2017Da34080 Wages

person

A

Attorney Lee Jae-ho, Counsel for the plaintiff-appellant

Public-service advocatese, broro and Kim Yong-mar

B Limited Partnership Company B

Law Firm Newly Inserted by Presidential Decree No. 2010

Attorney Cho Yong-il, Attorneys Lee Jin-hoon, Lee Jin-hun, Lee Jin-hun, and Nam-young

Daejeon High Court Decision 2016Na1173 decided July 20, 2017

July 25, 2019

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Comprehensively taking into account the details and structure of the provisions related to the Constitution and the Minimum Wage Act, the legislative intent and legislative process of Article 6(5) of the Minimum Wage Act (hereinafter “Special Provision”), the purport of the Passenger Transport Service Act, the public nature of taxi transport business, and circumstances before and after the agreement on the reduction of contractual work hours, etc., where the employer agreed with the taxi driver trade union to reduce only contractual work hours without changing the actual work environment or work hours, in order to increase the external shape of fixed wage per hour calculated based on contractual work hours, with the intent to avoid the fixed wage, excluding the wage calculated on the basis of output under the fixed taxi commission scheme, excluding the minimum wage, from the wage calculated on the basis of the contractual work hours (see, e.g., Supreme Court en banc Decision 2016Da2451, Apr. 18, 2019).

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Defendant is a limited partnership that runs the taxi transport business, and the Plaintiff (appointed parties) and the designated parties (hereinafter collectively referred to as “Plaintiff, etc.”) are taxi drivers employed by the Defendant, who are employed by the Defendant.

2) On December 1, 2006, the president of the DUnion B trade union and the Defendant agreed on the contractual work hours of taxi drivers employed by the Defendant on December 1, 2006 at 6 hours and 40 hours a day and 10 hours a day. However, in fact, the Plaintiff et al. paid a certain amount of transport earnings to the Defendant under the name of taxi commission, and reverted the remainder of transport earnings excluding this, to the Plaintiff et al., and received wages by the Defendant under the so-called fixed taxi commission scheme, which is the method of receiving a certain fixed wage from the Defendant. 4) during that period, the Special Provision, amended by Act No. 8964, Mar. 21, 2008, went into force in the Daejeon Metropolitan City area where the Defendant was located, excluded from “wages calculated according to output within the scope of wages calculated at the minimum wage.”

5) On September 30, 2009, the branch of the D Trade Union B and the Defendant entered into the instant wage agreement with the content that the contractual work hours were changed to 4 hours a day and 24 hours a week. However, the actual work environment or operation hours was not changed due to the change of contractual work hours.

B. Examining such factual basis in light of the aforementioned legal principles, the part on contractual work hours under the wage agreement of this case was modified to increase the fixed hourly wage calculated on the basis of contractual work hours with the intent to avoid the amount below the minimum wage, excluding the wages calculated on the basis of output according to the enactment of the Special Provision, and is null and void as an evasion of the law to avoid the application of the Special Provision, etc., which is a mandatory law. Nevertheless, the lower court did not accept all the Plaintiff, etc.’s claim seeking wages below the minimum wage under the premise that the agreement on the reduction of contractual work hours under the wage agreement is valid on the grounds as indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation and application of the Special Provision, thereby adversely affecting

3. 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 on the bench.

Justices Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee

A person shall be appointed.