Plaintiff 1 and four others (Attorney Park Jong-hoon, Counsel for the plaintiff-appellant)

Korea

October 25, 2007

Seoul Central District Court Decision 2006Gaso141489 Decided December 26, 2006

1. The part of the judgment of the court of first instance against the plaintiffs, which orders payment under the above, shall be revoked.

The defendant shall pay to the plaintiff 1 324,103 won and its related amount from September 6, 2004; from October 16, 2004 to the plaintiff 2; from the plaintiff 1,572,275 won; from November 1, 2004 to the plaintiff 3; from November 1, 2004 to the plaintiff 4; from the plaintiff 1,814,935 won; from January 1, 2005 to the plaintiff 5; from January 1, 2005 to December 13, 2007; and from the next day to the full payment date, the amount of 5% per annum from each of them shall be paid.

2. The plaintiffs' remaining appeals are dismissed.

3. Of the total litigation costs, 2/3 shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the court of first instance shall be revoked. The defendant shall revoke the judgment of the court of first instance against the plaintiff 1 on September 6, 2004 with respect to the amount of KRW 514,180 and the above amount of KRW 514,180 from September 6, 2004; from October 16, 2004 with respect to the amount of KRW 1,84,755 and the above amount of KRW 2,721,706 to the plaintiff 3; from November 1, 2004 to the plaintiff 4; from January 1, 2005 with respect to the amount of KRW 6,843,421 and the above amount of KRW 1,741,244 and the above amount to the plaintiff 5 from January 1, 2005 to the delivery date of a duplicate of each complaint of this case; and from 20% per annum to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account each entry in Gap evidence 1 through 7, Gap evidence 1 through 3, Eul evidence 9-1 through 5, Eul evidence 11 and 12, Eul evidence 1 through 3, Eul evidence 4-1 and 2, Eul evidence 5 through 10, Eul evidence 11-1 through 5, Eul evidence 12-1 and 2, Eul evidence 13-1 through 27.

A. The “Maritime Welfare Service Support Group” under the Ministry of National Defense, under the Ministry of National Defense, under the jurisdiction of the defendant, is an institution established to manage and operate all welfare affairs and welfare facilities in the Navy in a reasonable manner to boost the morale of soldiers and civilian employees (including family members) and to improve the welfare of the Navy, and operates and manages the “Man-si Physical

B. “The Navy’s Welfare Service Support Group” shall annually prepare guidelines for the amount of wages of the workers within the scope of the budget allocated to the Navy through the Central Welfare Committee of the Navy, and then pay wages to the workers under its jurisdiction. However, various allowances are paid in accordance with the Public Officials Remuneration Regulations.

C. According to the Public Officials Remuneration Regulations, without calculating the actual overtime work hours for all employees except in extraordinary civil service, the fixed amount is paid as follows on the basis of the grade determined according to the above Regulations for the purpose of “over-time work allowance” each year, without calculating the hours of overtime work for all employees, as follows: ① a person holding a national technical qualification certificate, ② a person holding a non-qualification certificate or a person with considerable skills, ③ a person engaged in other types of occupation (e.g., bad environment) and a person engaged in overtime work and holiday work, and a person engaged in overtime work and holiday work, with additional payment of “special allowances” (from 50,000 to 350,000) according to the grade determined by the Deliberation Committee following a resolution of the Deliberation Committee.

Criteria for payment: 70 percent of monthly wage (each grade 10 salary class) ¡¿ 1.5/192 ¡¿ 13 hours;

92,280 won 86,810 won 7,900 won 69,800 won 62,600 won 62,600 won 56,630 won of class 5,67,800 of class 8, 910 of class 5, 67,800 of class included in the main sentence.

Criteria for payment: 70 percent of monthly wage (each grade 10 salary class) ¡¿ 1.5/192 ¡¿ recognized hours.

Saturdays and night workers - 20 hours (physical training course, etc.)

