[1] In a case where the labor-management agreed on the calculation method of additional wages for overtime work but the amount calculated according to the labor-management agreement does not meet the standard prescribed in the Labor Standards Act, the validity of the labor-management agreement (negative) and whether the invalidated part should comply with the standard prescribed in the Labor Standards Act (

[2] In a case where, in a collective agreement, etc. applicable to Gap, a driver Eul, who is engaged in passenger transport service, determined weekly work hours including 8 hours of contractual work and 1 hours of overtime work, 9 hours of overtime work hours including 8 hours of overtime work, 5 hours of overtime work, and "monthly set-off agreement" which stipulates that monthly overtime work hours shall not be calculated on a daily basis but shall be offset on a monthly basis, the case holding that the aforementioned set-off agreement is null and void as it violates the Labor Standards Act, since only the amount equivalent to ordinary wages is calculated as wages for the portion offset that overlaps with the contractual work hours during the actual extension work hours, and the amount falls short of the standard under Article 56 (1) of the Labor Standards Act, since the amount

[1] The provisions of the Labor Standards Act stipulating that overtime work should be paid in addition to 50% or more of ordinary wages. Thus, in cases where the labor and management agree on the calculation method of additional wage for overtime work, if the amount calculated under the labor and management agreement does not reach the standard prescribed under the Labor Standards Act, the labor-management agreement is null and void as much as the part is, and the invalidated part shall comply with the standard prescribed under

[2] In a case where a collective agreement, etc. that applies to a passenger transport service company Gap, a driver Eul, etc., who is employed by the passenger transport service company Gap, provides weekly work hours including 8 hours for contractual work and 9 hours for overtime work, and overtime work days, 5 hours for overtime work, and "monthly offset agreement" that stipulates hours for overtime work to offset overtime work by a monthly unit not for a daily basis but for a monthly basis, the case held that the judgment below erred by misapprehending the legal principles on the grounds that the aforementioned offset agreement is null and void since the aforementioned offset agreement violates Article 56(1) of the Labor Standards Act, on the grounds that the aforementioned offset agreement is inconsistent with the standard prescribed in the Labor Standards Act, on the ground that the total work hours per month are calculated based on the number of days of service, and that there is a difference between the contractual work hours and the total overtime hours without distinguishing whether the work hours subject to wage calculation are contractual work hours or extension hours, and that only the amount equivalent to ordinary wages should be added to overtime work hours, and thus, the amount should be calculated as wages.

[1] Articles 15, 50(1) and (2), and 56 of the Labor Standards Act / [2] Articles 15 and 56 of the Labor Standards Act

[1] Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 (Gong2014Sang, 236)

Plaintiff 1 and four others (Attorney Kim Young-deok, Counsel for the plaintiff-appellant)

Young Passenger Transport Co., Ltd. (Law Firm Samong, Attorney Yu Byung-ok, Counsel for defendant-appellant)

Seoul Northern District Court Decision 2015Na30648 decided May 23, 2017

Of the part of the judgment below against the plaintiffs, the part of the plaintiffs' claim for unpaid overtime allowance, the part of the plaintiffs' claim for unpaid retirement allowance, plaintiffs 2, 3, 4, and 5 are reversed, and this part of the case is remanded to the Seoul Northern District Court. The remaining appeals by the plaintiffs are dismissed.

The grounds of appeal are examined.

1. Whether bonuses constitute ordinary wages;

The lower court determined that bonuses that the Defendant did not pay to retired workers during the period of payment assessment under a collective agreement do not constitute ordinary wages.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding ordinary wages.

2. Validity of an agreement to offset working hours per month;

A. Articles 56, 50(1), 50(2), and 50(1) of the Labor Standards Act provide that overtime allowance shall be paid for overtime work exceeding 40 hours per week, 50/100 of ordinary wages (Article 56 of the Labor Standards Act was amended by Act No. 15513, Mar. 20, 2018; however, the part concerning overtime allowance does not vary before and after the amendment). Article 15 of the Labor Standards Act provides that a labor contract that sets working conditions that fall short of the standard prescribed in the Labor Standards Act shall be null and void only in its part, and the part which is null and void therefrom shall be in accordance with the standard prescribed in the Labor Standards Act.

The provisions of the Labor Standards Act that provide that overtime work shall be paid in addition to 50% or more of ordinary wages. As such, in cases where a labor-management agreement is reached on the calculation method of additional wages for overtime work, if the amount calculated according to the labor-management agreement does not reach the standard prescribed in the Labor Standards Act, the labor-management agreement is null and void, and the invalidated portion shall comply with the standard prescribed in the Labor Standards Act (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) From August 2009 to September 2012, the Defendant paid wages to drivers under its jurisdiction, including the Plaintiffs, in accordance with the collective agreement and wage agreements concluded between the Seoul Metropolitan Government Bus Transport Business Association and the Korea Automobile Transport Union (hereinafter “instant collective agreement, etc.”).

(2) Under the instant collective agreement, etc., which applies to the Plaintiffs, the system of drivers’ work was based on two-hours per day and 40-hour work per week (hereinafter “day of weekly work”), and the overtime work day, which consists of a week, was set to have five-hour overtime work.

