The method of determining whether the wage paid to workers falls short of the minimum wage under the Minimum Wage Act, and whether the weekly holiday allowance, which is the wage for paid holidays paid under the weekly wage system or monthly wage system, is included in the “wages for the application of the minimum wage” (affirmative)

Article 6(1) and (4) of the Minimum Wage Act; Article 5(1)2 and 3 of the Enforcement Decree of the Minimum Wage Act; Article 2 [Attachment Table 1] of the Enforcement Rule of the Minimum Wage Act; Articles 2(1)7 and 55 of the Labor Standards Act

Supreme Court Decision 2006Da64245 Decided January 11, 2007 (Gong2007Sang, 289), Supreme Court Decision 2015Da7879 Decided November 9, 2017, Supreme Court Decision 2016Do8729 Decided December 28, 2017

Plaintiff

Defendant (Attorney Kim Hyun-soo, Counsel for the defendant-appellant)

Seoul Central District Court Decision 2013Na25872 Decided May 29, 2014

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 6(1) of the Minimum Wage Act provides that “An employer shall pay workers to whom the minimum wage is applied at least the minimum wage amount.” Article 6(4) of the same Act provides that “wages, other than those regularly paid once or more a month, as determined by the Minister of Employment and Labor (Article 2(1)1),” “wages, other than those paid for contractual work hours or prescribed working days as determined by the Minister of Employment and Labor (Article 2(1)7 of the Labor Standards Act)” and “other wages as determined by the Minister of Employment and Labor deemed inappropriate to be included in the minimum wage amount (Article 2(1)3) shall not be included in the wages under paragraph (1). Furthermore, the Enforcement Rule of the Minimum Wage Act provides that the scope of wages that are not included in the minimum wage amount (Article 2 [Attachment 1] shall be included in the amount of wages excluded from the minimum wage amount among the paid wages (Article 2(1)1, and thus, whether the paid wages fall short of the minimum wage amount shall be determined based on the amount of wages excluded from the paid weekly wage or weekly wage.”

In addition, Article 5(1)2 and 3 of the Enforcement Decree of the Minimum Wage Act provides that the amount calculated by dividing the wages paid on a weekly or monthly basis among comparable wages by the “number of contractual work hours per week or per month” shall be the wage per hour. Here, contractual work hours refer to the work hours determined between an employee and an employer within the scope of work hours under Articles 50 and 69 of the Labor Standards Act or Article 46 of the Occupational Safety and Health Act (Article 2(1)7 of the Labor Standards Act) and the standard number of hours for the calculation of ordinary wages. As such, work hours related to weekly paid holidays paid on a weekly or monthly basis need not be considered (see, e.g., Supreme Court Decisions 2006Da64245, Jan. 11, 207; 2015Da7879, Nov. 9, 2017; 2017Do286, Dec. 28, 2017).

2. The lower court calculated the Plaintiff’s average monthly working hours by aggregating the working hours in consideration of premium pay according to overtime and night work hours, and the hours related to weekly working hours, and determined that the amount calculated by dividing the monthly wage paid by the Plaintiff pursuant to the comprehensive wage system by the said hours as the wage per hour pursuant to Article 5(1) of the Enforcement Decree of the Minimum Wage Act.

In light of the aforementioned legal principles, it is reasonable that the lower court calculated by converting the wages into the monthly wage per hour pursuant to Article 5(1) of the Enforcement Decree of the Minimum Wage Act, and taking into account the premium rate for overtime and night work. However, given that the hours related to weekly holiday allowances do not constitute contractual work hours under Article 2(1)7 of the Labor Standards Act, the sum of the monthly contractual work hours during the weekly paid hours constitutes “when the lower court made a decision contrary to the precedents of the Supreme Court” under Article 3 subparag. 2 of the Trial of Small Claims Act. The allegation contained in the grounds of appeal on this point is with merit.

3. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)