Saturdays and US Workers - 13 hours

149,760 won 140,890 won 126,420 won 113,300 won, 101,590 won, of class 5, class 6, class 7, class 8, class 9, class 10, class 5, class 7, class 8, class 9, class 10 included in the main sentence

D. Meanwhile, according to the Guidelines for the Payment of Service Fees by the “Maritime Welfare Support Group”, 40% of them is equally paid to all the employees who work in the restaurant (so-called “garage club” or “gynite”) in the above physical training center under the pretext of “service fees” after receiving a fixed amount of service fees (8%) from customers using sports facilities or restaurants in the physical training center, and the payment of service fees was suspended on May 1, 2004. The above “service fees” was discontinued as of May 1, 2004.

E. The plaintiffs are those who worked at the above cafeteria cafeteria (Yebage clubs) or the above cafeteria cafeteria 2, and the plaintiffs 1 are those who worked at the cafeteria 2, 2004 from March 16, 2004 to September 5, 2004, and the plaintiffs 2 were the cooks (class 1) from March 16, 2004 to October 15, 2004, and the plaintiffs 3 were those 10th 10 to 31. 4th 2, 2004 and 10th 3th 10 to 10th 4th 2, 2004, 20th 10 to 10th 4th 2, 201, 30th 10 to 10th 31, 204, 20th 10 to 31. 31th 2, 2014.

2. The assertion of the parties and their determination

A. The parties' assertion

The plaintiffs asserts that since the amount paid by the "Maritime Welfare Service Support Group" to the plaintiffs under the pretext of "over-time work allowance" does not reach the amount calculated pursuant to Article 55 of the Labor Standards Act based on the hours of actual overtime work performed by the plaintiffs, the defendant is liable to pay the plaintiffs each amount as stated in the attached Table 1 "total" corresponding to the difference, and the damages for delay.

In regard to this, the defendant asserts to the purport that it is unreasonable to claim overtime work allowances in addition to the above, since the defendant paid overtime work allowances to the cafeteria workers who are expected to have overtime work due to the characteristics of their work, including overtime work allowances under the names of “over-time work allowance”, “special allowance” and “service fee.”

B. Whether a comprehensive wage contract for overtime work allowances is established

In light of the above facts, the plaintiffs are those who work as a volunteer or cook at a restaurant in the physical training center, where it is difficult to calculate working hours, form of work, or nature of work, and overtime, night, and holiday work are naturally expected. Meanwhile, the "Maritime Welfare Support Group" shall prepare guidelines for the wages of the workers within the scope of the budget allocated each year through the Maritime Welfare Committee, and shall pay them based on such guidelines. Various allowances are paid corresponding to the Rules on the Remuneration of Public Officials. The above guidelines for the wages of the workers or the Rules on the Remuneration of Public Officials contain working conditions such as wages of the workers including the plaintiffs, and the above guidelines for the payment of service allowances are at least the so-called rules on working hours. According to the above guidelines for the wages of the workers and the Rules on the Remuneration of Public Officials, according to the above guidelines for the long-term service workers and the Rules on the Remuneration of Public Officials, the above guidelines for the payment of service allowances to the workers who work outside of the military without the above comprehensive payment guidelines for overtime work hours are to be made every year.

On the other hand, the defendant asserts that the "Special Work Allowances" was paid for overtime work allowances under the comprehensive wage contract in this case. However, according to the above circumstances acknowledged by the aforementioned comprehensive wage contract and the Rules on the Rules on the Rules of the Public Officials, the person eligible for the special work allowances shall be determined as ① the person holding the national technical qualification certificate if he/she is in the duty of technical request from among the center, hotel, physical training center, and school affairs center, ② the person holding the certificate of qualification or considerable skills, ③ the person engaged in other evaded occupation (highly bad environment) and the person in excess of hours and holidays. In determining the specific payment conditions, the defendant paid the special work allowances to the cooking worker as Plaintiff 2, 4, and 5 according to the work experience in the relevant field (three years, five years, eight years, and ten years). On the other hand, in the case of Plaintiff 1 and 3 who are employed in the kitchen, the defendant's assertion that the special work allowances are not paid for overtime hours is not considered, and therefore, the defendant's aforementioned special work allowances are not paid to the plaintiff 2.