(3) Under the instant collective agreement, etc., the day of weekly work is nine hours including 8 hours of contractual work and 1 hours of overtime work, and the day of overtime work is five hours of overtime work (hereinafter “instant guarantee hours”). Meanwhile, under the instant wage agreement, the hours of weekly work are set off on a monthly basis, not on a daily basis, and the hours of overtime work are set off on a monthly basis, and under the instant collective agreement, the said hours of overtime work are set off on a monthly basis in cases where the said hours of overtime work falls short of or exceed 5 hours (hereinafter “instant set-off agreement”).

However, even if the actual working hours per month do not reach the above guarantee hours, the Defendant paid the Plaintiffs overtime allowance for one hour for overtime work (150% of the hour wage), five hours for overtime work, and three hours for overtime work (150% of the hour wage), and three hours for full-time night work for full-time workers, and three hours for full-time night work for full-time workers, and accordingly, paid night work allowance (150% of the hour wage).

C. We examine these facts in light of the legal principles as seen earlier 2. A.

(1) The instant monthly set-off agreement refers to the following agreements that determine overtime hours between labor and management on a monthly basis, taking into account the form of work or the characteristics of the working environment. ① A certain number of hours based on the instant guarantee hours regardless of actual working hours (one hour per day and five hours per day in case of weekly working days, and five hours per day in case of overtime work days) shall be deemed overtime hours: Provided, That even if the actual working hours per day exceed those deemed as above, the excess working hours are not immediately acknowledged as additional overtime hours, and where an employee worked overtime in excess of the aggregate of the instant guarantee hours on a monthly basis, the excess working hours are recognized as additional overtime hours other than those deemed as above.

According to the above agreement, an employee may be granted additional overtime hours by proving that he/she worked in excess of the monthly total of the guaranteed hours of this case, and it is not readily concluded that the said agreement is null and void solely on the basis that he/she agreed to settle the wage calculation hours according to actual working hours.

(2) However, the instant monthly set-off agreement takes the method of calculating the additional overtime hours by comparing the monthly total working hours of the instant guaranteed hours calculated based on the number of working days. As can be seen, where the part that offsets with the contractual working hours during the actual overtime hours is made by simply comparing the working hours without distinguishing whether the working hours subject to wage calculation are contractual work hours or overtime work hours, the amount equivalent to the ordinary wage is calculated as wages. As such, for the said part, the amount equivalent to 50/100 or more of the ordinary wage should be added to the overtime work, the standard under Article 56(1) of the Labor Standards Act, which states that the ordinary wage should be added to the overtime work.

Although the collective agreement, etc. of this case can be deemed to have treated workers more favorably than the standard prescribed by the Labor Standards Act in relation to night work allowances, even in the month when the actual working hours per month fall short of the total monthly total working hours of this case calculated according to the number of working days, it does not affect the conclusion that the monthly offset agreement on overtime allowances of this case is in violation of the Labor Standards Act.

(3) Ultimately, in a case where the amount of overtime allowance calculated pursuant to the monthly offset agreement of this case falls short of the amount calculated pursuant to the Labor Standards Act, the said offset agreement is deemed null and void as it violates the Labor Standards Act.

D. Nevertheless, the lower court did not examine whether the monthly offset agreement of this case is null and void in detail on a monthly basis, and on the ground that if only the monthly offset agreement of this case becomes null and void by separating only the monthly offset agreement of this case, it would impair the intent of the wage agreement considering the overall interests of both parties. In so determining, the lower court erred by misapprehending the legal doctrine on the calculation method of overtime allowances under the Labor Standards Act and Article 15 of the Labor Standards Act, thereby failing to exhaust all necessary deliberations. The allegation in the grounds of appeal assigning this error is with merit

On the other hand, the court below applied the monthly offset agreement of this case by comparing the actual working hours calculated by adding the monthly working hours to the monthly total of the guaranteed hours calculated according to the number of working days without distinguishing weekly working days and overtime work days. However, in the case of weekly work days, the wage agreement of this case is stipulated in the wage agreement of this case, and in the case of overtime work days, the collective agreement of this case is separately stipulated in the collective agreement of this case, so there is room to interpret that the monthly offset agreement of this case is limited to the offset of overtime work hours by the same day, and therefore, it is necessary to review this.

3. Scope of reversal

Of the part of the lower judgment against the Plaintiffs, there exist grounds for reversal as seen earlier regarding the part of the Plaintiffs’ claim for unpaid overtime allowance. On the other hand, in cases where the scope of accepting the claim for unpaid overtime allowance differs in consideration of the purport of reversal after remanding the case, the scope of accepting the claim for unpaid retirement allowance of Plaintiffs 2, 3, 4, and 5, which are the average wage, may vary. Therefore, the part of the Plaintiffs’ claim for unpaid retirement allowance among the part against which the said Plaintiffs lost should also be reversed

4. Conclusion

Of the part of the lower judgment against the Plaintiffs, the part regarding the Plaintiffs’ claim for unpaid overtime allowance, the part regarding the Plaintiffs’ claim for retirement allowance not paid by Plaintiffs 2, 3, 4, and 5 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by the Plaintiffs are dismissed. It is so decided as per Disposition by the assent

Justices Lee Dong-won (Presiding Justice)