explicitly established on the sole basis of the circumstances indicated in its holding, and rejected the Plaintiffs’ claim seeking additional statutory allowances upon the determination of ordinary wages. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of an inclusive wage agreement, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jung-hwa (Presiding Justice)