C. Whether the comprehensive wage contract is valid

(1) According to Article 55 of the Labor Standards Act, an employer shall, in principle, determine basic wages and pay them in addition to various allowances, such as overtime work allowances, based on the determination of such basic wages when concluding an employment contract. However, where an employer concludes a wage contract with the purport of facilitating the calculation of working hours, the form of work and the nature of work, which provides a certain amount as various allowances, with the consent of the employee, in light of the collective agreement or the rules of employment, the relevant agreement does not disadvantage the employee in light of the collective agreement or the rules of employment, and where it is deemed justifiable in light of all the circumstances, such contract shall be effective (see, e.g., Supreme Court Decisions 95Da4056, Apr. 25, 1997; 9Da26385, Jun. 11, 1999). However, it does not violate the criteria prescribed under the Labor Standards Act to deem that a comprehensive wage payment contract does not have any disadvantage to the employee, and thus, it does not constitute a waiver of a comprehensive wage contract under the Labor Standards Act.

In the instant case, according to the above evidence, “the Military Welfare Support Group” is deemed to have been paid 60% of the amount that was naturally paid by adding the fixed amount of service charges (8%) to the customers who work at a restaurant within the physical training center that is expected to engage in overtime work by April 30, 2004, without calculating the actual hours of overtime work for all the employees who were employed at the 40th day before the suspension of the payment of the above “work allowances.” In light of the above facts that the Plaintiffs’ payment of overtime work allowances by 30 days before the above “work allowances” and “work allowances” by 40 days before the suspension of the payment of the above “work allowances,” the Plaintiffs’ payment of overtime work allowances by 30 days after the comprehensive work allowances by 40 days before the suspension of the payment of the above “work allowances,” and the facts that the Plaintiffs’ payment of overtime work allowances by 40 hours after the comprehensive work allowances by 30 days or more under the Labor Standards Act are clearly deemed to have been made.

Accordingly, the plaintiffs argued that the comprehensive wage contract of this case is null and void from the beginning because it was paid as incentives for the shortage of monthly salary, not in the case of service fees (in the case of overtime work allowances). However, even if the circumstances during which the payment was made were to be made as incentives for the shortage of monthly salary, in fact, 60% of the amount paid by adding a fixed amount of service charges (8%) to the service charges for facilities from the customers from among the workers working at the restaurant in the training center in the training center, was paid in installments for each working hours, and it seems to have been aware that the workers who received the payment was paid in installments for overtime work hours. Accordingly, it is reasonable to view that the comprehensive wage contract of this case was paid for overtime work allowances, and considering this, it cannot be deemed that the comprehensive wage contract of this case was unfavorable to the plaintiffs who are workers. Accordingly, the above assertion by the plaintiffs is without merit.

(2) Therefore, from May 1, 2004 where the comprehensive wage contract of this case was invalidated, the defendant should pay the difference between the actual amount ("overtime work allowance") under the comprehensive wage contract of this case from the overtime work allowances that could have been paid to the plaintiffs from around May 1, 2004, and the plaintiffs' ordinary wages during the period of service is as stated in the "ordinary wage column" in the attached Table 2. The difference between the overtime work allowance of this case and the plaintiffs' actual payment of overtime work allowance of this case is equal to the amount stated in the "total balance" column in the attached Table 3 attached hereto. Thus, the defendant is obligated to pay to the plaintiffs 1 as the next day from September 6, 2004; from October 16, 2004 to 15, 2004; from October 16, 2004 to 2014; from 30% of the above ordinary wages; from 15th day to 15th day to 2015 to 15th day of the plaintiff 1.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiffs corresponding to the above recognition fee of the court of first instance is revoked, and the remaining appeal of the plaintiffs is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Jong-soo (Presiding Judge)

1) The term “person” means a person employed as a civilian status in accordance with the organization schedule of the Navy (Article 3 subparag. 8 of the Welfare Work Regulations).